Sr. No. 53 v. Union Territory Th. Police Station Shopian

16.12.2023. Two orders have been challenged in this case. However, before coming to the said orders, it is essential to briefly state the background of this case and also lay down the nature of the investigation conducted by the J&K Police in this case. Three cases were registered against the appellant of which he was arrested in two of them, as was stated by the Police.

2. On 13.11.2017, the first FIR came to be registered against the appellant at Police Station, Shopian under Section 341, 506 RPC and 16 of UAPA which is FIR No. 289/2017. In this case, the appellant was arrested and enlarged on bail on 29.07.2019. However, close on CrlA(D) No. 2/2024 c/w CrlA(D) No. 3/2024Page 1 of 6 Mohd Altaf Nima I attest to the accuracy and authenticity of this document

30.08.2024 heels of the first FIR, a second FIR was registered against him on

14.11.2017 at Police Station, Shopian under Section 506, RPC and 7/27 of the Arms Act and 38 UAPAwhich is an FIR No. 290/2017. The third case was registered on 29.03.2018 which is FIR No. 88/2018 registered by Police Station Shopian under Section 307 RPC and 7/27 of Arms Act, 16, 19 of the UAPA. In the 3rd case, bail has never been granted to the appellant. In the second case i.e., FIR No. 290/2017, the police state that they have not arrested the appellant. In FIR No. 88/2018, the appellant was arrested on 20.04.2018, in which he had moved an application for bail which was dismissed by the learned Principal District Judge Shopian on 04.07.2018.

3. On 29.07.2018, two days after he was enlarged on bail by the learned trial court in FIR No. 289/2017, the appellant while still in custody, was detained under the Public Safety Act on 31.07.2018. The said order of detention was quashed by this Court on 07.12.2018. Thereafter,on 17.01.2019, the appellant was again preventive detentionwhich order was also quashed by this Court on

27.05.2019. Immediately thereafter, the appellant was taken into detention under the Public Safety Act for the third time on 06.08.2019 and that order was also quashed by this Court vide order dated

26.02.2021.

4. Thereafter, the case against the appellant takes a very curious turn. While the appellant is still in judicial custody as an under trial in FIR No. 88/2018 (his application for bail having been rejected), the police and the Union Territory, in an act of inexplicable mercy bestowed upon the appellant,for reasons best known to them, releasethe appellant from jail on 20.03.2021 after the 3rdorder of detention is CrlA(D) No. 2/2024 c/w CrlA(D) No. 3/2024Page 2 of 6 Mohd Altaf Nima I attest to the accuracy and authenticity of this document

30.08.2024 quashed. Thereafter, continued remain a citizenfrom20.03.2021 till 19.07.2023 when the police filed the charge sheet before the learned trial court in FIR Nos. 88/2018and the appellant moved an application for default bail under Section 167(2) which is dismissed by the Ld. Court below . The charge sheet in and 290/2017and 88/2018 have been filed before the trial court.

5. The appellant had moved two applications before the court below both under Section 167(2) of CrPCfor grant of default bail. Both thebail applications have been dismissed by the aforementioned orders by the learned trial court holding that once the charge sheet is filed, the option of default bail under Section 167(2) available is not available.

6. These are the facts which have been culled out from the arguments put forth by both the sides. The Investigating Officer of this case Mr. Javed Ahmadhas appeared before this Court in person. He says that he was appointed as the Investigating Officer in this case a few days before filing of the charge sheet and he is the 6thInvestigating Officer in this case.

7. The shocking conduct of the police in having arrested the appellant in FIR No. 88/2018 and releasing the appellant after his third order of detention was quashed by ignoring the fact that the appellant was under judicial custody, is unknown to law. This indiscretion on the part of the police has gone unnoticed by the superiors in the hierarchy who were expected to take serious note of this lapse and identify and affix responsibility for this faux pax. Thus, in effect, the appellant who was in judicial custody remained free from 20.03.2021 till 19.07.2023 without there being an order of bail in his favour.However, that being said, the appellant continued to be a free person till 19.07.2023, after CrlA(D) No. 2/2024 c/w CrlA(D) No. 3/2024Page 3 of 6 Mohd Altaf Nima I attest to the accuracy and authenticity of this document

30.08.2024 which he was taken into judicial custodyas both his applications for grant of bail under Section 167(2) were dismissed.

8. There has been a grave oversight by the learned Court below. In paragraph No. 3 of the order while dismissing the bail application moved in FIR No. 88/2018, the learned trial court records:- “Learned PP has filed objections to this application resisting the bail of the petitioner on various grounds inter- alia that due to the gravity and seriousness of the offences, the material in the instant case is sufficient which clinches the judicial mind of the court and there are reasonable grounds for believing that the accused is guilty of offences alleged against him.” The trial court was duty bound to enquire from the Investigating Officer as to how the appellant remained outside the jail from

20.06.2021 till 19.07.2023 when he was never granted bail by the trial court. It was duty bound to bring to the notice of the J&K Police that by releasing him from jail while he was still under judicial custody without bail, the Police of UT of J&K had become accessories in the crime by assisting the accused, interalia charged for offences under the UAPA, by releasing him without bail and that too for a period of two years. The grace of the police also extended to not arresting the appellant in FIR No. 290/2017. Therefore, the situation as it exists today is that the appellant is in judicial custody only in FIR No. 88/2018 and in FIR No. 290/2017, he has never been arrested.The learned trial court has remained silent on this aspect. However, as regards its finding on law that the right under Section 167(2) for default bail stands extinguished when the charge sheet is filed is something this court cannot fault. CrlA(D) No. 2/2024 c/w CrlA(D) No. 3/2024Page 4 of 6 Mohd Altaf Nima I attest to the accuracy and authenticity of this document

30.08.2024

9. The right to the appellant for statutory bail arose between 20.06.2021 to 19.07.2023 when he was a free man but was still under constructive custody of the courtas no bail was granted to him by the trial court and the investigation has not concluded between the said period.The appellant ought to have applied before the learned trial court under Section 167(2) during that period before the filing of the charge sheet which undisputedly was never done.

10. This is the 2nd case in which one of us (Atul SreedharanJ) has seen similar set of facts. The other case is of Khusheed Ahmad Loneversus Union Territory of J and K (Crl. A(D) No. 61/2023), in which the appellant was released similarly by the police after the PSA proceedings against him were quashed by this Court while he was still an undertrial in the UAPA case, as his application for bail was rejected by the Ld. Trial Court. In that case, the appellant remained a free citizen for a period of nine years only to be taken into custody at the time of filing the chargesheet.

11. The conduct of the J&K Police is deplorable. The manner in which the investigation has been done is shocking and all this in a State afflicted by terrorist activity. The present Investigating Officer of the case also never bothered to ask his predecessors with regard to the reason as to how and why the appellant was released on 20.06.2021. The manner in which the investigation is done is most casual.

12. However, on facts, the learned trial court itself has held in paragraph No. 4 that the application under Section 167(2) was filed before the Court in the morning on 19th July 2023 and the charge sheet was filed only in the afternoon. Therefore, the findingon the legal aspect though correct, the law has not been applied to the factual circumstances of CrlA(D) No. 2/2024 c/w CrlA(D) No. 3/2024Page 5 of 6 Mohd Altaf Nima I attest to the accuracy and authenticity of this document

30.08.2024 the present case. In this case, admittedly, the application for default bail was filed even before the charge sheet was filed and, therefore, it ought to have been considered. In addition thereto, the state has not been able to make out a case as to why the continued incarceration of the appellant is necessary.

13. Under the circumstances, the appeal is allowed. The order passed by the learned trial court is set-aside. The appellant shall be released forthwith in FIR No. 88/2018 of Police Station, Shopian. CrlA(D) No. 3/2024 Learned counsel for the appellant wants to withdraw this appeal with liberty to move an application for anticipatory bail under Section 438 of CrPC. Therefore, the appeal is dismissed as withdrawn with aforesaid liberty. (JAVED IQBAL WANI) (ATUL SREEDHARAN) JUDGE JUDGE SRINAGAR: 07.08.2024 Altaf Whether approved for reporting? Yes/No CrlA(D) No. 2/2024 c/w CrlA(D) No. 3/2024Page 6 of 6 Mohd Altaf Nima I attest to the accuracy and authenticity of this document

30.08.2024