Petitioner who is a married person and has children to support, need not be kept in incarceration when his presence during trial can be ensured by stringent terms and conditions: The High Court of Jammu & Kashmir and Ladakh

In most of the cases it is not possible to prove agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to the conclusion and inference of an agreement between the two or more persons to commit offence. How these circumstances are required to be proved is elaborately dealt in the aforesaid citation and is an aspect, which is required to be considered and appreciated by the trial court at an appropriate stage. The aforementioned has been followed by High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Azad Ahmed Mir v. State (now Union Territory) of J&K [CRM(M) No.133/2020] which was decided upon by a single judge bench comprising Justice Sanjeev Kumar on 16th August 2021.

The facts of the case are as follows. the detenue was picked up by the BSF party of 30th Bn headed by Dilip Singh Rathore, Dy. Commandant on 12.02.1992 at the instance of the petitioner. It has also come in evidence recorded during investigation and the statements of witnesses recorded during trial that there was some pervious enmity between the petitioner and the detenue with regard to some payment of money and that it was at the instance f the petitioner, who was an informer of the security agencies, the residential house of the detenue was cordoned off on 12.02.1992 and the detenue was picked up on the identification of the petitioner. What happened to the detenue after he was taken over by the BSF personnel is not known to anybody. Initially a missing report was lodged by the father and brother of the detenue but after finding no whereabouts of the detenue for about four months, a formal FIR was lodged. Keeping in view the sensitivity involved, matter came to be referred to the Crime Branch for professional investigation. It is during this investigation, it was found that the detenue was last seen with the BSF party of 30th Bn headed by Dy. Commandant, Dilip Singh Rathore and thereafter his whereabouts were not known. He was, thus, presumed to have been killed in the custody of the BSF authorities. The Crime Branch found sufficient evidence against Mr. Dilip Singh Rathore, who was found responsible for the disappearance of the detenue from custody of BSF authorities. The investigating agency also found petitioner’s involvement in the crime, for, it was on his identification the detenue was picked up.

The court perused the facts and arguments presented. It was of the opinion that “I am not inclined to interfere with the ongoing trial against the petitioner nor do I find any legal infirmity in the charges framed. This petition is, therefore, devoid of any merit and the same is, accordingly, dismissed along with connected application(s).” further while adjudicating the issue of bail it declared that “Undoubtedly, charges against the petitioner are serious but this Court cannot lose sight of the fact that the prime accused in the disappearance/killing of the detenue, namely, Dilip Singh Rathore has been let off and held not guilty by the BSF court. Government of India, too, has declined to grant sanction for his prosecution to the Crime Branch. The main culprit, who has allegedly caused disappearance of the detenue while he was in his captivity, has been let off and is a free man and the petitioner is facing trial. In view of the aforesaid facts and circumstances, I am of the view that the petitioner, who is a married person and has children to support, need not be kept in incarceration, more so when his presence during trial can be ensured by stringent terms and conditions. The petitioner is, thus, held entitled to bail”

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