Court not inclined to grant bail when witnesses are yet to be examined: High Court of Jammu and Kashmir

In cases where there are witnesses have not yet been examined, the Court will not be inclined to grant bail to the accused. This is due to the possibility that the accused can influence these witnesses and hence alter the path of the trial. This was held in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Rajnesh Oswal in the case of Sunny Choudhary v State of Jammu and Kashmir [B.A. No. 125/2018] pronounced on 23rd August 2021.

The petitioner, Sunny Choudhary filed the present application seeking bail from the FIR No. 66/2014 dated 20th March 2014. The petitioner is accused of committing murder, criminal trespass, rioting with a deadly weapon, unlawful assembly, mischief, criminal conspiracy and abetment to criminal activity which is punishable under Sections 302, 460, 148, 149, 427, 120B and 109 of the Ranbir Penal Code respectively. Additionally the petitioner has also been accused of possession of unlicensed weapons punishable under Section 4/25 of the Arms Act of 1959. 55 witnesses had been mentioned in the challan, however at the time only 11 of these witnesses had been examined by the prosecution. Furthermore none of these mentioned witnesses delved any information in their statements that either supported or weakened the prosecution’s case.

The petitioner submitted that he had been falsely implicated in the case and that there was no evidence against him on record that could establish any guilt beyond doubt. The petitioner further contended that no injury had been inflicted on the victim Mohinder Kumar by outside people and it was only his own family members who were responsible for his death. The FIR mentioned that all other people who had allegedly murderer Mohinder Kumar had met and consulted the petitioner just before the murder had taken place and for this reason the prosecution submitted that the petitioner too was guilty of the aforementioned offences. The petitioner further contended that the trial has been going on for seven years now and that his right to speedy trial was being violated by the Court as 44 witnesses were yet to be examined and covid-19 was slowing down time of the trial.

The Court came to the conclusion that “There are serious allegations against the petitioner of hatching a conspiracy for committing murder and arranging the killers in pursuance of the said conspiracy. At this stage, it cannot be determined that the allegations are either false or not true as number of other witnesses are yet to be examined and there is every chance that if the petitioner is enlarged on bail, he may influence the witnesses as the petitioner is facing trial for commission of offence, which is punishable with death or imprisonment to life”. With respect to the time taken for the trial, it was held that “perusal of record shows that the trial court has conducted the effective proceedings and even to secure the presence of the complainant-PW-1, trial court has resorted to even coercive process. It requires to be noted that for the last two years, the courts have been functioning in restricted mode and obviously some delay has caused due to Covid-19 pandemic in conducting the trial of the case”.

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