Change of Circumstances Essential for Fresh Consideration of Bail Application: High Court of Jammu & Kashmir and Ladakh at Jammu

The question as to what would amount to change of circumstance in order for allowing of a petition for bail, was examined by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU, before a bench consisting of Hon’ble Mr. Justice Sanjay Dhar, in the matter of Bashir Ahmad Khan and Anr. vs. Union Territory of Jammu & Kashmir & Anr. [Bail App No.70/2021], on 16.12.21.

The facts of the case were that the petitioners, who are facing trial relating to charges for offences under Section 302, 120-B, 34, 343, 468, 471 of the Ranbir Penal Code, 1932 before the Court of Principal Sessions Judge, Srinagar, have moved the instant application for grant of bail.

The Learned Counsel for the Petitioners, contended that the petitioners are incarcerated since the year 2016 and the prosecution evidence in the case is yet to be completed. According to the petitioners, there has been unexplained and unreasonable delay in completion of the trial of the case, which entitles them to the grant of bail. It is further averred that the prosecution is deliberately delaying the recording of statements of prosecution witnesses. It was argued that the other ground urged by the petitioners is that they are suffering from serious ailments and their condition in the jail is worsening with each passing day. According to the petitioners, they are not being given proper medical treatment in the jail and, as such, keeping in view their medical condition, they deserve to be enlarged on bail. It was further contended that bail has been sought on merits claiming that, whatever evidence has been recorded by the prosecution in the case so far, the same does not even, prima facie, show the involvement of the petitioner in the alleged crime.

The Learned Counsel for the Respondents, pointed out that per contra, learned Deputy  Advocate General has objected to the grant of bail to the petitioners on the ground that earlier bail application has been rejected by the trial court on 19.04.2021 and without there being any change of circumstances, the instant bail application has been filed by the petitioners. It has been contended that the delay in completion of prosecution evidence is not attributable to prosecution. On the question of medical condition of the petitioners, it has been contended that the petitioners are not suffering from such a serious ailment which cannot be managed by the jail authorities and that the petitioners are being taken care of by the jail authorities so far as their medical condition is concerned. It was also argued further that the High Court cannot meticulously examine and appreciate the evidence led by the prosecution at this stage in these proceedings so as to conclude as to whether the trial against the petitioners would ultimately result in their conviction or acquittal.

In the instant case, the High Court of Jammu & Kashmir and Ladakh at Jammu, taking into account several precedents and the facts and evidence on record, acknowledged that it is clear that delay in commencement of trial of the case is solely attributable to the accused and not to the prosecution. It is true that some delay in completion of trial has taken place on account of restrictions in physical hearing of cases due to COVID-19 pandemic but that is an eventuality beyond the control of everybody. It was held that the same cannot be the sole ground for enlarging an accused on bail, particularly in a heinous offence like murder. It was also noted that having regard to the nature of ailments which the petitioners are suffering from and the report of jail authorities, it is clear that the petitioners are not suffering from any such ailment which cannot be managed inside the jail. The Court took note of the fact that the High Court, being a superior and Constitutional Court, has unfettered powers to entertain an application for grant of bail of an accused whose bail application has been rejected by an inferior Court but then there has to be some fresh grounds before the High Court to persuade it to take a view different from the one taken by the trial court. In the instant case, it was held that, no such ground has been urged that would persuade the Court to take a view different from the one taken by the learned trial court. In fact, the order of trial court is well-reasoned and lucid and the Court does not find any ground to take a different view. Thus, the petition was dismissed.

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Judgement reviewed by Bhargavi

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