AB MAJID GILDSAZ Vs. STATE

JUDGEMENT

(1.) IN this bail application, it has been stated that the petitioners were arrested on 18 -8 -80 u/s 107/151 Cr.P.C. and were detained in various jails of Jammu province. On 4 -9 -80, it is alleged, that Abdul Majid Gildsaz Alias Shah and Abdul Majid Nasti were produced before the executive Magistrate at Anantnag who enlarged them on bail. Before they could come out from the court room, the said petitioners were taken again into custody and sent to judicial lock -up. On 11 -9 -80. the petitioner No: 3. i.e. Mohd Ramzan, was also brought from Jammu province and produced before the Executive Magistrate, who admitted him to bail; but as in the other two cases, this petitioner was also re -arrested and sent to Judicial lock -up. However, a challan u/s. 307, 148, 336, 332, 152, 153 (a), 149 RFC read with S. 13 (1) of the Unlawful Activities Act, was lodged against the petitioners before the Special Judge, i e. Sessions Judge Anantnag. A bail application was moved before him, but in view of the Amendment to the Code of Criminal procedure, effected through Ordinance No : 1 of 1980, the Special Judge was not satisfied that the accused petitioners have been able to show to him that there was no prima facie case against them. On this ground he rejected the application. The matter came up before the High Court and the order of Special Judge was maintained on the ground that powers of the High Court u/s 498 Cr. procedure code had been to a large extent taken away by the Amending Ordinance referred to above. The Ordinance referred to above has now been repealed and a new Act styled as The Criminal Law (Amendment) Act, 1980 Act No. XII of 1980. has come into force Section 17 of this Act is reproduced below: -

(2.) FROM a perusal of this section it appears that the powers of the High Court which allegedly had been withdrawn so far as granting of bail u/s 498 Cr P. C. were concerned have been restored to the High Court,

(3.) I have heard both the learned counsel for the parties in this regard and both of them agree at the powers of them agree that the powers of the High Court u/s 498 Cr, P. C. have been restored : But the learned Addl. Advocate General is of the view that even though the powers u/s 498 Cr. P. C. have been restored to the High Court the facts of the case were such in which the High Court should not exercise its discretion in favour of the applicants -accused and has vehemently submitted that the bail application be rejected I am, however, of the view that as no written objections have been filed by the learned Addl: Advocate General nor any case diary or record has been produced before me, I feel the facts as stated above, reveal that in the beginning the accused petitioners were taken into custody only u/s 107 read with Sec. 151 Cr. P. C. It appears that the other offences have been later on added, may be, after investigation It is further stated by the learned counsel for the petitioners that the medical report does not reveal any serious injury caused to any body in the incident and, according to him, there was no justification for having challaned the petitioners u/s 307 R. P. C. Without commenting at this stage, as to whether case against the accused -petitioners is made out u/s 307 R. P. C. or under any section of the Code, I am of the view that in view of the fact that the petitioners have been in lock -up since 18 -8 -80, the application for bail should be allowed.