STATE Vs. MOHD ANWAR

JUDGEMENT

(1.) THE accused -respondents are alleged perpetrators of ghastly crime in which 12 persons out of whom eight were minor children have been brutally massacred by spraying bullets from AK -47 gun on the intervening night of 20/21.1.2002. FIR No. 13 was registered on 21.1.2002 for commission of offences under Sections 302, 307, 120B, 121, 122, 123 RPC and 7/25, 26 and 27 Indian Arms Act and 3/2 POTA at Police Station Mendhar at 10 -AM. One of the accused involved in the crime, namely Tazeem Ahmed son of accused -respondent Mohd Sharief and nephew of Mohd Anwar and Mohd Taj was eliminated by militants on the night of occurrence itself. The accused -respondents came to be arrested on 15.2.2002 and investigation was commenced. Challan however could not be filed till 23.8.2002 i.e. Within 180 days from the date of registration of the case and arrest of the accused. Learned Presiding Officer of the Designated Court under POTA was approached by the accused for grant of bail by way of an application -dated 31.7.2002. Learned Presiding Officer issued notice to the Public Prosecutor for objections and report. Prosecution filed objections admitting the fact that the accused stood arrested on 15.2.2002 but it was submitted that in view of the nature of the offences involved and in the interest of security of the State prayer of the accused for bail be not considered. Learned Presiding Officer of the Designated Court however granted bail to the accused by taking into consideration the fact of non -filing of challan within the prescribed period of 180 days in terms of Section 49 POTA read with Section 167 Cr.P.C. Pursuant to the furnishing of bail bonds the accused were released from custody on 14.11.2002. After obtaining sanction charge sheet was filed on 13.11.2002 for trial of the accused for the said offences. Charges were framed against the accused for commission of offences Under Sections 302, 307, 120B, 121 RPC and 7/25, 26, 27 I.A.A. and 3/5 POTA. And on their pleading not guilty prosecution was directed to lead evidence. By now prosecution has examined four witnesses. During the trial of the accused on 27.12.2002 prosecution filed an application for cancellation of bail of the accused but no order for disposal of the application one way or the other has been passed.

(2.) ABOUT 25 persons, some of whom are eye witnesses and who were injured in the occurrence, sent an application to My Lord the Chief Justice of this Court praying for His lordship's intervention and cancellation of bail granted to the accused -respondents. The application has been registered as Cr.Revision. Learned Advocate General and the accused, who are respondents, were put on notice.

(3.) THE basic questions arising for consideration are whether the learned Trial Judge was right in granting bail to the accused for default of the prosecution in presenting the challan? And what is the effect of filing the challan on the rigfit of the accused for continuing to be on bail?