STATE Vs. GH NABI WANI

JUDGEMENT

(1.) ON 12 -9 -1975, the Chief Judicial Magistrate Srinagar, granted bail to Ghulam Nabi Wani, one of the three accused persons in F.I.R. No. 255 of 1975 Police Station Kothibagh. The case was originally registered under section 409 R.P.C. and later on, converted into one under sections 409, 467 and 420 R.P.C. On this basis primarily the prosecution moved the learned Magistrate for cancellation of bail granted to Ghulam Nabi Wani. Meanwhile the two remaining accused persons, Bashir Ahmad Khan and Ghulam Mohd Shah, also applied for bail. All the three applications were decided by the learned Chief Judicial Magistrate, Srinagar by his order dated 22 -9 -1975. He dismissed the applicatton "of the" prosecution as also that moved by Ghulam Mohammad Shah. He, however, allowed the application of Bashir Ahmad Khan and enlarged him on bail. While disposing of the applications the learned Magistrate, inter alia, made the following observations : "Admitting this for the sake of arguments to be true these allegations does not disclose an offence of 467 RPC. The said allegations at the best made a case under section 477 -A RPC which is punishable with imprisonment for a term of seven years or with fine or with both. I do not think that these circumstances by itself entitle the prosecution for applying for cancellation of bail. Accused is a State subject and there are -no allegations that he will abscond. The bail is a rule and rejection of it is an exception, is a well settled rule and unless the prosecution brings the case under any exception the bail cannot be refused and no question of cancellation arises unless such exceptions are brought forth. The surmises and conjectures of the prosecution are no good ground for cancelling the bail. The application for cancellation is, therefore, rejected. The said accused will, however, during the investigation remain present whenever required by the Prosecution Agency. He is also admitted to bail under section 477 -A R.P.C. and if bail to the tune of Rs. 1000/ - is furnished he shall not be arrested. It was argued that a number of permits have been forged in order to embezzle the goods from the ration depot and in this behalf the prosecution relies upon the documents maintained by the two accused namely Ghulam Mohd Shah and Bashir Ahmed Khan. Ration Clerk. An examination of the case diaries and the permits and the counterfoils of the permits show that a number of permits have been foreged. Such permits retarding rice are by now 136 in number, regarding Atta there are 38 such permits and regarding sugar there are about 338 of such permits. In these cases in the issued permits the quantity issued by the Tourist Officer and prepared by the Tourist Clerk has been enhanced and the quantities of wheat, rice and sugar have been taken from the stores according to the permits forged. The counsel for the accused have no argument with regard to the variation in the issued permits and its counterfoils. The question, however, upon whom the responsibility for forging these issued permits amongst the three accused lies. There is no evidence about this so far as the Tourist Officer and the Ration Clerk is concerned. Otherwise also there appear to be reason for casting the responsibility upon these two persons."

(2.) THE State has filed this revision petition and prayed that the bail granted to Ghulam Nabi Wani and Bashir Ahmad Khan be cancelled or, in the alternative, the observations of the learned Magistrate cited above be expunged.

(3.) THE crux of the order is that, in the opinion of the learned Magistrate, there are no good grounds for believing that Ghulam Nabi Wani and Bashir Ahmad Khan have committed alleged offences while the same does not hold true about Ghulam Mohd Shah. The opinion is based on a prima facie view of the evidence taken by the learned Magistrate. The learned Additional Advocate General contended that the view taken by the learned Magistrate was erroneous. May be, that it is so. But that will not entitle this court, sitting in revision, to re -appraise the evidence and reverse the order based thereon because the law is well settled that a revisional court will not disturb a finding of fact even if it be erroneous unless it is erroneous in the sense that it is perverse. It is nowhere alleged in the petition nor also was it contended at the hearing that the order was erroneous in the sense that it was perverse. Therefore I am not inclined to reverse the order. The request for cancellation of the bail is rejected. That will not, however, preclude the prosecution, at a later stage, from moving the committing court or even the trial court, if the case is committed, or prevent any of these courts from -cancelling the bail, if satisfied that the material brought on record before the Court justifies such action. In fact it the prosecution really felt that the prima Jade view taken by the learned Magistrate was not correct, they should have promptly filed the challan, produced the material evidence and then applied for cancellation of the bail and insisted on a re -appraisal of the evidence. The learned Additional Advocate General could not verify if the challan has been filed till now. If the challan has not been filed so far despite the fact that more than 5 months have elapsed since the impugned order was made, that is only to be regretted, particularly so, because it has unnecessarily added up the calamity of the accused Ghulam Mohd Shah who is in lock up on account of the fact that the bail has been refused to him.