GULZAR AHMAD NADAF Vs. STATE

JUDGEMENT

(1.) Order dtd. 25/7/2018 passed by the learned Chief Judicial Magistrate, Bandipora in an application for grant of bail(for short impugned order)is assailed in terms of the instant revision petition, while the prayer is being also made for admitting the petitioners to bail in case FIR No. 57/2018 P/S Bandipora under Ss. 420, 468 RPC registered against them.

(2.) It appears from the perusal of the petition that the learned Chief Judicial Magistrate, Bandipora, while dismissing the successive bail application vide order dtd. 25/7/2018 made certain observations, which read as, ,,....Admittedly in case of non-bailable offences not carrying the sentence of death or of an imprisonment for life in alternative, the court has got discretion in respect of bail and the sum and substance of the governing principles regarding exercise of discretion is that bail is a rule and its denial an exception, where there is no material on record suggestive of the fact that the accused if admitted to bail will jump over the concession of the same and will tamper with the prosecution witnesses. The personal liberty of an accused is guaranteed under Article 21 of the Constitution of the Country but the same can be refused to him in accordance with the procedure established under law as per the mandate of the Article 22 of the Constitution. The right to liberty of an individual needs to be balanced against the collective conscience of the whole society and social interests deserve to be preferred over the individual interests. Honble Apex Court and various other authoritative Honble courts of the country have from time to laid down the following guidelines/governing principles which are to be kept in minds while considering a bail application:-

(3.) On notice, learned GA submitted the reply in the case, wherein it is unfurled as under: That on 8/4/2018 the complainant namely Gh. Mohi ud din Lone R/o Aythmulla Bandipora approached with a written compliant to SHO Police Station Bandipora alleging therein that the accused persons namely Javid Ahmad Bhat S/o Ab. Aziz Bhat R/o Tulbagh Ganderbal; Gulzar Ahmad Nadaf S/o Gh. Hassan Nadaf R/o Nusoo Bandipora; and Hilal Ahmad Khan S/o Ab. Ahad Khan R/o Agrikalan Magam have shown him a donor certificate at Bandipora in the name of Nageena Akhter W/o Mohd Iqbal Teeli R/o Pandach Ganderbal and in the said donor certificate at the place of Mohd Iqbal Teeli the husband of said Nageena Akhter, the photograph of complainant is affixed giving the impression that the complianant is Mohd Iqbal Teeli instead of Gh. Mohi ud din Lone and by illegally affixing the photograph of complainant, accused persons managed a relationship donor certificate by committing fraud upon the office of Additional Deputy Commissioner, Ganderbal and some other offices on the basis of which the accused persons intend to get the complainant outside State in order to remove his kidney. The accused persons provided one Photostat copy of the said certificate/order issued from the Additional Deputy Commissioner, Ganderbal to the complainant in which the photographs of complainant and said Mst. Nageena were affixed as husband and wife which established that the accused persons by way of cheating complainant in getting his photographs and prepared the forged documents in order to get the kidney of complainant removed illegally. That on receiving the complaint case FIR No. 57/2018 under Ss. 420, 468 RPC has been registered in Police Station Bandipora and the investigation commenced and on the identification of complainant the site plan was prepared and the statements of witnesses were recorded. During the course of investigation the accused persons were arrested from Humhama Budgam to the effect of which a proper arrest memo was prepared investigation, statement of witnesses and the other evidence available offences under Sec. 420, 468 RPC were established against accused persons. That on 3/3/2018, the court of CJM Bandipora announced an order while deciding a bail application titled as Gulzar Ahmad Nadaf and others Vs. SHO Police Station Bandipora and has directed the Senior Superintendent of Police Bandipora to constitute a special investigation team(SIT) to investigate the above referred case. That while receiving the aforementioned order, a special investigation team headed by Dy.SP Bandipora was constituted. That while taking over the charge of investigation by the Dy.SP Bandipora, the complainant Gh.Mohi ud din Lone was brought before the court of CJM Bandipora for recording his statement under Sec. 164-A Cr.PC and as per the statement of the complainant offence under Ss. 120-B and 506 RPC were also added against the accused persons. During the course of investigation one Imtiyaz Ahmad Dar S/o Mohammad Shafi Dar R/o Bandipora was found to have also been approached by the above named accused persons for arranging a donor who will donate his kidney for his wife through illegal means. The said person was also called and produced before the court of learned CJM, Bandipora for recording his statement under Sec. 164-A Cr.PC. Beside, during the course of investigation statements of some other witnesses were also recorded under Sec. 161 Cr.PC and as per these statements offences under Ss. 420, 468, 120-B, 471, 201 and 506 RPC have got corroborated and established against the accused persons who were running an illegal organ transplant racket and were planning to sell the organs of the complainant and other persons for hefty considerations. That during the course of investigation, besides offences under Ss. 420, 468, 120-B, 506, 471 RPC offences under Ss. 18 & 19 of J&K Transplantation of Human Organs Act were also found established against the accused persons. That the investigation for offences under Sec. 18 & 19 of J&K Transplantation of Human Organs Act, 1997 can only be done by appropriate authority as mandated by Sec. 13 of the said Act which shall file a complaint before the competent court as laid down in Sec. 22 of the J&K Transplantation of Human Organs Act accordingly. As such, Director, SKIMS, who is the chairperson of appropriate authority under Sec. 13 of the Act was intimated vide office letter dtd. 7/6/2018 and requested to proceed as warranted under Ss. 13 and 22 of the said Act. That the expert opinion with respect to some documents has been sought from FSL during the course of investigation, which is still awaited. That the investigation was concluded as challan against the above named accused persons for offences under Ss. 420, 468, 471, 201, 120-B, 506 RPC and accordingly charge sheet was presented before the court of learned CJM Bandipora on 6/6/2018 pending expert opinion. No delay has been caused by the investigation agency during the course of investigation of the said case as the statement of witnesses has been recorded in a stipulated time as envisaged under Cr.PC. It is submitted that there arises no question of initiation of false and frivolous case against the petitioners.