CRM(M) No.656/2023 Page 1 of 15

IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH AT SRINAGAR

Reserved on: 31.08.2024

Pronounced on: 13.09.2024

CRM(M) No.656/2023

BILAL AHMAD LONE ... PETITIONER(S)

Through: - Mr. Zahid Hussain Dar, Advocate, with

Mr. Bhat Shafi, Advocate.

Vs.

UT OF J&K & OTHERS …RESPONDENT(S)

Through: - Mr. Satinder Singh Kala, AAG, with Ms. Raheela Khan,

Assisting Counsel-for R1

Ms. Yasmeema, Advocate, vice Mr. T. M. Shamsi, DSGI-

for R2 & R3.

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT

1) The petitioner, through the medium of present petition,

has invoked jurisdiction of this Court under Section 482 of

the Cr. P. C for challenging vires of Section 306(4)(b) of the

Code of Criminal Procedure and for grant of bail in a case

arising out of FIR No. 42/2020 for offences under Section

302, 364, 201, 436, 182 of IPC and Section 7/25 Indian

Arms Act registered with Police Station, Herpora Shopian,

which is stated to be pending trial before the Court of

Principal Sessions Judge, Shopian.

2) During the course of hearing, learned counsel for the

petitioner submitted that he would confine this petition to

the prayer relating to grant of bail and that he would give up

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the challenge to the vires of the provisions contained in

Section 306(4)(b) of the Cr. P. C.

3) The facts leading to the filing of this petition are that

on 18.07.2020, a complaint was received by Police Station,

Herpora, Shopian, from Major Kush, Adjutant-62 RR, to the

effect that he had received information with regard to hiding

of unknown terrorists in Village Amshipora, as a

consequence whereof, on 17.07.2020, a cordon and search

operation was launched during which three unidentified

hardcore terrorists got neutralized. It was also informed that

two pistol with two magazines, four empty pistol cartridges,

15 live cartridges and 15 empty cartridges of AK series

weapon and other objectionable items were recovered from

the site of encounter. On the basis of this information, police

registered FIR No.42/2020 for offences under Section 307

IPC, 7/27 Indian Arms Act and 16 ULA(P) Act and started

investigation of the case.

4) During investigation of the case, three unidentified

dead bodies were taken into possession by the police for

conducting their medical examination and DNA profiling. As

per the postmortem report, the cause of death of these three

unidentified persons was shown to be multiple firearm

injuries leading to hemorrhagic shock and cardio respiratory

CRM(M) No.656/2023 Page 3 of 15

arrest. Since the deceased persons could not be identified,

as such, a wireless message was flashed to all SHOs of the

Country so as to inform the family members of the missing

persons in their respective jurisdictions.

5) On 10.08.2020, a signal was received from I/C PP Peeri

Rajouri, whereby an information was received that three

persons, namely, Abrar Ahmad S/o Bagha Khan, Abrar

Ahmad S/o Haji Mohammad Yousuf and Imtiyaz S/o Sabir

Hussain, had gone to Kashmir to work as labourers but their

whereabouts are not known to their family members. The

Investigating Agency collected the DNA samples of the family

members of the missing persons of District Rajouri and

along with the said samples, DNA samples of three deceased

persons were sent to CFSL, Chandigarh, for analysis. Upon

receipt of the report of the CFSL, Chandigarh, the deceased

persons were identified as the above named three missing

persons of District Rajouri.

6) During the course of investigation, it was found that

the above named three persons were killed by the main

accused, namely, Captain Bopinder Singh @Major Bashir

Khan, of 62-RR, and involvement of two more persons,

namely, Tabish Nazir and Bilal Ahmad Lone (petitioner

herein) was also established. It was also found that the above

CRM(M) No.656/2023 Page 4 of 15

named three deceased persons did not have any links with

any terrorist organization. Accordingly, after investigation of

the case, offences under Section 302, 364, 201, 436, 120-B,

182 IPC and Section 7/25 Indian Arms Act were found

established against the aforenamed three accused persons

including the petitioner herein.

7) It appears that during investigation of the case,

accused Tabish Nazir as well as the petitioner herein were

arrested on 28.09.2020. Accused Captain Bopinder Singh

@Major Bashir Khan was detained by the Army Authorities

for facing trial in Court of Enquiry. The said accused was

being tried by the General Court Martial.

8) It appears that the petitioner herein consented to

become an approver and, as such, in terms of order dated

14.12.2020 passed by the learned Chief Judicial Magistrate,

Shopian, he has been tendered pardon on the condition of

his making a full and true disclosure of whole of the

circumstances relating to the occurrence.

9) It seems that the petitioner had approached the Court

of learned Principal Sessions Judge, Shopian, for grant of

bail in his favour but his application came to be dismissed

by the said Court in terms of order dated 20.07.2023,

primarily, on the ground that in terms of clause (b) of sub-

section (4) of Section 306 of the Cr. P. C, a person accepting

CRM(M) No.656/2023 Page 5 of 15

a tender of pardon has to be detained in custody until

termination of the trial.

10) The petitioner has, while urging this Court to grant him

bail, contended that he has testified against the accused

persons twice, firstly before the civil court where the co-

accused, Tabish Nazir, is facing trial and second time before

the Court Martial where the main accused Captain Bopinder

Singh @Major Bashir Khan was facing trial. It has been

contended that Captain Bopinder Singh @Major Bashir

Khan has been convicted by the Court Martial and the trial

of the co-accused, Tabish Nazir, is about to complete.

According to the petitioner, he has made true and complete

disclosure of all the facts and circumstances before both the

courts and, as such, his further incarceration in custody is

not warranted at all. It has been further contended that

Section 306(4)(b) of the Cr. P. C has to be interpreted in a

manner that would not defeat the mandate contained in

Article 21 of the Constitution. It is being contended that once

an approver has fulfilled the stipulated conditions by making

true and full disclosure of the circumstances during the trial

of the case, his further incarceration in custody would be

violative of Article 21 of the Constitution of India.

11) Respondent No.1 has filed its reply to the petition in

which it has narrated the facts relating to the prosecution

CRM(M) No.656/2023 Page 6 of 15

story. It has been contended that unless and until trial of the

case is complete, the petitioner cannot be enlarged on bail in

view of the mandate contained in Section 306(4)(b) of the

Code of Criminal Procedure.

12) Respondent No.2-Union of India, in its reply to the

petition, has submitted that Summary General Court

Martial against Captain Bopinder Singh commenced on

10.01.2022 and it concluded on 17.01.2023, whereafter the

aforenamed Army Officer has been sentenced to be

“cashiered and to suffer imprisonment for life”. It has been

further submitted that the sentence has been confirmed on

18.07.2023, whereafter the said sentence has been

suspended by the Armed Forces Tribunal, New Delhi, in

terms of order dated 9

th November, 2023 and the said Army

Officer has been released on bail.

13) I have heard learned counsel for the parties and

perused record of the case.

14) The question that is required to be determined in this

case is as to whether, in view of the provisions contained in

Section 306(4)(b) of the Cr. P. C, an approver can be granted

bail at a stage when the trial of the case is yet to conclude.

In order to understand the legal position on the subject, it

would be apt to notice the provisions contained in Section

306(4)(b) of the Cr. P. C, which read as under:

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“306. Tender of pardon to accomplice.—(1) With a view to

obtaining the evidence of any person supposed to have been

directly or indirectly concerned in or privy to an offence to

which this section applies, the Chief Judicial 134 Magistrate or

a Metropolitan Magistrate at any stage of the investigation

or inquiry into, or the trial of, the offence, and the Magistrate

of the first class inquiring into or trying the offence, at any

stage of the inquiry or trial, may tender a pardon to such

person on condition of his making a full and true disclosure of

the whole of the circumstances within his knowledge relative

to the offence and to every other person concerned, whether

as principal or abettor, in the commission thereof.

(2) This section applies to—

(a) any offence triable exclusively by the Court of Session

or by the Court of a Special Judge appointed under the

Criminal Law Amendment Act, 1952 (46 of 1952);

(b) any offence punishable with imprisonment which

may extend to seven years or with a more severe

sentence.

(3) Every Magistrate who tenders a pardon under sub-section

(1) shall record—

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the

person to whom it was made, and shall, on

application made by the accused, furnish him with a

copy of such record free of cost.

(4) Every person accepting a tender of pardon made under

sub-section (1)—

(a) shall be examined as a witness in the Court of the

Magistrate taking cognizance of the offence and in

the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in

custody until the termination of the trial.

(5) Where a person has accepted a tender of pardon made

under sub-section (1) and has been examined under sub-

section (4), the Magistrate taking cognizance of the offence

shall, without making any further inquiry in the case—

(a) commit it for trial—

(i) to the Court of Session if the offence is triable

exclusively by that Court or if the Magistrate taking

cognizance is the Chief Judicial Magistrate;

(ii) to a Court of Special Judge appointed under the

Criminal Law Amendment Act, 1952 (46 of 1952), if

the offence is triable exclusively by that Court;

(b) in any other case, make over the case to the Chief

Judicial Magistrate who shall try the case himself.”

CRM(M) No.656/2023 Page 8 of 15

15) From a perusal of the aforesaid provision, it is clear

that when a person accepts a tender of pardon made under

sub-section (1) and if such person is not already on bail, he

has to be detained in custody until the termination of the

trial.

16) The Supreme Court has, in the case of Suresh Chandra

Bahri vs. State of Bihar, 1995 Supp (1) SCC 80, while

discussing the object of requiring an approver to be detained

in custody until termination of the trial, observed that the

same is not intended to punish the approver for having come

forward to give evidence in support of the prosecution but to

protect him from the possible indignation, rage and

resentment of his associates in a crime whom he has chosen

to expose as well as with a view to prevent him from

temptation of saving his onetime friends and companions

after he is granted pardon and released from custody.

17) The question whether bail can be granted to an

approver during trial of a case came up for consideration

before this Court in the case of Mohammad Lateef Deedar

vs. State, 2010 Supreme (J&K) 308. This Court while

interpreting the provisions contained in sub-section (3) of

Section 337 of the J&K Cr. P. C, which is in pari-materia,

with the provisions contained in Section 306(4)(b) of the

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Code of Criminal Procedure, 1973, has held that High Court

is vested with jurisdiction to enlarge an approver on bail even

before conclusion of trial in appropriate cases. In this regard,

paras 11, 14, 15 and 16 of the said judgment are relevant to

the context and the same are reproduced as under:

“11. Sub section 3 of section 337 SVT 1989 cannot be

interpreted in a manner which would defeat the

mandate contained in article 21 of the Constitution of

India. What purpose is to be achieved by keeping an

approver in custody during the trial after he

satisfactorily complies with the terms and conditions of

the order of pardon. The custody of an approver is co-

terminus with fulfillment of terms and conditions of the

order of tender of pardon. The moment he complies with

the terms and conditions of tender of pardon, he gets

right to be released. Keeping such a person detained

until termination of the trial would not only be violating

the constitutional guarantees as contained in article 21

of the Constitution of India but would also tantamount

to inflicting punishment on him.

14. The expression 'unless he is already on bail' occurring

in sub section 3 of section 337 SVT 1989, apparently,

makes it writ large on the face of the statute that the

trial Court, in the facts and circumstances of the case,

has the power to grant bail to an accused person under

sections 497/498 Cr. P.C. It appears the said power of

admitting the accused person to bail is, thus, retained by

sub section 3 of section 337 SVT 1989 and has not been

taken away. Otherwise also sections 497/498 Cr. P.C.

confer discretionary power on the Court to admit an

accused to bail in accordance with the settled principles

and norms of law. If the Court of competent jurisdiction

is having jurisdiction to admit and enlarge an accused

person to bail, the said power of admitting an approver

to bail, if denied to the trial Court/Court of competent

jurisdiction, will inflict an irreparable damage on the

rights of the person who turns approver and is granted

pardon and satisfies the terms and conditions of the

tender of pardon. Such a person would land in worst

position vis-a-vis the perpetrators of crime. Assume a

situation that trial Court admits the accused person to

bail on some valid legal grounds, which would include

lack of material supporting the prosecution case, on the

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interpretation of sub section 3 of section 337 SVT 1989,

as put by learned counsel for the respondents, the

approver who has been tendered pardon has to remain

in custody until termination of trial. This will not only

create an absurd situation but will be against the basic

fundamentals of the Constitution. The provision of law

cannot be given such an interpretation which will create

an absurd situation and will render it unjust as well. The

power to grant or refuse bail is a power conferred by

statute on a Court of law. This power cannot be taken

away by any judicial interpretation as any such

interpretation will tantamount to legislating the law

which does not fall within the domain of Courts. The

expression 'unless he is already on bail' occurring in sub

section 3 of section 337 SVT 1989 preserves the power

of grant of bail, which power is correlated to the right to

personal liberty guaranteed under article 21 of the

Constitution of India. Sub section 3 of section 337 SVT

1989, thus, may not restrict the jurisdiction of the trial

Court to consider the grant of bail to an approver in

terms of sections 497/498 of SVT 1989. Otherwise the

sub section 3 of section 337 SVT 1989 would fall foul of

articles 14 and 21 of the Constitution of India. This issue

of competence of the trial Court to grant bail to an

approver has not been raised and debated, as such is left

open to be decided in an appropriate case.

15. The approver who is tendered pardon, on

satisfaction of conditions contained therein, ceases to

be an accused and has to get benefit of pardon, which

would mean that he is not to be punished. In such

eventuality, he may not even be required to be asked to

furnish bail and surety bonds. He can be released on

furnishing Undertaking/Personal bond to faithfully

continue to abide by the terms and conditions of tender

of pardon. The Hon'ble Supreme Court in case titled

State (Delhi Administration) Appellant v. Jagjit Singh-

Respondent, reported in 1989 Supp (2) SCC 770: AIR

1989 SC 598, has held that once an accused is granted

pardon under Code of Criminal Procedure (Cr.PC), he

ceases to be an accused and becomes witness for the

prosecution. It is further ruled that so long as the

prosecution does not certify that he has failed to comply

with the conditions of grant of pardon, he continues to

be a witness.

16. In view of the discussion made hereinabove, can it

still be said that an approver, who satisfies the terms

and conditions of the tender of pardon, cannot be

ordered to be released from prison. In order to meet

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such like eventualities, the legislators have enacted

section 561-A, Cr. P.C., SVT 1989 which provides Saving

of inherent power of High Court'. Section 337 SVT 1989

falls under chapter XXIV and section 561-A falls under

chapter XLVI. Section 561-A is reproduced hereunder:

"561-A. Saving of inherent power of High Court

Nothing in this Code shall be deemed to limit

or affect the inherent power of the High Court

to make such orders as may be necessary to

give effect to any order under this Code, or to

prevent abuse of the process of any Court or

otherwise to secure the ends of justice.

18) This Court again in the case of Mohammad Sultan Mir

vs. State of J&K, 2012 SCC Online J&K 78, has held that

the High Court in exercise of its powers under Section 482

of Cr. P. C is vested with jurisdiction to enlarge an approver

on bail in exceptional and reasonable cases. Similar view has

been taken by this Court in the case of Tariq Ahmad Dar

vs. National Investigating Agency, 2023 SCC Online J&K

236.

19) The High Court of Rajasthan in the case of Noor Taki

@Mamu vs. The State of Rajasthan, 1986 SCC Online Raj.

11 and the High Court of Jharkhand in the case of

Sudhanshu Ranjan vs. Union of India, 2022 SCC Online

Jhar 290, have also taken a similar view.

20) From the foregoing analysis of the law on the subject,

it is clear that this Court in exercise of its power under

Section 482 of the Cr. P. C is vested with jurisdiction to

enlarge an approver on bail even before culmination of the

CRM(M) No.656/2023 Page 12 of 15

trial provided there are exceptional and reasonable

circumstances involved in a particular case.

21) The inherent powers vested in the High Court in terms

of Section 482 of the Cr. P. C manifestly confirms the

aforesaid position of law. As per the aforesaid provision,

nothing in the Code of Criminal Procedure can limit or effect

the inherent powers of the High Court to make such orders,

as may be necessary to give effect to any order under the

Code or to prevent the abuse of process of Court or otherwise

to secure the ends of justice. Thus, any feter or restriction

contained in the Criminal Procedure Code, 1973, which

includes clause (4)(b) of Section 306 of the Cr. P. C, cannot

take away the powers of the High Court to grant bail to an

approver if it finds that the same is required to be done to

secure the ends of justice. It is obligatory for this Court to

interpret the provisions contained in Section 306(4)(b) read

with Section 482 of the Cr. P. C in a manner that would

advance the cause of justice, otherwise we may find cases of

hardship where an approver can approach the High Court

for release on bail but because of the provisions contained

in Section 306(4)(b) of the Cr. P. C, he may not be able to

secure bail. This would certainly be violative of Article 21 of

the Constitution of India, thereby posing a serious challenge

to the vires of Section 306(4)(b) of the Cr. P. C. It is, therefore,

CRM(M) No.656/2023 Page 13 of 15

imperative for the Court to interpret the said provisions in a

manner that would leave scope for the High Court to exercise

its inherent powers for releasing an approver on bail in

appropriate cases.

22) With the aforesaid legal position in view, let us now

advert to the facts of the present case. It is not in dispute

that the petitioner has been tendered pardon by the Court of

Chief Judicial Magistrate, Shopian, and he has accepted the

same. The record of the trial court shows that the petitioner

has, during the trial of the case which is pending against

accused Tabish Nazir, made his statement, a perusal

whereof reveals that he has disclosed full details of the

alleged crime and the same is in line with his statement

recorded by the Chief Judicial Magistrate, Shopian, at the

time of granting pardon in his favour. It is also not in dispute

that on the basis of the statement made by the petitioner

before the Summary General Court Martial, the main

accused, Captain Bopinder Singh @Major Bashir Khan has

been convicted and sentenced to undergo life imprisonment.

The trial court record shows that most of the prosecution

witnesses have already been examined and the trial is

nearing its completion.

23) So far as the allegations made in the chargesheet

against the petitioner are concerned, his role in the alleged

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crime appears to be of a peripheral nature, inasmuch as he

is stated to have accompanied the main accused to the site

of encounter and has stayed in his vehicle while the alleged

fake encounter took place. It is also noted by the trial court

in its order dated 20.07.2023, whereby application of the

petitioner for grant of bail was rejected , that the petitioner

is suffering from old burst fracture on L4 vertebra body with

retropulsion of the posterior fractured fragments with

acquired canal stenosis and has defused disc bulges with

L3-L4, L4-L5 and L5-S1 levels with neuro compression.

24) In the face of aforesaid facts, it is clear that there are

exceptional circumstances obtaining in the case at hand,

which deserve to be taken note of while considering prayer

for grant of bail to the petitioner, who has been in custody

for last about four years. The main accused is already on bail

and the trial against the co-accused is nearing its

completion. The petitioner has complied with the conditions

of pardon by making statement before the Court Martial as

well as before the trial court in line with his statement

recorded by the Chief Judicial Magistrate, Shopian, at the

time of tendering pardon to him. Apart from this, the

petitioner is also suffering from ailment. Therefore, this is a

fit case where the petitioner deserves to be enlarged on bail.

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25) For the foregoing reasons, the petitioner is admitted to

bail subject to the following conditions:

(I) That he shall furnish bail bond with one surety

in the amount of Rs.1.00 lac (rupees one lac)

each to the satisfaction of the trial court.

(II) That he shall not leave the limits of the Union of

Territory of Jammu and Kashmir without prior

permission of the trial court.

(III) That he shall not influence the prosecution

witnesses whose statements are yet to be

recorded by the trial court.

26) A copy of this order be sent to the learned trial court

for information.

(Sanjay Dhar )

Judge

Srinagar,

13.09.2024

“Bhat Altaf-Secy”

Whether the order is speaking: Yes/No

Whether the order is reportable: Yes/No

Mohammad Altaf Bhat

I attest to the accuracy and

authenticity of this document

13.09.2024 14:27