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| HC grants interim bail to Mian Qayoom, declines to quash FIR | | | EARLY TIMES REPORT
Srinagar, Dec: 31 (JNF):- The High Court today granted interim bail to Kashmir Bar President, Mian Abdul Qayoom. However, another petition seeking quashment of FIR NO 102/2010 P/S Hira Nagar u/s 13 of Prevention of unlawful Activities Act, 121, 120-B and 124-A of RPC against Qayoom was dismissed. Both the petitions were heard by Justice Mansoor Ahmed Mir.
.In the bail petition it was submitted that the petitioner was indicted in a false case to prevent his release after revocation of first detention order and even the quashment of second detention order by the High Court.
The court after hearing Advocates ZA Qureshi and Manzoor Ahmed Dar for the petitioner and Senior Additional Advocate General AM Magray for the State observed that in the given circumstances the bail petition is transferred to the Principal Sessions Judge Kathua/ Trial Court for disposal under law by or before January 20, 2011, parties are directed to cause appearance before the Trial Court on January 5, 2011. Court directed that Mian Abdul Qayoom be released on interim bail till January 20, 2011 provided he is not required in any other case/cases subject to the conditions that he has to furnish bail bond to the tune of Rs 1 lac with two sureties of like amount to the satisfaction of Trial Court. He shall remain present before the Investigating Agency when ever required to do so. He shall not leave the territorial limits of J&K State without permission of Trial Court. He shall not try to win over or harass the prosecution witnesses in any way. In case he makes any disclosure statement which would lead to recovery, in that event he shall be deemed to be in police custody in terms of section 27 of Evidence Act. If the Trial Court refuses bail and rejects the bail petition, the petitioner has to surrender.
Court directed registry to convey the order to the Trial Court today itself and also copy of the same to counsel for the petitioner for placing the same before the Trial Court.
In another petition filed by the KBA seeking quashment of the FIR NO 102/2010 P/S Hira Nagar u/s 13 of Prevention of unlawful Activities Act, 121, 120-B and 124-A of RPC, it was submitted that SHO P/S Hira Nagar managed and manipulated filling of a false and frivolous FIR against the petitioner on unfounded and baseless ground. The FIR is aimed to cause harassment and indicted the petitioner in illegal and malicious prosecution; it is out come of ulterior motive extraneous malafide consideration and to ensure the custody of the petitioner on flimsy grounds. FIR can be lodged for alleged commission of offences only on the complaint vides District Magistrate/ Deputy Commissioner, thus came to be lodged without the jurisdiction and competence. Counsel for the petitioner sought quashment FIR not only to avoid miscarriage of justice, but also to prevent the abuse of process of law and to secure the ends of justice.
On the other side state has filed the reply and resisted the petition on the ground that the investigation of the case is at its infancy and as such the FIR cannot be quashed at this stage, if quashed, same would amount to interference with the investigation. In the said FIRs allegations against the petitioner is that while meeting the visitors in the jail, he incited and instigated them and detenues to raise slogans against Govt of J&K and Govt of India in order to carry on the present turmoil in the state, so that the sovereignty, integrity and peace of the state is disturbed. He also instigated the public at large in Kashmir valley to carry on agitation in order to achieve freedom of J&K from India as he hatched a criminal conspiracy with detenues, visitors and other persons to carry out his illegal activities, designs and plan.
The court after hearing the parties observed that a plain reading of the provision makes it abundantly clear that no prosecution can be initiated under this section except on a complaint made by District Magistrate. The expression “upon a complaint” used in the aforesaid provisions is explicit and significant. It provides that no Court shall take cognizance on any offence punishable under Chapter VI unless a complaint is made by the District Magistrate/ complainant authority of the Govt. This provision comes into play only when police file the charge-sheet not before that. Thus FIR can be lodged without the complaint. If the investigating officer comes to a conclusion that a case is made and has to present final charge-sheet before the Court, it cannot take cognizance unless complaint is made by the District Magistrate or Authority complaint. With these observations Court dismissed the petition. JNF
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