Covid-19 No Substantial Change For Bail: HC

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Srinagar: The High Court on Tuesday rejected bail application of accused in a murder case, observing that spread of Covid-19 cannot be deemed to be a “substantial change in the fact situation.”

The accused who had sought bail were facing trial in a case— FIR No. 135/2012, registered against them by Police Station, Saddar, in connection with murder of one person— Ghulam Mohammad Shah of Budshah Nagar.

The accused, facing charges under Sections 302, 307, 34, 102-B, 326, 324 and 506 of the erstwhile Ranbir Penal Code (RPC), had sought the bail on account of the spread of the Covid-19 in central jail.

“On consideration of the facts of the case and the law governing the subject of grant of bail, I am of the view that the successive or subsequent bail application on the same very facts/ grounds on which the earlier one was rejected by the Court of competent jurisdiction cannot be entertained, unless it is shown that there is a substantial change in the fact situation or in the law,” a bench of Justice Ali Mohammad Magrey said

“Change in fact situation would never mean any new or additional ground which was earlier available to the accused, but that was not taken on the earlier occasion,” the court said.

Referring to the Supreme Court judgment— ‘State of Maharashtra v. Captain Buddihikota Subharao—the court said that the top court observed that “when we speak of change, we mean a substantial one, which has a direct impact on the earlier decision and not merely a cosmetic change which are of little or of no consequence.”

“In the case on hand, there is no change of circumstance, whereas, it is a case whereupon consideration of the material on record and hearing the submissions of the counsel for parties, the Court of competent jurisdiction consciously rejected the prayer for grant of bail of the applicants/ accused on merits”.

“This spread of COVID-19 cannot be deemed to be a substantial change in the ‘fact situation’, moreso, when the authorities in Jammu and Kashmir have already taken considerable measures for the protection of health and welfare of the prisoners/ inmates in order to restrict the transmission of COVID-19 in different jails including the Central Jail, Srinagar,” the court said

The court said that it was settled principle of law that grant or refusal of bail has to be made having regard to the nature of the crime, the circumstances under which it was considered, the background of the accused, the possibility of his/ her jumping bail, the impact that his/ her release may make on the Prosecution witness(es), its impact on the Society and possibilities of retribution.

“The analogy for entertaining a subsequent or second application for bail, when it was earlier rejected, the consideration would be the same,” the court said.

While rejecting their bail plea, the court left it open for the accused to approach the ‘High Powered

Committee’, as constituted by the Government in compliance of the directions passed by the apex Court for seeking their release on parole or interim bail.

The application, if made, shall be considered and decided by the said Committee in accordance with the directions passed by the Supreme Court “expeditiously”, the court added.  (GNS)

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