Trial Court Can Consider Cancellation Of Bail Granted By High Court On Ground Of Witness Tampering: J&K&L High Court

The Court observed that the Trial Court is free to take a view on the aspect of contravention of bail conditions, including tampering with prosecution evidence, on appreciation of the material placed before it.

A Bench of Justice M.A. Chowdhary, while disposing of the petition, observed,

"It would be better if this aspect of tampering with the Prosecution evidence, though the learned Trial Court has recorded in its Order dated 24th of September, 2024 that the Respondent No.2 had tried to tamper with the Prosecution evidence, is considered by the Court below, regardless of the fact that the bail was granted by this Court earlier."

The Court further observed,

"The Trial Court is free to take a view on the said aspect of the matter, on appreciation of contravention of any of the conditions imposed for grant of bail and also having regard to the fact that the prosecutrix and other witnesses are not threatened by the Respondent No.2, as an accused."

These observations came while hearing a petition filed by the prosecutrix seeking cancellation of bail granted to the accused by the High Court in connection with FIR for the commission of an offence punishable under Section 376 of the Indian Penal Code.

The petitioner alleged that accused was involved in the commission of a serious offence of rape against her person and was granted bail by the High Court. She asserted that accused had violated the conditions of bail by threatening her and that, being a neighbour, she was being subjected to continuous harassment.

The petitioner had earlier moved an application before the Trial Court seeking rejection of bail, which came to be rejected on the ground that since the bail had been granted by the High Court, the Trial Court could not consider the plea of cancellation.

It was submitted that the APP, in his objections and submissions before the Trial Court, had acknowledged that the accused was indulging in illegal activities which amounted to tampering with prosecution evidence, yet the Trial Court had shown its inability to consider the rejection of bail granted by the High Court.

The Court examined the rival contentions and observed that bail is a concession to an accused during trial and is subject to certain conditions. The Court observed,

"The accused, while on bail, has to maintain a conduct whereby the Prosecution witnesses are not threatened and Prosecution evidence is not tampered, so as to ensure fair trial in the case."

The Court noted that the Trial Court had recorded in its order that the accused had tried to tamper with the prosecution evidence. The Court observed that this aspect ought to be considered by the Court below, regardless of the fact that the bail was granted by the High Court earlier.

The Court held that the Trial Court is free to take a view on the aspect of contravention of bail conditions on appreciation of the material, and that the petitioner should be at liberty to move the Trial Court with an application for cancellation of bail.

The High Court thus disposed of the petition by relegating the matter to the Trial Court. The Court directed that the petitioner shall be at liberty to move the Trial Court with an application for cancellation of bail granted in favour of respondent No. 2, and the Trial Court shall be at liberty to consider the matter on its own merits, after seeking objections from the other side and hearing both parties, regardless of the fact that the bail was granted by the High Court.

The Court directed the Registry to forward a copy of the order to the Trial Court for information and compliance.

Case Title: Zahoora Akhter v. Union Territory of J&K and Another

Citation: 2026 LiveLaw (JKL) 326

Appearances

Petitioner: Ms Aasifa Padroo, Advocate; Ms Tabinda Yousuf, Advocate

Respondent No. 1: Ms Nadiya Abdullah, Assisting Counsel vice Mr Faheem Nisar Shah, Government Advocate

Respondent No. 2: Mr M. A. Peerzada, Advocate

Click here to read/download Order