Jammu & Kashmir High Court
Sqn. Ldr Ginni Choudhary vs Wg Cdr M. Kirpal And Another on 23 August, 2021
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 13.08.2021
Pronounced on: 23 .08.2021
Bail App No. 127/2021
Sqn. Ldr Ginni Choudhary .....Appellant(s)/Petitioner(s)
Through: Mr. A. K. Sawhney, Advocate
Vs
Wg Cdr M. Kirpal and another ..... Respondent(s)
Through: Mr. Ankur Sharma, Advocate
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The present petition has been filed by the petitioner under section 439(2) read with section 482 Cr.P.C. for cancellation of the bail granted to the respondent No. 1 by the learned Principal Sessions Judge, Jammu vide order dated 18.03.2021, primarily on the ground that the bail has been granted in anticipation of arrest to respondent No. 1 for commission of offence under section 354-A IPC, which is a bailable offence and pre-arrest bail application does not lie for the said offence. It is further stated that the learned Sessions Judge has not applied its mind and passed the order mechanically and arbitrarily and further that the respondent No. 1 has been emboldened with such impugned order and has started inducing, 2 Bail No. 127/2021 tampering, winning over and influencing the witnesses of the petitioner.
2. Response stands filed by the respondent No. 1 in which it is stated that the respondent No. 1 has also challenged the FIR bearing No. 0036/2021 dated 11.02.2021 before this Court and this Court had stayed the production of the challan. It is further stated that the respondent No. 1 on 13.02.2021 had moved an application seeking bail in anticipation of arrest before learned Principal Sessions Judge, Jammu and at the time of filing of the said application, the respondent No. 1 was having no knowledge about the offences under which he had been booked by the police and he was granted an interim anticipatory bail with certain terms and conditions in terms of order dated 13.02.2021 passed by the learned trial court. On 26.02.2021, when the bail application of respondent No. 1 was taken up, it was noted that after recording statement of the petitioner under section 164 Cr.P.C, offence section 354 IPC has also been included in the said FIR. It is also stated that interim anticipatory bail granted to the petitioner on 13.02.2021 was made absolute by learned Principal Sessions Judge, Jammu vide order 18.03.2021 and further the docket forwarded to the SHO, Police Station, Satwari by the learned Principal Sessions Judge, Jammu with regard to the order dated 18.03.2021clearly reveals that respondent No. 1 has been granted bail under sections 354 and 354-A IPC. Inadvertently, section 354 IPC was not mentioned in the order dated 18.03.2021. It 3 Bail No. 127/2021 is also denied by respondent No. 1 that he at any point of time threatened the witnesses of the petitioner.
3. Mr. A. K. Sawhney, learned counsel for the petitioner has vehemently argued that the respondent No. 1 was granted bail in anticipation of arrest in an FIR that was registered for bailable offence and the application for grant of anticipatory bail was not maintainable. So far as other grounds are concerned, Mr. Sawhney submits that the respondent No. 1 can raise these grounds before the court of the learned Principal Sessions Judge, Jammu.
4. Mr. Ankur Sharma, learned counsel for respondent No. 1 has vehemently argued that the respondent No. 1 was granted bail for commission of offence under section 354 IPC as after recording of the statement of the petitioner, the said offence was also added so the contention of the petitioner that the respondent No. 1 has been granted anticipatory bail in a bailable offence is misconceived. He further submitted that the respondent No. 1 has never threatened any of the witness of the petitioner.
5. Heard and perused the record.
6. From the record, it is evident that respondent No. 1 had filed the application under section 438 CrPC for grant of bail in anticipation of arrest and in the said application, the respondent No. 1 had simply stated that the respondent No. 1 has been falsely implicated in some non-bailable offences by Police. More so, he had not annexed any 4 Bail No. 127/2021 copy of the FIR along with the said application and taking into consideration the apprehension of respondent No. 1, the learned Principal Sessions Judge, Jammu granted the interim bail in anticipation of arrest on 13.02.2021 and the matter was fixed for 22.02.2021 and on 22.02.2021, the Public Prosecutor sought time to file the response to the said application and the matter was fixed for 26.02.2021 and on 26.02.2021, the Public Prosecutor filed the response and it was found that initially FIR bearing No. 36/2021 for offence under section 354-A IPC was registered and subsequently after recording the statement of the petitioner under section 164 Cr.P.C, offence under section 354 IPC was also added and the learned Principal Sessions Judge, Jammu vide order dated 26.02.2021 directed the Public Prosecutor to file objections and the matter was posted for 04.03.2021 and till then it was ordered that no coercive action shall be taken against the respondent No. 1 and further the respondent No. 1 was directed to cooperate with the investigation and appear before the Investigating Officer as and when required and thereafter, learned trial court vide order dated 18.03.2021 after perusing the Case Diary and taking into consideration the statement of the Investigating Officer that the custodial interrogation of respondent No. 1 was not required, made the interim bail absolute on the same terms and conditions.
7. A perusal of the order reveals that section 354 IPC has not been mentioned in the said order. Be that as it may, the fact remains that 5 Bail No. 127/2021 the learned trial court vide order dated 26.02.2021 had taken note of the fact that offence under section 354 IPC has been added pursuant to the statement of the petitioner.
8. In view of what has been discussed above, it cannot be said that the respondent No. 1 has been granted bail in anticipation of arrest in bailable offence. Learned trial court taking into consideration of allegation with regard to sexual harassment and also taking into consideration that the presentation of the challan was stayed by this Court and further enquiry against respondent No. 1 is also underway by Internal Complaint Committee with regard to allegations of sexual harassment and further respondent No. 1 has cooperated with the Investigating Agency, the interim bail granted to the respondent No. 1 was made absolute. No fault can be found with the order impugned. So far as the contention of the petitioner that the respondent No. 1 has been advancing threat to the witnesses of the petitioner, the petitioner has every right to approach to the court of learned Principal Sessions Judge, Jammu with regard to her grievance, if so advised.
9. In view of the above, there is no merit in this petition, as such, the same is dismissed.
(Rajnesh Oswal) Judge Jammu 23.08.2021 Rakesh 6 Bail No. 127/2021 Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No