Jammu & Kashmir High Court
Mohd. Shabir vs State And Ors. on 12 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
B.A. No. 147/2017
Date of decision:12.10.2017
Mohd. Shabir Vs. State of J&K & Ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For the Petitioner/Appellant(s) : Mr. Aseem Sawhney, Advocate.
For the Respondents(s) : Mr. Amit Chopra, GA.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. Through the present bail application, the Petitioner-Mohd. Bashir, seeks bail, inter alia, on the ground that the respondents-State and Police have implicated the petitioner in a false and frivolous case in FIR No. 140/2013, Police Station, Thanamandi, Rajouri under Sections 376/341/354 B RPC. The petitioner is under arrest since 02.02.2017 and is lodged in Jail, therefore, is filing the present bail application through next friend-real brother.
2. The learned counsel for the petitioner has stated in the petition that the petitioner has been alleged to have committed rape upon prosecutrix W/o Mohd. Rayaz, R/o Village Planger, Teh Thanamandi, District Rajouri, but the fact is that there is enmity between the families of the petitioner and the complainant / prosecutrix in connection with a land dispute and a civil Suit is also pending before the learned Munsiff, Thanamandi. That on the complaint of the father of the petitioner, the brother and the petitioner about five FIRs has been registered against the complainant/prosecutrix, her husband Mohd. Rayaz and Babu Hussain father in law of the B.A. No.147/2017 Page 1 of 9 2 complainant. The information has obtained under RTI by one Maqsooda Begum sister in law of the petitioner is as follows:
1) FIR No. 105/2017 under section 458/147/323/109 at Police Station, Thanamandi lodged by father of petitioner where the accused are father in law and husband besides other relatives of the complainant/prosecutrix. The case is being tried.
2) FIR No. 98/2009 under section 435/336/323 RPC at Police Station, Thanamandi lodged by father of petitioner where the accused are father in law and husband besides other relatives of the complainant/ proxecutrix. The case was closed on 27.04.2010.
3) FIR No. 78/2011 under section 147/148/149/429/452/382 RPC at Police Station, Thanamandi lodged by petitioner where the accused are father in law and husband besides other relatives of the complainant/prosecutrix. The case is being tried.
4) FIR No. 139/2013 under section 429 RPC at Police Station, Thanamandi lodged by petitioner where the accused are father in law and husband besides other relatives of the complainant/prosecutrix. The case was closed.
5) FIR No. 100/2014 under section 307,452,323,147,109 RPC r/w 3/27 IAA at Police Station, Thanamandi lodged by brother of petitioner where the accused are the complainant/prosecutrix, father in law and husband besides other relatives of the complainant/prosecutrix. The case is under investigation.
3. That since there is grave enmity between the families of the complainant and the petitioner, therefore, the complainant and her family in order to settle score with the petitioner's family has lodged a false and flimsy complaint against the petitioner and alleged rape on her person and thus the petitioner has been put under arrest and caused grave ignonimity and harassment and agony. The same is only a malafide act of the complainant/prosecutrix which is neither substantiated by ocular, circumstantial or medical evidence, therefore the petitioner may be granted Bail. That in order to counter blast the complaint / FIRs against the family of the complainant a ploy was created and on 25.08.2013 a B.A. No.147/2017 Page 2 of 9 3 written report was submitted by the complainant/prosecutrix with the respondent no. 1 regarding her rape by the petitioner and on this an FIR No. 140/2013 Police Station, Thanamandi was registered. The petitioner is in custody in this FIR wherein the petitioner is seeking bail. That the petitioner was arrested thereafter and investigation took place wherein the Police submitted the final report and gave benefit of Section 169 Cr.P.C to the petitioner since as per the Police there was no evidence against the petitioner and it was established that such a complaint was only filed with malafide intentions by the complainant/prosecutrix. The Final Closure Report was filed on 21.04.2015. That said Final Closure Report was not accepted by the learned Magistrate, Thanamandi and Final Report was rejected and returned to the SDPO, Thanamandi vide order dated 21.09.2015 with direction to assign it to some superior officer other than the same I.O. That the DIG Rajouri Range on the asking / application of the complainant transferred the investigation from Police Station, Thanamandi to Police Station, Women Cell, Rajouri. The same finds mention in the challan / charge sheet itself.
4. That the challan was presented on 06.02.2017 before the Munsiff, Thanamandi and on the same day it was committed to the Pr. Sessions Judge, Rajouri vide order dated 06.02.2017. The trial was transferred to Addl. Sessions Judge, Rajouri and is pending before the learned Additional Sessions Judge, Rajouri at present. On 18.03.2017, the learned Trial Court framed the charge under section 376/341 RPC and the petitioner pleaded not guilty and thus the prosecution was directed to lead evidence. That in the last 5 months the prosecution has examined three witnesses including the complainant/prosecutrix, Dr. Sangeeta Parihar and Babu Hussain. The medical evidence clearly indicates that the entire complaint of sexual intercourse is false as there was no sign of recent sexual intercourse in the medical report and Statement of the Doctor. The B.A. No.147/2017 Page 3 of 9 4 other statements of the PWs too clearly demolishes the case of the prosecution and there are glaring contradictions, embellishments and the evidence does not inspire confidence since the witnesses are false and concocted just aimed to arm twist the petitioner and his family and to wreck vengeance. That there are 17 witnesses cited and main witnesses - the complainant/prosecutrix was recorded on 27.05.2017 and 28.07.2017, her father in law-Babu Hussain in May 2017 and doctor was recorded on 03.05.2017 have been recorded and clearly indicate that the entire story of prosecution is based on false hood and fabricated, therefore the petitioner may be released on bail at this stage.The petitioner moved bail application on 18.05.2017 which was rejected by the learned Trial Court on 06.07.2017.
5. The Trial Court has not appreciated the facts and law in the proper perspective and has been swayed by section 497 C of the Amendment Act Cr.P.C. While as in many such cases where section 376 RPC has been added the High Court's including this Court and Supreme Court have been kind to grant even pre arrest bail to the petitioner on the facts of the case since 497 C Cr.P.C does not ban grant of bail but only states that the accused person shall not be released on bail if the Court on perusal of the case diary or the report made under Section 173 of the code of the opinion that there are reasonable grounds for believing that the accusations against such person is prima facie true. Therefore, the accused/petitioner has not proved that he is innocent. It is the report/prosecution that has to indicate that prima facie the accusation is true, which in the present case cannot be true and the moment the element of reasonable doubt enters the case file/ story of the prosecution the embargo of 497 C Cr.P.C is lifted, therefore, in this case the Hon'ble Court may grant the concession of the bail to the applicant/petitioner.
B.A. No.147/2017 Page 4 of 9 5That the bail not jail is the cardinal principle of law and everyone is to be presumed innocent till proved guilty.
6. With the afore mentioned submissions, learned counsel for the petitioner has prayed that the present bail application of the petitioner be allowed by admitting him to Bail.
7. On the other hand, learned Government Advocate has opposed the bail application by filing status report stating that on 25.08.2013, complainant namely Mst. Raquia Begum, W/o Raiz Ahmed, R/o Planger, Tehsil Thanamandi lodged a written report with the Police Station, Thanamandi against Mohd. Bashir, S/o Makhna, to the effect that on the day of occurrence complainant was going to take lunch of her parent in-laws, alleged person with the criminal intention already hidden on her way and forcefully took her burst and committed rape with her without her consent. On this report case, FIR No. 140/2013, U/s 376 RPC got registered at Police Station, Thanamandi and investigation was commenced. During the course of investigation, I.O. visited the spot, prepared site plan, recorded the statements of witnesses U/s 161 Cr.P.C. I.O. had also produced the prosecutrix before Judicial Magistrate for recording her statement U/s 164-A Cr.P.C. Medical got conducted from Hospital and also obtain Medical Report. The investigation of the case further transferred by the order of learned Court and entrusted to SHO, Women Police Station, Rajouri. I.O. of Women Police Station again produced the prosecutrix before Judicial Magistrate for recording her statement U/s 164-A Cr.P.C. As per Medical Report / evidence collected by I.O. i.e. statement U/s 164 Cr.P.C. On the basis of Medical Report / statements recorded u/s 164-A Cr.P.C. Offences u/s 354-B/341 RPC has been inserted by the I.O. and offences u/s 376/354-B/341 RPC have been proved against Mohd. Bashir, S/o Makhna and challan was produced in the Court of Law against Mohd. Bashir, S/o Mahna.
B.A. No.147/2017 Page 5 of 9 68. Heard counsel for parties and gone through the law on the subject.
9. A charge sheet in FIR 140/2013, Police Station, Thanamandi, Rajouri under Sections 376/341/354 B RPC was presented before Sessions Judge Rajouri, which was transferred to Additional Sessions Judge, Rajouri. Charge has been framed against accused on 18.3.2017; even statement of prosecutrix, her father and Doctor have been recorded. The occurrence is of 25.8.2013; as per prosecution, the fact of case is that prosecutrix lodged written report before P/S Thanamandi stating therein that at 8.30 AM on same day , she was going to give meal to her father in law; accused who sitting in bushes came out suddenly and caught hold her from breast and torn her clothes; accused committed rape on her.
10. Accordingly, FIR No.140/2013 with Police Station, Thanamandi, Rajouri under Sections 376/341/354 B RPC was registered; investigation was started and medical examination was conducted; during medical examination which was conducted within 10 hrs of occurrence, no sign of recent intercourse was found and prosecutrix was found habitual of intercourse by Doctor; the statements of two witnesses, namely, Babu Hussain and Mir Mohammad were recorded u/s 164-A Cr.P.C and I/O found that various litigations with regard to land are pending between parties, so it was closed and final report was submitted to court; JMIC Thanamandi again recorded the statement of prosecutrix, wherein she stated that police has recorded wrong statement in connivance with accused and categorically stated that accused committed rape on her on relevant day and date; accordingly Court rejected the closure and directed SDPO Thanamandi Rajouri for further Investigation. Accordingly, investigation was commenced, which was taken by P/S Women Cell, who after completing the investigation has produced the challan.
B.A. No.147/2017 Page 6 of 9 711. Court below has framed charges against accused on 18.03.2017 and has also recorded the statements of prosecutrix and other witnesses. A bail application was filed, but court below has rejected the bail of petitioner on 06.07.2017 on the ground that the accused has not been able to show that bar under proviso to Section 497-C(1) Cr.P.C. is not attracted in his case.
12. I have given my thoughtful consideration to whole aspects of the matter.
13. The relevant factors and parameters that needed to be taken into consideration while dealing with bail during trial are (a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (c) The possibility of the applicant to flee from justice. The Court should also consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. These are some of relevant consideration but not exclusive, every case has its different facts and circumstances. Further, it is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. A great ignominy, humiliation and disgrace are attached to arrest and long incarceration. It leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. There is much distinction between arrest at a pre-conviction stage or post-conviction stage.
14. Coming to facts of present case, the complainant is major and it is fact that various disputes are pending between families of prosecutrix and accused, the detail of which has been given in memo of application; it is a B.A. No.147/2017 Page 7 of 9 8 fact that previously a closure report was filed by I/O as offence of 376 was not found proved; the medical report of prosecutrix is not supporting the fact of sexual intercourse which has been conducted within 10 hrs of occurrence; even no injuries has been found on body of victim/prosecutrix by Doctor as per certificate.
15. Section 497-C of Cr.P.C., says that court should not grant bail in cases of offence u/s 376 RPC unless opportunity of hearing is given to Public Prosecutor /State and if after going through the report made under section 173 Cr.P.C., court comes to conclusion that there is reasonable grounds to believe that accusation is prima facie true. A bare perusal of this section, it is evident that this restriction may be applicable at pre-trial stage; because after the commencement of trial the evidence /documents collected during investigation would be relevant for contradiction or for corroboration purpose only. The word reasonable grounds to believe means that there should be some evidence less than a balance of probabilities when the totality of the circumstances is considered. As already held the fact of rape is not supported with medical evidence; and there was also animosity between them due to various litigations pending. So at this stage, it can be inferred that there is no reasonable ground to believe that there is prima facie material against the accused. Further, statement of prosecutrix and other material witnesses have been recorded during trial, so tampering with material witnesses does not arise. Court has to presume a person innocent till the trial is complete. A bail hearing is not a hearing on the merits of the matter itself and does not go into the issue of guilt. Therefore, granting of bail is the norm except in cases where specific grounds are made out based on which the bail can be refused. If there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life then the person shall not be granted bail.
B.A. No.147/2017 Page 8 of 9 916. In present case, punishment for offence, for which, accused has been charge sheeted is not punishable with death or imprisonment for life, so rigor of section 497 Cr.P.C. is not applicable. A person cannot be kept as a matter of punishment before trial except under special circumstances. The accused is already in custody since 02.02.2017. No previous criminal antecedent has been brought before court against petitioner.
17. Having regard to the aforesaid facts and the totality of the circumstances, I feel that a case for grant of bail has been made out. Petitioner is, thus, admitted to bail subject to furnishing of surety and personal bond in the amount of Rs.50,000/- to the satisfaction of court below on the following terms and conditions:-
a) That he shall actively participate in trial.
b) That he shall not leave territorial jurisdiction without taking prior permission of trial court and shall refrain from intimidating prosecution witnesses.
18. Expression of any opinion, hereinbefore, may not be treated as an expression on the merit of the case. This petition is disposed of.
(Sanjay Kumar Gupta) Judge Jammu, 12.10.2017 Pawan B.A. No.147/2017 Page 9 of 9