Jammu & Kashmir High Court
Kulbir Singh Age 29 Years S/O Mohan Singh vs Ut Of J&K Through ... on 31 March, 2023
Author: Mohan Lal
Bench: Mohan Lal
1
Sr.No. 94
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 163/2022
CrlM No. 757/2022
Reserved on : 14.03.2023
Pronounced on: 31.03.2023
Kulbir Singh age 29 years S/o Mohan Singh,
R/O Maroog Tehsil and District Ramban. ....Petitioner(s)
Through:-M/s Ankur Sharma & Khalid Mustafa
Bhatti, Advocates.
Versus
1. UT of J&K through Commissioner/Secretary Home Department,
Civil Secretariat Jammu,
2. Senior Superintendent of Police Ramban,
3. SHO Police Station Ramban,
4. Shimla (Simla) Devi D/o Sukh Dharam Singh,
R/o Lura Neel Tehsil Ramsoo District Ramban,
5. Ranbhir Singh S/o Jaswant Singh, R/o Seen Thakran,
Tehsil and District Udhampur. ....Respondent(s)
Through:- Mr. EishaanDadhichi, GA for R-1 to 3 Mr. Swarn Kishore Singh, Adv for R-4 CORAM: HON‟BLE MR. JUSTICE MOHAN LAL , JUDGE O R DER 31-03-2023
1. Petitioner/accused has preferred instant bail application u/s 438 of the Code of Criminal Procedure (hereinafter referred as the „Code‟) for grant of bail in his favour in anticipation of his arrest in case FIR No. 142 of 2022 registered with Police Station Ramban for commission of offences punishable u/ss 420, 376, 109 of IPC on the grounds, that on 05.10.2021 respondent No.4 filed a false and frivolous complaint against the petitioner before respondent No.2 alleging therein that around 2 ½ years back petitioner called her over the telephone and thereafter both petitioner and respondent No.4 kept calling each other and these formal conversations turned into friendship, one day petitioner told respondent No.4 that she should take divorce from her husband and he will keep her happy as he is an employee, respondent No.4 came under his influence and petitioner also had intercourse with her and thereafter she took the divorce but the petitioner is not marrying her; that police after receipt of the application called the petitioner who was made to succumb to the illegal pressure of respondent No.4 although nothing of the sort has ever happened as alleged in the application, police and the relatives of respondent No.4 called 2 Bail App No. 163 of 2022 petitioner in the court complex at Ramban and was made to sign a marriage agreement which he signed believing that respondent No.4 has been divorced by her previous husband lawfully, the said marriage agreement was prepared and signed on 13.10.2021 at Court Complex Ramban, however, no ceremony of marriage has been held as per the Hindu law except the signing of the marriage agreement mentioned above; that since then the petitioner has been requesting respondent No.4 to give him the copy of decree of divorce so that the ceremonies as per the Hindu Law regarding the marriage can be performed but she did not provide the same and instead on 18.12.2021 she gave the photocopy of mutual divorce deed/agreement dated 08.09.2021 which was attested by the public notary Udhampur. It is averred, that after the execution of said document dated 08.09.2021 respondent No.4 is forcing the petitioner to cohabit and stay with her as husband and wife but petitioner feels cheated and is avoiding her company as she is the legally wedded wife of respondent No.5, soon after the receipt of photo copy of document dated 08.09.2021 petitioner requested respondent No.4 that she has not been lawfully divorced and as such she should not run after the petitioner and harass him on one pretext or the other, but thereafter respondent No.4 started pressurizing the petitioner through her family members and friends and the petitioner has been attacked and beaten by her known persons whom she calls by mobile phone on many occasions and now she has started demanding Rs.20.00 lacs; that respondent No.4 has made the life of the petitioner miserable by blackmailing, illegal and uncalled for demands and physical/mental torture at the hands of her acquaintances whom petitioner do not know, in such circumstances the petitioner filed petition under section 11 of Hindu Marriage Act on 09.02.2022 in the court of learned District Judge Ramban for grant of a decree of divorce on the ground that she has willfully and illegally manufactured document dated 08.09.2021 in order to cheat the petitioner and pressurize him to marry her as she is greedy blackmailer and the said court has issued notice to respondent No.4 and the case is awaited for her response; respondent No.4 on receipt of the summons of the cases against her, instead of contesting, filed an application in the court of learned CJM Ramban for a direction to SHO Police Station Ramban to investigate the matter in terms of section 156(3) CrPC, the concerned SHO called the petitioner in Police Station on number of times and after enquiry released him as he is aware of all the illegalities committed by respondent No.4 as a result of which the aforesaid FIR came to 3 Bail App No. 163 of 2022 be registered; that the petitioner is serving in Indian Army and in case he is arrested, his whole service carrier will be spoiled and apart from this the petitioner cannot run away from any of the investigation being conducted by the respondents in the FIR and is ready to abide by all the terms and conditions imposed by the Hon‟ble Court while granting interim bail.
2. Respondents through respondent No.3 SHO Police Station Ramban have opposed the grant of anticipatory bail by filing objections and contending therein, that on 16.04.2022 an application was received through Dak duly endorsed by Hon‟ble Court of CJM Ramban seeking direction to SHO P/S Ramban under section 156(3) of CrPC for registration of FIR against non- applicant Kulbir Singh under Sections 420, 376, 109 of IPC wherein it is stated, that the applicant/victim firstly solemnized marriage with one Ranbir Singh S/O Jaswant Singh R/o Udhampur about nine (9) years ago and out of the said marriage two (2) children were born, during the subsistence of first marriage, the non-applicant/accused used to call the applicant on mobile phone and with the passage of time, applicant/victim fell in love with him and on the promise of non-applicant/accused to marry, the first marriage was dissolved by way of mutual divorce; that the applicant/victim obtained divorce from the first husband, as non-applicant/accused had developed illicit relation with applicant/victim and he also promised the applicant/victim to marry after divorce, and she started living with non-applicant/accused at Ramban and Batote on rental accommodation and during this period the said person raped/sexual intercourse with applicant/victim on the promise of marriage and as the applicant/victim insisted for marriage as she was staying with non- applicant/accused but he refused to marry and threatened of dire consequences, but the police of Police Station Ramban did not register any FIR against the said person. It is contended, that on refusal on part of the police, applicant/victim on 05.10.2021 filed another application to SSP Ramban who directed SHO P/S Ramban to register the FIR against the above said person, whereby, the brother of accused namely, Yudhvir Singh and his father Mohan Singh also convinced the applicant/victim for marriage and promised to marry, whereafter, non-applicant/accused also entered into a marriage agreement with applicant/victim duly attested by Notary Public Ramban and in the said agreement the non-applicant/accused promised and also agreed to perform the marriage ceremony as per the Hindu rites and customs, whereafter, applicant/victim again started living with him on rental 4 Bail App No. 163 of 2022 accommodation at Batote, however, accused was delaying to perform the marriage ceremony on one pretext or the other and during this period the said accused had sexual intercourse with applicant/victim and finally refused to perform the condition of marriage agreement, and in the month of November 2011 openly declared/refused to marry with applicant/victim and even threatened the applicant to redress the grievance to the law enforcing agencies and also subjected severe beating. It is further contended, that during the course of investigation, on 17.04.2022, I.O alongwith police party comprising of lady police officer alongwith the complainant (victim lady) proceeded towards DH Ramban and medical examination of the victim lady was conducted by Dr. Dinesh Gynecologist, slides of vaginal smear of the victim lady were collected from the Hospital on the next day i.e. 18.04.2022 and sent to FSL Jammu for examination on 20.04.2022, in between on 18.04.2022 I.O visited the first place of occurrence i.e. at Shivnagar Ramban prepared the site plan as per the description of the victim and recorded the statement of witnesses present at the house at the time of offence, on 25.04.2022, I.O recorded the statement of victim lady‟s mother and her paternal uncle,. on 28.04.2022 I.O alongwith Police party and the victim lady proceeded towards Batote to inspect the place where victim lady lived with accused Kulbir Singh on rent and also to record the statement of owner/witnesses of that house under section 161 CrPC and prepared site plan of the scene of crime at Batote as per the description of the victim lady Simla Devi, on 18.04.2022, I.O wrote docket to Hon‟ble Court Ramban for recording the statement of the victim lady Simla Devi as she was willing to record her statement before Judicial Magistrate, the statement u/s 164 CrPC was recorded before the learned JMIC Ramban in which she confirmed the offence of rape and cheating committed on her by the accused Kulbir Singh, so the offence u/s 376, 420 IPC have only been made out against the accused Kulbir Singh, during further course of investigation I.O obtained the FSL report which is as „No Spermatozoa were detected on the Exhibit No. K-397/2022‟, accused person is absconded, arrest of the accused still could not be made.
3. Respondent No.4 has also opposed the bail on the grounds, that petitioner has not approached the Court with clean hands and has suppressed vital and material facts from this Court just to mislead the court; the application of the petitioner is baseless, devoid of merit, groundless, false, vague and concocted one liable to be rejected. It is contended, that the petitioner is not entitled for 5 Bail App No. 163 of 2022 the concession of bail in view of the nature and gravity of the crime committed by him upon the victim/prosecutrix, application of petitioner is not maintainable as till date the FSL report of the material evidence i.e. clothes of the victim etc. has not been submitted by the prosecution, and in case the petitioner is released on bail, he may either cause damage to the life and limb of the victim/prosecutrix, or will manage to tamper the prosecution evidence, as such, application is liable to be rejected.
4. M/s Ankur Sharma & Khalid Mustafa Bhatti learned counsel while making a strong case for grant of anticipatory bail in favour of petitioner/accused have vehemently canvassed arguments, that prosecutrix on 05.10.2021 filed a complaint against petitioner/accused before respondent No.2 SSP Ramban alleging therein that around 2 ½ years back petitioner/accused called her on telephone and these formal conversations between her and petitioner/accused turned into friendship and thereafter petitioner/accused had intercourse with her on the assurance that she should obtain divorce from her husband, but formal FIR No. 142/2022 for commission of offences u/ss 420,376,109 IPC was registered at Police Station Ramban on 16.04.2022 after a delay of more than 6 months which has remained un-explained and is fatal for prosecution. It is argued, that in the said FIR there is no allegation of false promise of marriage against petitioner/accused, but the allegation of rape against the petitioner is on account of fact that settlement of marriage between petitioner and complainant/victim could not mature. It is vehemently argued, that the FIR should be lodged with promptitude to avoid any chance of concoction or colored version, moreso, the petitioner is serving in Indian Army and cannot be expected to abscond and flee from justice and influence the prosecutrix in not deposing before police or in the court of law, petitioner has no criminal history and taking into consideration the accusations and there being no possibility of fleeing of petitioner from justice and delay of more than 6 months in lodging FIR, petitioner is entitled to grant of bail. To support their arguments, Ld. Counsel have relied upon the judgment of Hon‟ble Supreme Court reported in, AIR 2019 SC 4010 (Pramod Suryabhan Pawar versus State of Maharashtra).
5. Mr. Eishaan Dadhichi GA for R-1 to 3 with Mr. Swarn Kishore Singh, learned counsel for R-4, have opposed the bail on the grounds, that after the proposal of marriage of the petitioner with the respondent No.4 was accepted, petitioner took it as his liberty to sexually abuse respondent No.4, respondent 6 Bail App No. 163 of 2022 No.4 had firstly solemnized marriage with R-5 Ranbir Singh about nine (9) years ago and out of the said marriage two children have been born, during the subsistence of first marriage petitioner/accused used to call her on mobile phone and with the passage of time respondent No.4 fell in love with him, and on the promise of marriage made by petitioner/accused, the first marriage was dissolved by way of mutual divorce. It is argued, that respondent No.4 obtained divorce from the first husband, as petitioner/accused had developed illicit relations with her and had also promised to marry her after the divorce, and she started living with petitioner/accused at Ramban and Batote on rental accommodation, and during this period the said person raped/sexual intercoursed with respondent No.4, but petitioner/accused refused to marry and threatened her of dire consequences and due to the aforesaid act of the petitioner, respondent No.4 remained in shock for few months, the gruesome acts of commission and omission made respondent No.4 just a toy in the hands of the petitioner, prayer has been made for rejection of bail.
6. I have heard Ld. Counsel for petitioner/accused and Ld. GA for respondents. I have also gone through the relevant law on the subject matter meticulously. Before I proceed further, I would like to discuss the law relating to the grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a Constitution Bench judgment of Hon‟ble Supreme Court in the case of Gurbaksh Singh Sibbia and others v. State of Punjab, [(1980) 2 SCC 565], which emphasized that the provision of anticipatory bail enshrined in Section 438 of the Code is conceptualized under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under Section 438 is therefore, intended to confer conditional immunity from the „touch‟ or confinement contemplated by Section 46 of the Code. In a Division Bench judgment of Siddharam Satlingappa Mhetre v. State of Maharashtra and ors. [(2011) 1 SCC 694], Hon‟ble Supreme Court has laid down an exhaustive commentary of Section 438 of the Code covering, in an erudite fashion, almost all the aspects which in the process relies upon the aforesaid Constitution Bench judgment in Gurbaksh Singh‟s 7 Bail App No. 163 of 2022 case, highlighting the conflicting interests which are to be balanced while taking a decision as to whether bail is to be granted or not. It is trite law, that the plentitude of Section 438 of the Code must be given its full play. There is no requirement that the accused must make out a „special case‟ for exercise of power to grant anticipatory bail. This virtually reduces the salutary power conferred by Section 438 of the Code to a dead letter. A person seeking anticipatory bail is still a free man, entitled to the presumption of innocence.
In "Data Ram Singh vs. State of Uttar Pradesh and ors., [2018 (3) SCC 22], the Hon‟ble Supreme Court has encapsulated the concept of bail as under:-
1. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of 23:32:05 IST Reason: bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
3. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re- Inhuman Conditions in 1382 Prisons.
4. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India 2 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, is that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
In P. Chidambaram vs. Directorate of Enforcement [Criminal Appeal No. 1831/2019 (arising out of SLP (Criminal) No. 10496/2019] Hon‟ble 8 Bail App No. 163 of 2022 Supreme Court further encapsulated basic jurisprudence regarding concept of bail as under:-
21. Thus from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case.
Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial.
7. Ratios of the judgments (Supra) of "Data Ram Singh" & "P. Chidambaram" cases lay down an invariable principle of law, that the basic jurisprudence relating to bail remains the same, inasmuch as, the "grant of bail is the rule" and "refusal is an exception". In the case in hand, on perusal of photocopy of FIR (Annexure-I) it is depicted, that on 15-10-2021 respondent No.4 (victim/prosecutrix) had filed an application to SSP Ramban for registration of FIR, but on the intervention of Court of CJM Ramba, on 16-04- 2022 FIR was registered against petitioner/accused for commission of rape upon the prosecutrix after a delay of more than 6 months (191 days). In Krishan Vs. State [Bail Application No. 3316/2021 decided by High Court of Delhi on 15.11.2021] anticipatory bail was granted to the petitioner/accused in case indicted for commission of offences under Section 376 IPC for the reasons that there was a unexplained delay 21 days in registration of the FIR.
9 Bail App No. 163 of 2022In AIR 2019 SC 4010 (Pramod Suryabhan Pawar v State of Maharashtra) relied by Ld. Counsel for petitioner/accused, Hon‟ble Supreme Court quashed FIR registered against the accused for commission of offences u/ss 375,376,417,504,506 IPC by observing that there were allegations in FIR that accused on promise of marriage established sexual relations with informant/victim prosecutrix, and there were no allegations in FIR when accused promised to marry informant.
8. Taking into account the ratio decidendi of the case laws (Supra) law is well settled, that when the victim is major/mature, the unexplained delay in lodging the FIR is seriously fatal to the prosecution which entitles the accused the grant of even anticipatory bail. Taking into consideration the facts and the allegations against the petitioner/accused, it can‟t be understood as to what stopped the victim/respondent No. 4 from lodging the complaint of rape against the petitioner on the next day of occurrence or immediately thereafter without any delay or why respondent No.4 remained silent for about 191 days in lodging the report of rape against her.
9. Having regard to the facts of the case in hand, I feel that no purpose would be served in compelling the petitioner/accused to go behind the bars as under- trial by refusing the anticipatory bail in respect of the alleged incident of rape against him, which occurrence was reported by the victim/prosecutrix to the police after an unexplained delay of 191 days (more than 6 months). The investigation is in progress, and there is no substantial allegation supported by proof that petitioner who is an army personnel may abscond and flee from the course of justice and try to influence the prosecution witnesses. In the aforesaid circumstances, even when there is a serious charge leveled against the petitioner, that by itself should not be a reason to deny the anticipatory bail when the matter is examined keeping in view the other factors stated above. Looking into the fact that the FIR is delayed by 191 days without any justifiable reason, taking into consideration the gravity of accusations and there being no possibility of the petitioner fleeing from justice, without expressing any opinion upon the merits of the case, the petitioner is entitled to be released on anticipatory bail at this stage. It is, therefore, ordered that in the event of arrest of the petitioner in the case in hand, he shall be released on anticipatory bail on his furnishing personal bond in the sum of Rs. 50,000/- with two sureties of the like amounts before the I/O with the following conditions:-
10 Bail App No. 163 of 2022(i) that the petitioner/accused shall make himself available for the purpose of investigation as and when required by the Investigating Officer;
(ii) that the petitioner/accused shall not directly or indirectly make an inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her/them from disclosing such facts to the Court or to any police officer.
10.Disposed of accordingly.
Jammu: (Mohan Lal)
31.03.2023 Judge
Vijay
Whether the order is speaking ? Yes/No
Whether the order is reportable ? Yes/No