Jammu & Kashmir High Court
Rajesh Kumar Abrol vs Sho Incharge Police Station Janipur ... on 22 January, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Case: B.A. No.09/2018 & MP No.01/2018
Date of order:22.01.2018
Rajesh Kumar Abrol Vs. SHO Incharge Police Station Janipur Jammu
& anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Aseem Sawhney, Advocate.
For Respondent (s) :
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Petitioner has filed the present bail application in FIR No.06/2018 registered by Police Station Janipur, under Section 376/420 RPC, stating that the petitioner is victim of the circumstances, both ill fated and mala fidely, firstly created by the petitioner's own wife and now at the instance, instigation, conspiracy and provocation & ill designs by the complainant herein who has filed inordinate delayed false and frivolous complaint against the petitioner alleging rape and cheating while as a bare reading of the same reveals that the same is neither covered under the definition of rape nor cheating, but the respondents in sheer haste registered FIR No.0006 on 12.01.2018 without conducting a preliminary inquiry as mandated under magna carta- Lalita Kumari's judgment delivered by the Constitution Bench of the Apex Court wherein it has been held that where there is a delay in reporting the matter, a preliminary inquiry should be first conducted to examine the matter as to whether any offence has actually occurred or not. It has been stated that the petitioner's marital life and health have been suffering from last several years as the petitioner is a Cancer patient and undergone 12 cycles of Chemotherapy. Petitioner was married to one Smt. 561-A Cr.P.C. No.31/2018 Page 1 of 4 Surbhi with whom the relationship could not work out and said woman deserted the petitioner merely after one month. Eventually, the said matter was compromised out of the Court and a mutual divorce petition was filed and divorce granted in April 2006. Thereafter, petitioner got married to Nitu Bala on 14th July, 2009 and they lived together for about 4-5 months and relations turned sour and she also filed various complaints in the State High Court. Petitioner and his wife lived separately from December, 2009 till January 2017. During these seven years the petitioner was blessed with a girl child in April, 2010.
2. It is stated in the petition that in the year 2013, the petitioner was detected with Lymphoma Cancer when the petitioner was alone and deserted by the wife. The petitioner could not eat outside food and had to be given home cooked food and had to take follow up medicines and treatment. During this period the petitioner was taken care of by his sister or the servants. It is also stated that during this period sister of the petitioner hired the complainant as a house maid, nursing care maid and caretaker for nursing, food and other responsibilities of the house and the petitioner. Now the complainant is exploiting the vulnerable position, health and status of the petitioner by filing false and frivolous complaint just to exploit, black mail and commit extortion from the petitioner.
3. It is further stated in the petition that the complainant was taking care of the petitioner since 2015 while his wife had deserted from last 7 years but it is reiterated that there was no incident of any rape or forced sexual relationship rather the incident being quoted in FIR are concocted and nothing but exaggeration of facts aimed to ruin the life and career of the petitioner. In January, 2017 the petitioner and his wife Nitu Bala with mediation efforts decided to reconcile and bury the hatches and given another chance to the marriage for the sake of the child and the future. On 20th January 2017 the wife joined the matrimony with the petitioner and relationship blossomed and even the marriage was consummated on bed and 561-A Cr.P.C. No.31/2018 Page 2 of 4 board. The petitioner was again blessed with another daughter out of the resumed marriage in October, 2017. It is stated that one of the pre conditions the wife of the petitioner put was that the nursing maid/care taker of the petitioner-complainant must not live in the house and in this regard the complainant on some discussion with the wife of the petitioner left the work/job and started living at Nagrota and the petitioner was providing her salary/financial support etc. during the job and even thereafter.
4. It is stated in the petition that the allegations leveled in the FIR are totally false that the petitioner got her divorced and then married her, since now it has come into the notice of the petitioner that the complainant is habitual black mailer and has exploited people for the sake of benefits, money and status. In the entire complaint neither any day, date or any specific incident of any rape or sexual intercourse has been submitted which is a sine qua non of criminal proceedings and while she was living with the petitioner from 2015 and left in September, 2016 but has failed to submit as to why she kept silence from last more than two years and what prompted her now to file the FIR at this stage. Lastly, it is stated that the entire story projected in the complaint is false and frivolous and merely to black mail the petitioner as the complainant is demanding money/expenses and house, land and job from the petitioner but her anger and vengeance came to such an extent that she took this step of filing false case against the petitioner.
5. In the facts and circumstances as stated above, learned counsel for the petitioner has prayed that the petitioner be granted anticipatory bail as the petitioner undertakes to cooperate with the police and also undertakes to abide by all conditions imposed by the Court.
6. During the course of hearing, learned counsel for the petitioner has placed reliance on various judgments.
7. Learned counsel for the complainant is also present and she has argued that prima facie case is made out against the accused/petitioner and she has also 561-A Cr.P.C. No.31/2018 Page 3 of 4 argued that in view of restriction imposed under Section 497-C Cr.P.C., anticipatory bail is not maintainable.
8. I have considered the rival contentions.
9. Section 497-C Cr.P.C. reads as under:-
"497-C. Special provision regarding bail in certain offences against women etc. - (1) Not withstanding anything contained in this Code no person accused of an offence punishable under sections 304-B, 326A, 370, 376, 376A, 376C, 376D, or 376E of Ranbir Penal Code shall if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
(2) The restrictions on granting of bail specified in sub-section (1) shall be in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.
(3) Nothing in section 497A of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence specified in sub-section (1)."
10. Bare perusal of clause (3) of Section 497-C Cr.P.C., it is evident that provisions of Section 497-A Cr.P.C. (grant of anticipatory bail) shall not be applicable in cases falling under Sections 304-B, 326-A, 370, 376, 376A, 376C, 376D, or 376E of Ranbir Penal Code. Therefore, without commenting on merit of the case, present bail application for grant of anticipatory bail in FIR No.06/2018 registered by Police Station Janipur under Section 376/420 RPC, is not maintainable. It is dismissed accordingly.
(Sanjay Kumar Gupta) Judge Jammu 22.01.2018*Narinder 561-A Cr.P.C. No.31/2018 Page 4 of 4