Jammu & Kashmir High Court
2 vs Ut Of Jammu & Kashmir Through Sho P/S ... on 23 December, 2022
Author: Mohan Lal
Bench: Mohan Lal
S. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
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Reserved on: 05-11-2022.
Pronounced on: 23-12-2022.
(I) BA No. 161/2021 (CrlM Nos. 284/2022 & 1039/2021)
Devinder Singh age 19 years S/O Raj Kumar R/O Village Agli Dhar Tehsil
Ramkote District Kathua. .......Applicant(s)
V/s.
1. UT of Jammu & Kashmir Through SHO P/S Billawar;
2. Sudesh Kumar S/O Man Chand R/O Rampur Rasul Tehsil Billawar District
Kathua ... ...Non-applicant(s)
(II) B.A. No. 81/2021 (CrlM No. 508/2021)
Shushma Devi age 35 years w/o Bishan Dass R/O Thara Kalwal Tehsil Ramkote
District Kathua. ......Applicant(s)
V/s
UT of Jammu and Kashmir through SHO P/S Billawar.
(III) B.A. No. 97/2021 (CrlM Nos. 597/2021 & 438/2022)
Bishan Dass age 47 years S/O Ram Saran R/O Thara Kalwal Tehsil Ramkote
District Kathua.
V/s
1. UT of Jammu and Kashmir through SHO P/S Billawar;
2. Sudesh Kumar S/O Man Chand R/O Billawar R/O Rampur Rasul Tehsil
Billawar District Kathua.
Through :- Sh. Arjun Singh, Advocate for applicants.
Through:- Sh. Dewakar Sharma, Dy. AG for respondent No.1.
Sh. Anil Khajuria, Advocate for respondent No.2.
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
O R D E R
1. Since all the aforesaid three bail applications viz; BA No. 161/2021, B.A. No. 81/2021, B.A. No. 97/2021 arise out of a common FIR No. 136/2020 registered with Police Station Billawar (District Kathua) for commission of offences under Sections 363, 376, 109 IPC r/w Sections 4/17 of the Protection of Children from Sexual Offences Act (POCSO Act), therefore, all of them are disposed of by this common order.
B.A No. 161/2021In BA No. 161/2021 applicant has claimed bail in terms of Section 439 of the Code of Criminal Procedure (hereinafter referred to as the, "Code") on the 2 B.A No. 161/2021 a/w connected matters grounds, that he is a peace loving and law abiding citizen of India and permanent resident of UT of J&K, hence entitled to the constitutional, fundamental, legal and statutory rights available under the Constitution and Criminal Procedure Code; that the applicant has a distant friend-Mr. Y, who is juvenile and in conflict with law, applicant belongs to a very decent family and works in his own shop situated on the roof of his residence; he has no criminal record and having full regard towards the law; that the applicant has never been involved in any case whether criminal or civil one; that one Miss X, daughter of one Sudesh Kumar went missing from her home on 24.11.2020 at about 9.45 am in the morning, her father searched for her everywhere including the houses of the relatives, but the girl was not found anywhere, father of the said girl filed a false and frivolous complaint in Police Station Billawar on 27.11.2020 and named the applicant as one of the accused alleged to have abducted his daughter Miss X, who came back to Ramkot (Challain) on 28.11.2020 when police took her into custody, wherefrom, she was taken to Munsiff Court (JMIC) Billawar by the police for recording of her statement under Section 164 of the Cr.P.C; that the juvenile who was suspected in the case was not arrested but the respondent made life of the petitioner hell, the juvenile approached juvenile board for bail and surrendered in the observation home at R.S. Pura, although the juvenile had obtained the bail order from the learned Principal Magistrate, but he could not get bail for eight (8) days as the police launched a manhunt for the father and mother of the juvenile who could not be taken into custody, and it was only after the order got modified to restore the custody of the mother of the juvenile, the custody was transferred; that there is huge delay in registration of the impugned FIR, the applicant has been unnecessarily dragged in the false, baseless and frivolous case, to which he is totally alien; that Miss X has stated firstly in her statement recorded under Section 164 of the Cr.P.C before the Munsiff Billawar that she had travelled to Mata Vaishno Devi Katra and no one had kidnapped her and she also refused to go home with her father, as he beats her for not acting according to him, whereby, she was sent to Nari Niketan Kathua upon her consistent refusal to live with her father at home; that one Sudesh Kumar on behalf of the victim (Miss X) filed a writ petition bearing SWP No. 154/2021 by concealing the material facts from the Court without making the applicant as party and got an ex-parte order of constitution of a Special Investigation Team (SIT) and even the security was provided to her, the father of Miss X wants to take revenge from the applicant and forces Miss X to 3 B.A No. 161/2021 a/w connected matters change her statement and even Miss X is not a juvenile at present as she has acquired majority on 07.03.2021; that the main accused in the case in hand is juvenile, his father and mother (co-accused) in the aforesaid FIR have already been granted interim bail by this Court in two separate bail applications; that the applicant first approached the Court of learned Principal Sessions Judge Kathua for grant bail, but was denied bail on 22.03.2021, thereafter, he again approached for grant of bail when the co-accused were granted bail and the challan was on the verge of completion, wherein no more investigation was required to be conducted, but the said order of refusal was passed by the trial Court mechanically without applying its mind and without appreciating the facts that the case is nothing but the misuse of provisions of Act in the hands of respondent No. 2 who is using Miss X for wrecking vengeance against the applicant and his parents; that the learned trial Court fell in grave error and applied presumption of Section 29 of the Act wrongly and as per the latest law, the presumption operates from the day charge is made against a person or at the most, challan is produced against the accused person, moreover, Section 29 of the Act is not applicable to the abetment enumerated and enlisted in Section 29 of the POCSO Act 2012; that the trial Court has failed to appreciate that the first statement of the victim recorded on 28.11.2021 under Section 164 Cr.P.C was voluntary and not in presence of anyone, wherein, she has specifically stated that her mother and father used to beat her for having friendship with the juvenile, while in the second statement made in presence of her mother against whom the victim has leveled allegations of beatings are self contradictory, as on the one side, she was saying that she was dropped by her father in the School and on the other side, she was saying that she dropped 4 Km away from the School, which is not probable; that on 31.05.2021, police produced final report against four accused persons, in which two of them have been granted bail by this Court, whereas the applicant is prosecuted under Sections 363, 109, 201 of IPC r/w Sections 4/17 of the Act wherein in the challan I/O has specifically come to the finding that on 24.11.2020 applicant was in Tehsil Ramkote on the crime scene, wherein he had taken a knife on the throat of Miss X and kidnapped her with juvenile; that the applicant has been unnecessarily dragged in false, baseless and frivolous case to which he is totally alien, the applicant's family has both moveable and immovable property and there is no question/apprehension of his jumping over the bail.
4 B.A No. 161/2021 a/w connected matters B.A. No. 81/2021In BA No. 81/2021 applicant has claimed anticipatory bail in terms of Section 438 of the Code of Criminal Procedure (hereinafter referred as the 'code') on the grounds, that she is a peace loving and law abiding citizen of India and permanent resident of UT of J&K, hence entitled to constitutional, fundamental, legal and statutory rights available under the Constitution and Criminal Procedure Code; that she has no criminal record and has never been involved in any criminal case whatsoever; she belongs to a very decent family, as her husband is on a very respective post, i.e., Girdawar in Revenue Department, Tehsil Majalta; that one-Miss X (daughter of one-Sudesh Kumar) went missing from her home on 24.11.2020 at about 9.45 am in the morning, her father searched for her everywhere, but could not find her anywhere, whereas the said missing girl came back to Ramkot (Challain) on 28.11.2020 and was taken into custody by the police, whereafter, she was taken to the Munsiff Court (JMIC), Billawar by the police for recording of her statement under Section 164 of the Cr.P.C; that there is huge delay in registration of FIR, applicant has been unnecessarily dragged in the aforesaid false, baseless and frivolous case to which the she is totally alien; the victim in her statement recorded under Section 164 of the Cr.P.C has stated that she has travelled to Mata Vaishno Devi Katra and no one had kidnapped her, she refused to go home with her father, as he beats her for not acting according to him, whereby she was sent to Nari Niketan, Kathua upon her consistent refusal to live with her father at home; that the applicant has a strong apprehension of her arrest by the police at the instance of some influential and strong minded persons, who have inimical relations with her; that the applicant and her family are reputed persons of the society and there is no criminal proceedings pending against them in any Court of law; that the applicant's family has both moveable and immovable properties and there is no question of jumping over the bail; that in the instant anticipatory bail application, notice was issued to the non-applicants/respondents and thereafter, on 29.03.2021 interim anticipatory bail was granted in favour of the applicant which stands extended till date.
B.A. Nos. 97/2021In BA No. 97/2021 applicant has claimed bail in anticipation of his arrest u/s 438 of the Code of Criminal Procedure (hereafter referred as the 'code') on the grounds, that he is a peace loving and law abiding citizen of India and permanent resident of UT of J&K, hence entitled to constitutional, fundamental, legal and statutory rights available under the Constitution and Criminal 5 B.A No. 161/2021 a/w connected matters Procedure Code; that he has no criminal record and has never been involved in any criminal case whatsoever; that he belongs to a very decent family and works on a very respectable post of Girdawar in Revenue Department Tehsil Majalta; that his arrest is for the sake of wrecking vengeance by one Sudesh Kumar who has developed hatred with the applicant as his son has a best friend- Miss X, who is not liking to live with Sudesh Kumar; that one-Miss X (daughter of one Sudesh Kumar) went missing from her home on 24.11.2020 at about 9.45 am in the morning, her father searched for her everywhere, but could not find anywhere, whereas, the said missing girl came back to Ramkot (Challain) on 28.11.2020 and was taken into custody by the police, whereafter, she was taken to the Munsiff Court (JMIC) Billawar by the police for recording of her statement under Section 164 of the Cr.P.C; that there is huge delay in registration of FIR, applicant has been unnecessarily dragged in the aforesaid false, baseless and frivolous case, to which the he is totally alien; that in her statement recorded under Section 164 of the Cr.P.C, victim has stated that she has travelled to Mata Vaishno Devi Katra and no one had kidnapped her, she refused to go home with her father as he beats her for not acting according to him, whereby, she was sent to Nari Niketan Kathua upon her consistent refusal to live with her father at home; that the applicant has a strong apprehension of his arrest by the police at the instance of some influential and strong minded persons, who have inimical relations with here; that the applicant and his family are reputed persons of the society and there is no criminal proceedings pending against them in any Court of law; that the applicant's family has both moveable and immovable properties and there is no question of jumping over the bail; in the instant anticipatory bail application, notice was issued to the non- applicants/respondents on 12.04.2021 and on the same date interim anticipatory bail was granted in favour of the applicant which stand extended till date.
2. Respondent No.1 UT of J&K has opposed the bails of applicants/accused on the grounds, that on 27-11-2020 at 1045 hours complainant namely Sudesh Kumar produced an application in police station Billawar revealing therein that his daughter namely Sunali Devi age 16/17 years studying in 10th class in KK Vidilaya (Durang) on 23-12-2020 had gone to her School as usual, while returning back to home from the School she went to Fast Food shop at Dingi Simbli, at about 02/2.30pm one boy namely Neeraj S/O Bishan Dass came and has beaten his daughter and dragged her from her arm and kidnapped her. It is contended, that on 28-11-2020 I/O recovered the kidnapped minor girl from 6 B.A No. 161/2021 a/w connected matters Challan Chowk Rampur and got her statement recorded u/s 164-A Cr.pc, medical examination of minor victim Sonali Devi was got conducted and she was sent to Nari Niketan Social Welfare Center Kathua, statement of father of the victim was recorded, however, lateron complainant Sudesh Kumar alongwith his minor daughter (victim) filed a writ petition (C) No. 154/2021 before Hon'ble High Court which directed the DG of police of UT of J&K to constitute a Special Investigation Team (SIT) comprising of senior police officers not below the rank of SSP and also SSP Kathua to provide security to minor victim and her family, lateron in compliance to Hon'ble High Court order dated 04-02-2021 SIT headed by Shalinder Kumar Mishara (IPS) SSP Kathua comprising of other officers conducted the investigation of the case, wherein, statement of minor victim was recorded and her medical examination including the preparation of vaginal smear slides were deposited in FSL Srinagar for expert opinion, statement of victim u/s 164 Cr.pc was got recorded in presence of her mother as per section 26 of POCSO Act and as per the said statement offences u/ss 376/109 IPC and 4/17 POCSO Act stand proved against accused persons (1) Neeraj Kumar S/O Bishan Dass, (2) Bishan Dass S/O Ram Saran, (3) Sushma Devi w/o Bishan Dass (mother of Neeraj Kumar), (4) Vinod Kumar (maternal uncle of Neeraj Kumar) & (5) Devinder Singh @ Balvinder Singh S/O Raj Kumar (applicant No.1 herein). It is further contended, that as per statement of the victim recorded u/s 164 Cr.pc it has been established that applicant/accused No.1 Devinder Singh was involved in kidnapping of the victim alongwith juvenile Neeraj Kumar & one Vinod Kumar whereby accused Devinder Singh had put a knife on the throat of minor victim on 24-11-2021 while kidnapping her, whereas he remained present in Alto Car when minor victim was raped by Juvenile Neeraj Kumar, offences committed by accused persons are very heinous and against society at large, the liberty of an individual can be subjected to reasonable restrictions, applicants/accused have committed gruesome act and does not deserve the leniency of bail as offences u/s 363/376/109 IPC r/w 4/17 POCSO Act have been established against them and if granted bail there is every likelihood that the accused persons may jump over the bail.
3. Respondent No.2 Sudesh Kumar (father of the victim) has opposed the bails on the grounds, that the offences alleged against applicants/accused are heinous in nature as they are involved in commission of offences under sections 363/376/109 IPC r/w 4/17 of POCSO Act. It is contended, that the statement of 7 B.A No. 161/2021 a/w connected matters victim recorded u/s 164-A Cr.pc during the course of investigation by the SIT clearly indict the accused persons for commission of offences attributed against them as the victim has been subjected to sexual offence by juvenile accused Neeraj Kumar and the other accused persons have abetted the commission of offences of rape and kidnapping, there is apprehension that if granted bails, the accused persons would abscond and give a slip to law whereby case of the prosecution would be prejudiced. Prayer has been made for rejection of the bail applications.
4. Ld. counsel for the applicants/accused has vehemently supported the grant of bails in their favour by canvassing arguments, that the statement of the victim/prosecutrix has been recorded by the trial Court on 04.03.2022, out of the four accused in the case in hand, accused namely Sushma Devi and Bishan Dass have been granted bails in anticipation of their arrest by Hon'ble High Court, the principal juvenile accused namely Neeraj Kumar who has raped the victim/prosecutrix has been granted bail, the allegations against applicants/accused are only in regard to the abetment of commission of kidnapping and rape u/s 109 r/w 363/376 IPC r/w 4/17 POCSO Act. It is argued, that applicant/accused No.1 namely Devinder Singh is lying in detention for the last almost two (2) years from the date of his arrest on 26-03- 2021, it is settled proposition of law that even where a prima-facie case is established against an accused the approach of court in the matter of bail should not be that the accused be detained by way of punishment but whether the presence of accused would be readily available for trial, regarding question of influencing the witnesses it is to be seen that material witnesses viz; victim and her parents cannot expected to be influenced, refusing of bail would mean nothing but punishing the accused without trial, fundamental postulate of criminal jurisprudence is that the presumption of innocence always lies in favour of an accused, "grant of bail" is general rule and "refusal an exception". Prayer has been made for grant of bail.
5. Learned counsel for the respondents have reiterated the stand taken by them in their objections/response and have strenuously opposed the grant of bails to the accused persons on the grounds, that the accused persons are involved in heinous crime against the minor victim which is against the society as well and therefore do not deserve the leniency of bail. It is argued, that applicant/accused No.1 has put a knife on the throat of the victim and has abetted the commission of rape committed by juvenile co-accused Neeraj Kumar, while the other 8 B.A No. 161/2021 a/w connected matters accused persons have also abetted the commission of kidnapping of the minor victim. It is vehemently argued, that the nature and character of evidence against applicants/accused is serious, there is reasonable apprehension that if enlarged on bails the applicants/accused would temper the prosecution evidence and give a slip to law, thereby, thwarting the course of justice, huge public interest is involved in the case, therefore, applicants/accused are not entitled to the grant of bails.
6. I have heard Ld. Counsel for applicants/accused, Ld. Counsel for respondents, gone through the contents of bail applications and objections thereto filed by the respondents, and have also gone through the relevant law on the subject matter. The principles which generally govern the grant of bail are relatable to, (i) Seriousness of allegations, severity of punishment, the character of evidence on which the charges is supposed to be sustained, tempering and intimidating of witnesses and chances of running away from the trial, (ii) False implication of the accused, allegations leveled not believable and the wrecking vengeance for political or business reasons. It is also to be noted that at the stage of granting bail, the court can only go into question as to whether a prima-facie case is established against the accused and cannot go into the evidentiary value, creditability and reliability of the witnesses. In light of the principles laid down above, the plea projected by the ld. Counsel for the applicants/accused in the bail application is required to be examined generally. Applicants/accused are indicted for commission of offences u/ss 363/376/109 IPC r/w Sections 4/17 POCSO Act. Chargesheet has been laid in the court of Principal Sessions Judge Kathua on 31-05-2021. Charges have been framed against the applicants/ accused on 05-10-2021 which they have denied and the prosecution is at the stage of producing its witnesses. In a case reported in 2010 (3) JKJ 129 (HC) (Jagdish Kumar & Ors Versus State & Ors) J&K High Court while granting the bail to the accused charged for commission of offence u/s 306/498-A RPC, and while discussing the principles of "prima-facie case", "question of influencing the prosecution witnesses"& "approach of the court in granting bail in non-bailable offences", in paras 17, 18 & 19 of the judgment held as under:-
"17.While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other circumstances. Even where a prima-facie case is established, the approach of the court in the matter of bail, is not that the accused should be 9 B.A No. 161/2021 a/w connected matters detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence.
18. The circumstances which have been brought into focus by the respondents as also by the learned sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the learned Principal Sessions Jude to substantiate this plea. It is mere bald assertion, which cannot be accepted unless there is some material to that extent.
19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent.
Ratio of the judgment (Supra) makes the legal position abundantly clear, that even if prima-facie case is established, the approach of the court in granting bail should be that the accused should not be detained by way of punishment, and regarding influencing of witnesses, the material witnesses viz; prosecutrix and her parents cannot be expected to be win over by the accused. In another case law reported in 2016(2)J.K.J 702, J&K High Court, [Arjun Katal and Ors. versus State of J&K & Ors.] J&K High Court while granting bail to accused for offences u/ss 498A,304B & 306 RPC & while observing that refusal of bail would amount to punishing the petitioner without trial, in Head Note "B" & paras 17,25 & 26 of the judgment held as under:-
B. Criminal Procedure Code, Svt., 1989, Section 487C-Ranbir Indian Penal Code, Svt.,1989,Section 498A,304B and 306- Dowry death-Grant of bail-Entire evidence implicating whole family cropped up after incident-No indication of earlier ever domestic violence or incident of harassment, violence relating to demand of dowry by petitioners- Bar under proviso of Section 497C not attracted- Petitioner husband and mother-in-law in custody for more than one years-Refusing bail nothing but punishing petitioners for alleged involvement in death of deceased -Bal allowed.
17. In the case on hand, it has been noticed that the marriage of the couple had taken place more than two years prior to the unfortunate incident. The marriage had procreated a male child.
There seems substance in the argument of learned counsel for the petitioners that entire evidence implicating the hole family including parents-in-law and brother-in-law of the deceased, besides the husband, cropped up after the incident and that the material collected by the I.O. does not indicate that earlier ever there had been any report of any domestic violence or an 10 B.A No. 161/2021 a/w connected matters incident of harassment and violence relating to demand of dowry by the petitioners and also that the I.O did not even investigate whether the brother-in-law was also present in the house during those days or not.
25. Experience would show that whenever a woman dies an unnatural death shortly after her marriage or within seven years of the marriage, her parents feel that her husband and in-laws are responsible for such death. That feeling of the parents of the deceased itself becomes a sufficient ground for booking the husband and the parents and quite often siblings and other relatives of the husband. Whether they were responsible for the death of the deceased or not can be ascertained only after investigation and verified after trial but they are arrested in any case. The important question relating to their liberty, thus, arises for consideration of the bail/trial court.
26. As said above, petitioners had been and presently two of them, that is mother-in-law and husband of the deceased are in custody for last more than one year. Charges against them have been framed by the trial court on 07.09.2015. Minutes recorded in the trial court file would show that but for one witness whose statement has been recorded on 22.12.2015, prosecution has not produced any other witnesses or even parents of the deceased during three or four calendars fixed by the court. The accusations do not merit refusal of bail to the mother-in-law and the brother-in-law of the deceased at this stage after more than a year of their arrest. All the material witnesses are family members of the parents of the deceased inasmuch as no apprehension of the petitioners' tampering with the evidence or jumping over the bail has been expressed by the State nor can be visualized. Refusing bail to them at this stage would be nothing but punishing them for their alleged involvement in the death of the deceased which is not permissible under law. Ratio of judgment (Supra) also makes the legal proposition abundantly clear, that refusing bail is nothing but punishing the accused, whether the accused is responsible for the death of the deceased has to be verified during trial and material witnesses viz; family members of deceased cannot be win over. Ratios of the judgments of "Jagdish Kumar's Case" & "Arjun Katal's Case", (Supra) make it manifestly clear, that the approach of the court in matter of bail should not be that accused should be detained by way of punishment but whether his/her presence would be readily available for trial & material witnesses viz; family members of the deceased cannot be win over In Data Ram Singh vs. State of Uttar Pradesh & Ors. [2018 (3) SCC 22] the concept of bail has been encapsulated by Hon'ble Supreme Court 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 11 B.A No. 161/2021 a/w connected matters 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 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 being the result that more and more persons are being incarcerated and for longer periods.
This does not do any good lo 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 Yet, 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 1that 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 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 NikeshTarachand Shah vs Union of India 2 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia vs. Stale of Punjab in vhich it is observed that it was held war back in Nagendra Nath Chakravarti is that bail is not to he withheld as a punishment. Reference was also made 1o Emperor v. HL 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.
7. It is apt to reiterate here, that applicants/accused are indicted in FIR no. 136/2020 of police station Billawar (Kathua) for commission of offences u/ss 363/376/109 IPC r/w 4/17 of POCSO Act for the allegations of abetment of kidnapping and rape committed by juvenile co-accused Neeraj Kumar upon victim/prosecutrix. Charges framed against applicants/accused on 05-10-2021 by the trial court of Pr. Sessions Judge Kathua have been denied by the accused who have claimed the trial. The trial court vide it's order dated 31-05- 2021 has rejected the bail application of A-1 Devinder Singh. The material witnesses of the prosecution viz; the prosecutrix/victim and her parents cannot be expected to be won over by the accused party. The principal accused 12 B.A No. 161/2021 a/w connected matters namely Neeraj Kumar who is juvenile and is alleged to have committed rape upon the victim has already been enlarged on bail as is depicted from the bail order dated 31-05-2021 rendered by the court of Pr. Sessions Judge Kathua by which bail order bail of A-1 Devinder Singh has been rejected. A-1 Devinder Singh is lying in detention in District Jail Kathua for the last more than 1 year and 9 months from the date of his arrest on 26-03-2021. A-2 & A-3 namely Shushma Devi & Bishan Dass have been granted interim bails in anticipation of their arrest by J&K High Court on 29-03-2021 & 12-04-2021 respectively which directions continue till date, and nothing has been brought to the notice of this court that A-2 & A-3 have violated any of the terms and conditions of the said bail orders. As per the ratios of judgments (Supra) the legal position is no longer res-integra and it is the cardinal principle of criminal jurisprudence that every accused is presumed to be innocent till guilt is proved against him and the approach of court in the matters of bail should be that the accused should not be detained by way of punishment which can only be inflicted upon the accused after the regular trial and if he is found guilty. The powers to grant bail has to be considered in the backdrop of the constitutional guarantees contained in Article-21 of the Constitution of India which guarantees right to liberty of an individual [vide Jagir Singh Vs. Jagat Singh & Anr. 2012 (2) JKJ 231 (HC)]. Every accused has right to defend his case and by keeping the accused in detention, it would defeat his right to defend his case. Applicant/accused No.1 Devinder Singh in the case in hand cannot be kept in incarceration for a sufficient indefinite long period of time as the same would amount to inflicting pre-trial punishment which is against the basic tenets of criminal jurisprudence. The offences indicted against applicants/accused do not carry death penalty or life imprisonment, but also alternative punishments. Speedy trial is one of the fundamental right of an accused which could get defeated if the prosecution shows slackness and delay in examining its witnesses, therefore, the trial court is within its bounded duty to concluded the trial expeditiously. The apprehension of the prosecution that applicants/ accused will abscond can be secured by way of sufficient surety from applicants/accused. In view of the aforesaid discussion, as the material witnesses viz; victim and her family members cannot be expected to be win over by the accused side, at this stage A-1 Devinder Singh has carved out a strong case for grant of bail in his favour. Accordingly, A-1 Devinder Singh is admitted to bail in the sum of Rs. 50000/- before Registrar Judicial of this 13 B.A No. 161/2021 a/w connected matters court with the direction to furnish personal recognizance of the like amount before Superintendent District Jail Kathua. A-2 & A-3 namely Shushma Devi & Bishan Dass whose interim anticipatory bails dated 29-03-2021 & 12-04- 2021 and extended till date are made absolute. However, before parting the following conditions are imposed upon applicants/accused.:-
(i) that the applicants/accused shall not influence any of the prosecution witness/witnesses or intimidate them or dissuade them from deposing before the trial court;
(ii) that the applicants/accused shall appear before the trial court on each and every date of hearing except exempted by the trial court;
(iii) that the applicants/accused shall not leave the territorial jurisdiction of the High Court of J&K without seeking prior permission;
(iv) that in case the prosecution collects any material that during the bail periods applicants/accused have influenced the prosecution witnesses or tried to intimidate them, the prosecution would be well within its rights to move an application before this court for cancellation of their bails;
8. Disposed of accordingly.
9. Registry to place copy of this order in each of the file.
(Mohan Lal) Judge Jammu 23.12.2022 Vijay Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No