Jammu & Kashmir High Court
Kuldeep Kumar vs Union Territory Of J&K on 20 January, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
h475
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No.164/2024
Reserved on : 14.01.2024
Pronounced on : 20.01.2024
Kuldeep Kumar, age 35 years
S/o Sh. Des Raj
R/o Kotli Jijjan, Barola, Uhampur
Through his wife namely Preeti Devi, age 32 years
W/o Kuldeep Kumar R/o Kotli Jijjan, Udhampur ...Petitioner(s)
Through:-Mr. Gagan Basotra, Sr. Advocate with
Mr. Mohinder Kumar, Advocate
V/s
1. Union Territory of J&K
Through SHO Police Station,
Rehambal District Udhampur
2. Superintendent,
District Jail, Udhampur.
3. Miss X
C/o SHO Police Station
Rehambal District Udhampur
...Respondent(s)
Through:- Mr. Sumeet Bhatia, GA
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1. This is an application by the petitioner under Section 483 of BNSS seeking his enlargement on bail in case FIR No.251/2020 under Section 376 IPC read with Section 5(n)/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), who is facing trial before the Principal Sessions Judge, Udhampur ["the Trial Court"]. Prior to approaching this Bail App No.164/2024 2 Court, the petitioner had moved a similar application before the Trial Court where the trial against the petitioner is pending adjudication. The Trial Court after appreciating the rival contentions did not find it a fit case to enlarge the petitioner on bail pending trial and as a result, rejected the application for bail filed by the petitioner vide its order dated 7th June, 2024.
2. Being dissatisfied and aggrieved by the order dated 7th June, 2024 passed by the Trial Court, the petitioner has filed the instant petition seeking indulgence of this Court to grant him bail in the aforementioned case.
3. The petitioner seeks his enlargement on bail, inter alia, on the following grounds:-
i) The petitioner is innocent and has been falsely implicated in the FIR registered for commission of offence under Section 376 IPC read with 5(n)/6 of the POCSO Act.
ii) That there is huge unexplained delay of 8th months and two days in the alleged occurrence and lodging of FIR, which fact has escaped consideration of the Trial Court.
iii) That the medical record of the prosecutrix does not support the case of the prosecution.
iv) That the family of the prosecutrix and the petitioner were having some dispute in relation to the property and the FIR has Bail App No.164/2024 3 been lodged with an oblique motive just to settle the civil dispute.
iv) According to the prosecutrix, daughter of the petitioner was also sitting in the car but the she has not been arrayed as witness by the prosecution.
4. Per contra, in the objections filed by the official respondents the bail plea has been opposed on the count that the petitioner is involved in a serious offence and the bail application filed by him before the Trial Court has already been dismissed. The complainant, though served and caused her appearance, chose not to file any objections. During the course of arguments, learned counsel have reiterated the contents of bail application and memo of objections.
5. Heard learned counsel for the parties and considered the matter.
6. It seems that on 27th September, 2023, a letter was received from One Stop Centre for Women Udhampur along with an application given by the prosecutrix alleging that on 25th January, 2023 the petitioner had committed rape upon her at about 0730 in the evening and he threatened that if she informs anyone about the incident, he would kill her brother and mother. Upon this, FIR No.251/2023 for offences under Section 376 IPC & 5/6 POSCO Act was registered at Police Station, Rehambal and the investigation was undertaken by the concerned Police Station. During investigation, medical examination of the prosecutrix was got conducted, the Investigating Officer visited the scene of crime, prepared the site plan Bail App No.164/2024 4 and photography was also done. The date of birth certificate of the prosecutrix has been obtained from the concerned school, which indicates her date of birth as 10th September, 2009. The statement of prosecutrix was recorded under Section 164 Cr.P.C. and the statements of other witnesses were recorded under Section 161 Cr.P.C. On 29th September, 2023, the petitioner was taken into custody. On the basis of the investigation, offences under Section 376 IPC read with Section 5(n)/6 POSCO Act have been found established against the petitioner and challan came to be produced before the Trial Court on 28th November, 2023. The petitioner has been charged on 11th January, 2024, the petitioner denied the charge and claimed to be tried. Statement of the prosecutrix stands recorded by the Trial Court on 29th November, 2024.
7. Mr. Basotra, learned senior counsel appearing for the petitioner referred to and relied upon the judgments of this Court rendered in the cases of Vishal Bhagat and another v. Union Territory of Jammu and Kashmir, JKJ Online 79997 and Nawaz Ahmad Sheikh v. Union Territory of J&K and others, JKJ Online 85138.
8. The petitioner is involved in an anti social penal offence but at the same time his involvement presently is at the stage of accusation only. The factum of alleged commission of crime has been disputed by the learned counsel for the petitioner on various factual and legal grounds. Law is well settled that in any case bail cannot be withheld as a measure of punishment and ordinarily withholding it, should be an exception only, to be involved in exceptional circumstances attending a particular case. Nothing has been Bail App No.164/2024 5 pointed out or brought on record to suggest that the case in hand has any such exceptional features as could justify withholding bail to the petitioner particularly because the petitioner has already suffered incarceration for around one year and four months and the case having been already instituted, charge framed and prosecution witnesses are being examined before the Trial Court, there is no scope of hampering the investigation.
9. The Apex Court in case titled Satender Kumar Antil v. Central Bureau of Investigation and another reported as (2022) 10 SCC 51 has laid down certain guidelines for the courts to be followed while determining the bail applications. The paragraphs 12 and a portion of paragraph 13 being relevant are reproduce hereunder:
"BAIL IS THE RULE
12. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India. This court in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, held that:
"19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], the purpose of granting bail is set out with great felicity as follows: (SCC pp. 586-88 , paras 27-30) '27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re [ Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] , AIR pp. 479-80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the "Meerut Conspiracy cases"Bail App No.164/2024 6
observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [ K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931 All 504 : 1932 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section
437. It was observed by the Court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p.
358 it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. State [Gudikanti Narasimhulu v. State, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para'1) '1.... the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. ... After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The Bail App No.164/2024 7 last four words of Article 21 are the life of that human right.'
29. In Gurcharan Singh v. State (UT of Delhi) [ Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that: (SCC p. 129, para 29) '29. ... There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.'
30. In AMERICAN JURISPRUDENCE (2 nd, Vol. 8, p. 806, para 39), it is stated:
'Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.' It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
24. Article 21 is the Ark of the Covenant so far as the Fundamental Rights Chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights Chapter (along with Article 20) that cannot be suspended even in an emergency [see Article 359(1) of the Constitution]. At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v.
Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] ."
13. Further this Court in Sanjay Chandra v. CBI (2012) 1 SCC 40, has observed that:
Bail App No.164/20248
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
10. It is also a well recognized principle of granting bail that frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution case, in the normal course of events, the accused is entitled to an order of bail.
11. Admittedly, there is a long delay of eight months and two days between the alleged occurrence and filing of complaint. Further, daughter of the petitioner, namely, Jhanvi, who according to the prosecutrix, had also gone to the market to purchase some material along with the petitioner and the prosecutrix on the day of alleged occurrence, has not been cited as prosecution witnesses. Learned senior counsel appearing for the petitioner would submit that the petitioner has been implicated in a false and frivolous case just to settle civil/property dispute. He submits that according to the statement of the prosecutrix, on 25th September, 2023, a quarrel had taken place between her brother and the petitioner in which wife of the petitioner got injured, she reported the matter to the police and the FIR in question was lodged on the next day as a counter blast. He submits that all these facts Bail App No.164/2024 9 raise serious doubt about the genuineness of the prosecution case, as such, prays for enlarging the petitioner on bail.
12. Before concluding the matter, I would like to observe that I have consciously avoided consideration of the rival contentions touching merits of the matter as the gravity of the offence that can be said to have been committed; and other technicalities including delay in lodging the FIR, non inclusion of the sole witness, who as per the prosecutrix was accompanying the prosecutrix and the petitioner on the day of incident etc attending the matter, deserve to be better left for appreciation of the Trial Court. The only apprehension projected by the learned counsel for the respondents that the petitioner may try to win over the prosecution witnesses if bail is granted in his favour can be well taken care of by imposing stringent conditions while granting bail.
13. For all that has been discussed above, the petition is allowed and the applicant/accused is admitted to bail subject to the following conditions:
i) That he shall furnish personal bond in the amount of Rs.50,000/- with one surety of the like amount to the satisfaction of the Trial Court.
ii) That he shall appear before the Trial Court on each and every date of hearing;
iii) That he shall not leave territorial limits of Union Territory of J&K, without seeking prior permission of the Trial Court;
iv) That he shall not directly or indirectly try to influence the prosecution witnesses in any manner whasoever.Bail App No.164/2024 10
v) In the event of violation of any of the conditions imposed while granting bail, any of the respondents may approach this Court for cancellation of the concession bail granted to the petitioner under this order.
14. The bail application shall stand disposed of on the above lines.
(Moksha Khajuria Kazmi) Judge Jammu.
20.01.2024 Vinod.
Whether the order is speaking : Yes Whether the order is reportable: Yes Vinod Kumar 2025.01.20 14.31 I attest to the accuracy and integrity of this document Jammu