Jammu & Kashmir High Court - Srinagar Bench
Sharuk Sabdar Khan vs Ut Of J&K on 9 March, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
S. No.85
Regular List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
Bail App. No.135/2021
SHARUK SABDAR KHAN ...PETITIONER(S)
Through: Mr. Tahir Ahmad Bhat, Advocate.
Vs.
UT of J&K ....RESPONDENT(S)
Through: Ms. Asif Padroo, AAG.
Mr. Mohammad Iqbal Bhat, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT(ORAL)
09.03.2022
1. Petitioner has filed the instant petition under Section 439 Cr. P. C seeking bail in FIR No.183/2021 for offences under Section 363, 376 511, 323 IPC and Sections 7/8 of POCSO Act registered with Police Station, Kulgam.
2. It is contended that a false and frivolous FIR has been registered against the petitioner and that he is not involved in any offence. It is further averred that the petitioner had approached the Court of learned Sessions Judge, Kulgam, for grant of bail but the learned Sessions Judge has rejected his bail application. According to the petitioner, co-accused has Page 2 of 9 been enlarged on bail by this Court in terms of order dated 06.10.2021 passed in Bail App No.92/2021 and, as such, on the ground of parity, petitioner is entitled to grant of bail. It is also contended that an accused is presumed to be innocent until proved guilty and, as such, the petitioner, who is alleged to have committed the offences which are not punishable with death sentence and imprisonment for life, deserves to be enlarged on bail and that refusal to grant bail would amount to inflicting of punishment upon him without trial.
3. Reply on behalf of the respondent -State has been filed, in which it is contended that the petitioner is involved in a heinous crime and, as such, he does not deserve to be enlarged on bail. It is further contended that admitting the petitioner to bail would cause grave prejudice to the case of the prosecution as the trial is yet to begin and the statement of the prosecutrix is yet to be recorded. It is also contended that in case petitioner is admitted to bail, he may intimidate or influence the prosecution witnesses, particularly the prosecutrix who is a minor girl.
4. I have heard learned counsel for the parties and perused the record of the case.
5. The facts emerging from the charge sheet filed against the petitioner and co-accused before the trial court, a copy Page 3 of 9 whereof has been placed on record by the petitioner, are that on 29.07.2021, the complainant, the father of the victim, lodged a written report before Police Station, Kulgam alleging therein that his daughter has been kidnapped by the accused including the petitioner herein and that the accused had attempted to commit rape upon her. On the basis of said report, FIR No.183/2021for offences under Section 363, 376 511, 323 IPC and Sections 7/8 of POCSO Act was registered by Police Station, Kulgam, and investigation of the case was set into motion, whereafter charge sheet came to be filed against the accused including the petitioner herein before the trial court.
6. As per contents of the charge sheet, on the fateful day at about 9.00AM, the victim girl left her house for her school. At about 12.30 PM, the victim, a minor girl, started to proceed back towards her home but on the gate of the school, accused confronted her and asked her to board a red coloured Swift vehicle which was resisted by the victim where-after she was forcibly made to sit in the vehicle and kidnapped from there. It is further alleged in the charge sheet that the accused tried to commit rape upon the victim, outraged her modesty and gave a beating to her resulting in injuries to her. The charge sheet goes on to allege that when the victim raised alarm, the accused left her on Bye-pass Road near Chawalgam. During Page 4 of 9 investigation of the case, the victim was subjected to medical examination and her statement and that of her father were recorded before the Magistrate under Section 164 of Cr. P.C. After investigation of the case, offences under Section 363, 376 511, 323 IPC and Sections 7/8 of POCSO Act were found established against the accused persons including the petitioner herein.
7. Before coming to merits of this case, legal position about the matters to be considered for deciding a bail application are required to be noticed. These are as under:
(i) Whether there is any prima facie or reasonable ground to believe that the accused has committed offence;
(ii) Nature and gravity of the charge;
(iii) Severity of punishment in the event of conviction;
(iv) Danger of the accused absconding or fleeing after release on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with and
(viii) danger of justice being thwarted by grant of bail.
8. When it comes to offences punishable under a special enactment, such as, POCSO Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment. Section 31 of the said Act makes the provisions of the Code of Criminal Procedure applicable to the proceedings before a Special Court and it provides that the provisions of the aforesaid Code including the provisions as Page 5 of 9 to bail and bonds shall apply to the proceedings before a Special Court. It further provides that the Special Court shall be deemed to be a Court of Sessions. Thus, it is clear that the provisions of Cr. P. C including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act. The present application is, therefore, required to be dealt with by this Court in accordance with the provisions contained in Section 439 Cr. P. C. The other provisions of the POCSO Act, which are also required to be kept in mind, are Sections 29 and 30, which read as under:
"29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
30. Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental stage but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability".
9. Section 29 quoted above raises a presumption of guilt against the accused upon being prosecuted for offences under Sections 3, 5, 7 and 9 of the POCSO Act, unless contrary is Page 6 of 9 proved. Similarly, Section 30 quoted above raises a presumption with regard to existence of culpable mental state against an accused in prosecution of any offence under the Act which requires a culpable mental state on the part of the accused. Again, the accused in such a case has been given a right to prove the fact that he had no such mental state.
10. In the light of the aforesaid legal position, the material on record, particularly the statement of the victim/prosecutrix recorded under Section 164 Cr. P. C needs to be analysed.
11. The victim in her statement has clearly stated that it was petitioner herein, who made her to board the vehicle, gagged and kidnapped her from outside her school. She has further stated that petitioner gave a beating to her, tore her clothes and tried to molest her.
12. From the aforesaid statement of the prosecutrix, it is clear that she has implicated the petitioner and categorically stated that it is the petitioner who, after kidnapping her, has attempted to commit rape upon her. Thus, there is material on record to, prima facie, show the involvement of the petitioner in the alleged crime.
13. As already noted, Section 29 of the POCSO Act raises a presumption against a person who stands prosecuted for Page 7 of 9 certain offences including the offence under Section 7 of the said Act. Section 30 of the Act raises a presumption with regard to existence of culpable mental state on the part of the accused. Thus, the argument of learned counsel for the petitioner that there is a presumption of innocence operating in favour of the petitioner does not hold any merit in the face of the statutory presumption against his innocence.
14. It has been contended by learned counsel for the petitioner that co-accused has been granted bail by this Court and, as such, the petitioner is also entitled to grant of bail on the grounds of parity. He has placed on record a copy of the order whereby co-accused has been granted bail. A perusal of the order clearly reveals that this Court has granted bail to the co-accused upon analysing the statement of the victim/prosecutrix recorded under Section 164 Cr. P. C, who has attributed no role to the co-accused. It is only in those circumstances that co-accused has been granted bail by this Court. The case of petitioner is not on the same footing, inasmuch as the prosecutrix has clearly implicated the petitioner and attributed main role in the alleged crime to him. In fact, according to the prosecutrix, petitioner is the only perpetrator of the crime. Thus, it cannot be stated that there are, prima facie, reasonable grounds to believe that the petitioner has not committed the offence.
Page 8 of 9
15. So far as the gravity of the offence is concerned, the petitioner has committed a grave offence, inasmuch as he has attempted to commit rape upon a minor girl aged about 14 years. The offence of rape on a woman under 16 years of age carries a punishment of imprisonment for remainder of that person's natural life and as per Section 511 of the IPC, an attempt to commit such offence would carry one half of the aforesaid imprisonment. Thus, by no stretch of imagination it can be stated that the petitioner is alleged to have committed an offence which is of a trivial nature.
16. In the present case, the victim happens to be only 14 years of age and if the petitioner is enlarged on bail prior to recording of her statement before the trial court, there is every likelihood that the petitioner may influence her. Keeping in view her tender age, the apprehension of the prosecution in this regard appears to be justified.
17. Apart from the above, the petitioner has rushed to this Court immediately after his second bail application was rejected by the learned Special Court without there being any change of circumstances. I am conscious of the fact that this Court being a superior court can entertain the bail application even if the Special Court has rejected the earlier bail application but then there has to be some new development or material on record that would persuade this Court to take Page 9 of 9 a view different from the view taken by the Special Court. In the instant case, the bail application of the petitioner was dismissed by the learned Special Court on 25.10.2021 and within less than one month thereafter, he has approached this Court by way of instant petition without there being any change in the circumstances.
18. For the foregoing reasons, I do not find any merit in this application. The same is, accordingly, dismissed. It shall, however, be open to the petitioner to approach the learned Special Court with an application for grant of bail once the statement of the victim is recorded.
(Sanjay Dhar) Judge Srinagar, 09.03.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No