Irfan Ahmad Mir vs Union Territory Of J&K And Anr on 13 July, 2022

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Jammu & Kashmir High Court - Srinagar Bench

Irfan Ahmad Mir vs Union Territory Of J&K And Anr on 13 July, 2022

1. The petitioner has filed the instant petition under Section 439 of Cr.P.C seeking bail in FIR No.01/2021 for offences under Section 363, 376 and 109 of IPC read with Section 3/4 of POCSO Act registered with Police Station, Kupwara.

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 also averred that after the charge sheet was filed against the petitioner before the Court of Principal Sessions Judge, Kupwara on 24.04.2021, the same came to be transferred to the 1 st Additional Sessions Judge, Kupwara (Fast Track Court). Charges are stated to have been framed by the said Court against the petitioner and statements of as many as four prosecution witnesses were recorded. Later on, the Court of 1st Additional Sessions Judge Kupwara found that the matter pertains to POSCO Act and as such it lacks jurisdiction 2 Bail App No.32/2022 and the case was again transferred to the Court of Principal Sessions Judge Kupwara, resulting in wastage of a considerable period of time. It is further averred that the petitioner had approached the Court of Principal Sessions Judge Kupwara for grant of bail but the learned Sessions Judge without appreciating the statements of the prosecution witnesses rejected the bail application vide his order dated 14.02.2022. It has been contended that the prosecutrix in her statement recorded before the 1st Additional Sessions Judge Kupwara has deposed in favour of the petitioner and as such he is entitled to grant of bail.

3. No reply on behalf of respondents/UT has been filed despite availing a number of opportunities. However, record of the trial court has been summoned.

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 reveal that father of the prosecutrix lodged a report with police on 02.01.2021 alleging therein that on 01.01.2021 the prosecutrix had gone to Kupwara to take examination but she did not return. The complainant started searching for the prosecutrix but could not find her. He suspected that she may have been kidnapped by some unknown person. On the basis of this report the FIR came to be registered and the investigation was set into motion. During the investigation of the case involvement of the petitioner was established 3 Bail App No.32/2022 and the prosecutrix was recovered. She was subjected to medical examination and her statement under Section 164 of Cr.P.C was recorded. It was found that the prosecutrix was aged between 17-18 years. After investigation of the case, offences under Section 376, 363 and Section 3/4 of POCSO Act were established against the petitioner and the charge sheet was laid before the Court of Principal Sessions Judge Kupwara, whereafter it was transferred to the Court of 1st Additional Sessions Judge Kupwara. It seems that after framing of charges against the petitioner, statements of as many as four prosecution witnesses including that of prosecutrix were recorded. However, later on the learned Additional Sessions Judge found that he has no jurisdiction to try the case in view of the fact that offences under POCSO Act being special in nature, are triable by a Special Court only. Accordingly, the challan was referred to the Court of learned Principal Sessions Judge Kupwara which is vested with the powers of a Special Court.

6. 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;
                                   4

                                                      Bail App No.32/2022


              (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.

7. 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 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 5 Bail App No.32/2022 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".

8. Section 29 quoted above raises a presumption of guilt against the accused upon being prosecuted for commission of offences under Sections 3, 5, 7 and 9 of the POCSO Act, unless contrary is proved. against a person who is prosecuted for commission of the said offence, unless contrary is 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.

Bail App No.32/2022

9. In the light of 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.

10. The victim/prosecutrix in her statement recorded under Section 164 of Cr.P.C has deposed that on 01.01.2021 she had gone to get notes from her school as her examination was commencing from 3 rd week of January, 2021. She has stated that when she was still at home, the petitioner called her telephonically and asked her to meet him. She has also stated that she was in touch with the petitioner for about 1 ½ years. She met the petitioner who took her in his vehicle in which two more boys namely Imtiyaz Ahmad and Irshad Ahmad were also travelling. The prosecutrix thought that she would be given lift upto Kupwara where she had to go, but they did not stop the vehicle at Kupwara and took her to Srinagar. She was taken to Pantha Chowk and her mobile cell phone was taken away by the petitioner and his associates. She was taken to a house at Pantha Chowk and confined to a room. The accused were talking to each other that they would kill her. In the meantime, her brother-in-law called on the cell phone of the petitioner whereafter he came over there. She further stated that the petitioner committed rape upon her. The mother and aunt of the petitioner came on spot and they took her with them. She was made to change the clothes and her jewellery was taken away by sister of the petitioner. She also handed over a sum of Rs.50,000/- to the petitioner. She was again taken by the petitioner to the house of her sister where she was again raped.

Bail App No.32/2022

11. From the aforesaid statement of the prosecutrix it is clear that she has implicated the petitioner and she has stated that it is the petitioner who has committed rape upon her. As per the material collected by the Investigating agency during investigation of the case the date of birth of the prosecutrix is 07.04.2003 which means that she was less than 18 years of age at the relevant time.

12. It has been vehemently contended by learned counsel for the petitioner that the prosecutrix has, in her statement recorded before the 1st Additional Sessions Judge Kupwara referred to certain circumstances which would suggest that she was in love with the petitioner and she had joined his company out of her own will and volition. On this ground it is urged that the petitioner deserves to be enlarged on bail.

13. So far as the statement of prosecutrix recorded before the Court of 1st Additional Sessions Judge Kupwara is concerned, the same has been recorded by a Court which had no jurisdiction to do so, inasmuch as it is only a Special Court designated under POCSO Act which is competent to try the offences under POCSO Act. The statement of the prosecutrix has been recorded by a Court that was not competent to record the same, therefore it does not have any evidentiary value in the eyes of law.

14. Even if it is assumed that the prosecutrix has stated certain things favouring the petitioner while recording her statement before the Court of Additional Sessions Judge, the same cannot be taken note of, nor can the statements of other prosecution witnesses recorded before 8 Bail App No.32/2022 the said Court be taken into consideration while deciding the bail application, because the proceedings before the said Court are without jurisdiction. The only material which can be considered by this Court while deciding this bail application is the charge sheet and material annexed thereto. It is pertinent to mention here that the Court having jurisdiction i.e, Court of Principal Sessions Judge Kupwara has yet to frame charges against the petitioner and the trial is yet to commence. Thus at this moment of time it is only the statement of the prosecutrix recorded under Section 164 of Cr.P.C which assumes significance for determining the fate of the bail application.

15. As already noted, Section 29 of the POCSO Act raises a presumption against a person who stands prosecuted for certain offences including the offence under Section 3 of POCSO 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 presumption of innocence operating in favour of the petitioner, in view of the statement made by the prosecutrix before the Court of Additional Sessions Judge Kupwara, does not hold any merit, for the reason that the said statement cannot be taken into consideration. Thus it cannot be stated that there are prima facie grounds to believe that the petitioner has not committed the offence.

16. It has been contended by the learned counsel for the petitioner that there is no fault on the part of the petitioner in delaying the trial. According to the petitioner, the trial has been delayed because of the 9 Bail App No.32/2022 fact that the Courts below have not been able to decide as to which Court has jurisdiction to try the case.

17. It is correct that delay in progression of the trial has occasioned on account of the mistakes committed by the Courts below, as they have not taken a correct decision regarding jurisdiction of the Courts, but then this cannot be the only ground for enlarging the petitioner on bail, particularly when there is prima facie material on record to suggest the involvement of the petitioner in the alleged crime. The petitioner being principal accused involved in a heinous crime of rape of a minor girl, as such, unless the statement of the prosecutrix and her close relatives is recorded by the trial court, there is every apprehension that they may feel threatened and coerced to make statements in favour of the petitioner, if he is released on bail. Keeping in view the tender age of the prosecutrix the apprehension of the prosecution in this regard appears to be justified.

18. Apart from the above, it appears that the petitioner has rushed to this Court immediately after his bail application was rejected by the 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 a view different from the view taken by the Special Court. In the instant case, the bail application of the petitioner was rejected by the Special Court on 14.02.2022 and within a period of 1 ½ months, the petitioner has 10 Bail App No.32/2022 approached this Court by way of this petition without there being any change in the circumstances.

19.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 for grant of bail once the statement of the victim is recorded.

(SANJAY DHAR) JUDGE SRINAGAR 13.07.2022 Sarveeda Nissar Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

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Jammu & Kashmir High Court - Srinagar Bench