Jammu & Kashmir High Court - Srinagar Bench
Arshad Ahmad Dar vs State Through Sho P/S Chari Sharief on 22 September, 2017
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
B. A. no. 51/2017
MP No. 01/2017
Date of order: 22/09/2017
Arshad Ahmad Dar Vs. State through SHO P/S Chari Sharief
Coram:
Hon'ble Mr. Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr. Molvi Aijaz, Adv.
For the Respondent(s): Mr. M. A. Beigh, AAG
i) Whether to be reported in Press/Media Yes/No ii) Whether to be reported in Digest/Journal Yes/No
1. The petitioner, Arshad Ahmad Dar son of Mushtaq Ahmad Dar resident of Donkal Pathri, Charisharief, Budgam, seeks the indulgence of this court in admitting him to bail for offences under section 376, 363, 342, 506 and 109 RPC on the grounds inter alia that his marriage with the prosecutrix was arranged by their parents. An amount of Rs 60,000 was received by the father of the prosecutrix in the shape of dower. Both he and the prosecutrix filed a petition before the High Court seeking protection which was disposed of at the very threshold by directing the parties to proceed under chapter XIV of the Criminal Procedure Code. The birth certificate issued by the Radiologist attached to that petition demonstrates that the age of the prosecutrix is anywhere from 19 to 21 years. The father of the prosecutrix lodged a report with the police authorities. The police authorities by employing deceit made the father of the prosecutrix to return the amount of dower to the petitioner which has been admitted by him in the statement recorded by the trial court. The police authorities arrested his father. He was released on bail but to his B.A. no. 51/2017 Page 1 of 6 dismay he is still languishing in the jail. He has proceeded to state that he moved an application for the grant of bail in his favour which was rejected by the learned Sessions Judge, Budgam, by order dated 02.3.2017, a copy of which is attached to the petition. He is innocent and has not committed any offence.
2. Heard and considered.
3. It will be profitable to quote here-in-below the relevant excerpts of the order of the trial court dated 02.03.2017 that have a bearing on the decision of the application in hand.
Section 497-C Cr.P.C. creates a bar for a person accused for offence under section 376 RPC to be released on bail, unless the court is in a position to form an opinion that accused is innocent. It is only on fulfilment of the condition stipulated, bail can be considered. The said provision is an exception to general provision as to grant of bail to accused in terms of Section 497 Cr.P.C. In view of the said bar created under section 497-C Cr.P.C., especially for the offence under section 376 RPC, it is mandatory for the court to treat the provision in strict manner even if it affects the accused harshly.
It is settled preposition of law that evidence of prosecution can be sifted at the time of considering the bail application, for the limited purpose of ascertaining the over view as to commission of offences by the accused. Elaborate analysis of the evidence cannot be made as it is in the domain of final outcome of the trial. In this case also the evidence of prosecution is sifted for the limited purpose of arriving at prima facie conclusion as to the involvement of the accused in offence under section 376 RPC.
Highlighting issue in this case is, that the prosecutrix is reported to have been minor at the time of commission of offence. In this regard accused is facing charge under B.A. no. 51/2017 Page 2 of 6 section 363 RPC, apart from the offence under section 376 RPC. Therefore, that aspect of the matter is also to be kept into consideration while looking to the aspect pertaining to the offence under section 376 RPC. Minority of the prosecutrix at the time of commission of offence has crucial bearing so far as offence under section 376 RPC is concerned. Evidence on record, especially the age certificate collected by the I.O. from the concerned school, also points out to the minority of the prosecutrix at the time of commission of offence.
It has been projected by the applicant/accused that there had been a love affair between the accused and the prosecutrix and they had eloped out of their own choice, in view of the resistance offered by the family of the prosecutrix against the marriage between the two. It is also projected by the learned counsel that the prosecutrix and the accused had solemnized marriage and also they had sought protection by filing a petition in the Hon'ble High Court of J&K. Even if these aspects are presumed to be correct, it would not make difference as far as offence under section 376 RPC is concerned. There is categorical assertion of the prosecutrix in her statement under section 164-A Cr.P.C. and in her testimony recorded in this court that she had been subjected to sexual intercourse by the accused. If that be even with the consent of the prosecutrix, it would amount to the offence of rape in view of the minority of the prosecutrix at the relevant time. Her consent would not be material to enter into sexual intercourse. Prima facie, the material available on record, especially the statement of the prosecutrix recorded in this court, is suggestive of commission of offence under section 376 RPC by the applicant/accused.
There is nothing substantial available on the case record which would prima facie establish that accused has not committed the offence under section 376 RPC. Therefore the B.A. no. 51/2017 Page 3 of 6 applicant/accused has not been able to overcome the bar created under section 497-C Cr.P.C. In that view of the matter, bar is clearly attracted as to grant of bail to the applicant/accused.
For the reasons stated above, this application is found to be meritless as such is rejected. Application shall form part of the main case record.
4. From a bare perusal of the material attached to the petition what gets revealed is that a full-fledged trial in the case for an alleged offence of rape and other offences has been put in motion against the petitioner by the court of learned Principal District and Sessions Judge, Budgam. The order of the learned Sessions Judge, Budgam, is lucid, luminous and clear. It does not call for any interference. It is based on the canons of law and the facts involved in the case. The prosecutrix apparently was a minor on the date she is alleged to have been ravished/raped by the petitioner. The age of the prosecutrix on the date of the commission of the offence is stated to be approximately 14 years in the report laid before the court in terms of section 173 Cr. P.C. and her statement recorded by the court knocks the bottom out of the contention of the learned counsel for the petitioner that she was a major on the date of occurrence.
5. The baseline of the argument of the learned counsel for the petitioner is that from the evidence recorded by the trial court, an offence under section 376 RPC is not made out against the petitioner. This argument appears to be a spurious one. The evidence of the prosecution can be sifted, weighed and analyzed at the final outcome of the trial and doing so is within the domain and power of the trial court. Elaborate documentations is not required to be made in the petitions involving the question whether a particular person should or should not be admitted to bail. Therefore, looking at the evidence of the prosecution on its face B.A. no. 51/2017 Page 4 of 6 value, particularly the statement of the prosecutrix, a copy of which has been attached to the file by the petitioner himself, the prima facie involvement of the petitioner in the commission of the offence under section 376 RPC cannot be ruled out when the same is tested on the strength of the age of the prosecutrix. Her consent in entering into any sexual intercourse under the circumstances, even if there be any, is immaterial and inconsequential. Abraham Cowley, the English poet, once gave vent to his feelings about man. He said: "Man is too near all kinds of beasts, a fawning dog, a roaring lion, a thieving fox, a robbing wolf, a dissembling crocodile, a treacherous decoy, and a rapacious vulture." When a girl falls prey to the human vulture, he accomplishes the most sinister act that he is capable to perform. There are no limits to this bestiality when he is in the grip of inhuman folly.
6. It needs must be said that the learned counsel for the petitioner has taken refuge under a catena of judgments delivered by the Hon'ble Supreme Court and the High Courts. These are reported in 2015 4 Crimes (SC) 45; AIR 1978 SC 1753; AIR 1980 SC 1252; AIR 2003 SC 3365; AIR 2005 SC 203 and all these judgments have been rendered in appeals after the culmination of the trial in which the accused was/were either acquitted or convicted. These judgments can be relied upon and pressed into service by the learned counsel for the petitioner at a time when final arguments are heard in the matter by the trial court so that the case of the prosecution can be tested on the parameters of the law laid down therein and not at a premature stage like the present one when the trial of the case is going on before the court of learned Sessions Judge at Budgam.
7. The learned Sessions Judge, Budgam, has tested the application of the petitioner on the touchstone of section 497-C of Cr. P.C., which creates a bar and operates as an impediment in the matter of releasing a person on B.A. no. 51/2017 Page 5 of 6 bail under section 376 RPC with a further rider that it is only when the court is of the opinion that the accused is innocent and has not committed the offence that his application can be considered. This provision is an exception to the maxims of the law of bails that propound "bail and not jail" or "that grant of bail is the rule and its refusal is an exception." The courts are duty bound to test the case of a person for releasing him on bail in an offence under section 376 RPC rigorously on the scales of section 497-C Cr. P.C., irrespective of the fact that it affects him adversely.
8. The cumulative effect of all that has been said and done above, is that the conclusions derived by the learned Sessions Judge in the order cited above are based on firm foundations of law. There has been no change in the circumstances of the case from the date of passing of the order in the earlier bail application till such time that the application has been moved before this court. Accordingly the application for admitting the petitioner to bail is rejected and shall be consigned to records after its due completion. However, the learned trial court is requested to bring the case to its logical conclusion with utmost dispatch taking into consideration the fact that the accused is in the jail.
(M. K. Hanjura) Judge Srinagar 22/09/2017 N Ahmad B.A. no. 51/2017 Page 6 of 6