Jammu & Kashmir High Court
Pronounced On: 17.10.2025 vs Union Territory Of Jammu & on 17 October, 2025
2025:JKLHC-JMU:3485
Sr. No. 05
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:-Bail App No. 183/2025
CrlM No. 1161/2025
Pronounced on: 17.10.2025
Uploaded on: 20.10.2025
Fareed Ahmed,
Aged 44 years,
S/O Sh. Shabir Ahmed R/O Kalaban
Tehsil Mendhar, District Poonch,
through his wife Ruksana Kouser,
age 39 years, W/O Fareed Ahmed
R/O Kalaban Tehsil Mendhar,
District Poonch .... Petitioner(s)
Through:- Mr. S. S. Ahmed, Advocate&
Mr. Nitin Bhasin, Advocate.
Mr. Tayyab Javed Qureshi, Advocate.
V/s
1. Union Territory of Jammu &
Kashmir
Th. SHO Police Station
Mendhar, District Poonch.
2. The Superintendent, District
Jail, Poonch.
3. Ms X
(name withheld) W/O Mohd.
Arfeen R/O Kalaban, Mendhar,
Poonch. .....Respondent(s)
Through:- Mr. Eishan Dadichi, GA for R-1&2.
None for respondent No. 3.
CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
ORDER(ORAL)
1. By invoking the provisions of the Bhartiya Nagarik Suraksha Sanhita (BNSS), the petitioner seeks indulgence of this Court Bail App No. 183/2025 Page 1 of 13 2025:JKLHC-JMU:3485 for the grant of bail in connection with FIR No. 50/2021 dated 21.02.2021 registered under Sections 376 and 109 of the IPC at Police Station, Mendhar. The petitioner submits that although the FIR was registered on 21.02.2021, the investigation lingered for over four years, and despite there being a specific order passed by this Court restraining the Investigating Agency from filing the charge-sheet without prior permission, the same was filed before the trial court on 03.02.2025. It is contended that the charge-sheet is based on false allegations levelled by respondent No. 3, wherein she alleged that on 02.02.2021, while she was at her home, the petitioner came to her residence, showed her nude photographs and threatened to make them viral on social media, and that on 05.02.2021, he again visited her house, outraged her modesty, threw her on the bed, and committed forcible sexual intercourse repeatedly against her consent. It is further alleged that the petitioner had consumed some medicine and recorded the act on video, threatening to circulate the same if she disclosed the incident to anyone.
2. The petitioner asserts that he was not present at the place of occurrence on the alleged dates and had, in fact, been staying with his relatives till 06.02.2021. He further avers that he is an employee of the Education Department and has been falsely implicated due to previous enmity. It is stated that Bail App No. 183/2025 Page 2 of 13 2025:JKLHC-JMU:3485 during the DDC Elections held in December 2020, the prosecutrix acted as a polling agent for one Zeshan Rana, against whose supporters the petitioner had lodged FIR No. 283/2020 dated 20.12.2020 under Sections 323, 382, and 147 IPC for indulging in proxy voting. As a counterblast, the prosecutrix filed FIR No. 288/2020 under Sections 354 and 342 IPC. Thereafter, when the petitioner discovered that the prosecutrix's husband had secured employment in the IRP as a constable based on fake qualification certificates, a complaint was lodged through the petitioner's brother before the SSP, Poonch, resulting in departmental action and discharge of the prosecutrix's husband from service. Aggrieved by this, the prosecutrix fabricated the incidents of 02.02.2021 and 05.02.2021, despite the petitioner being at Surankote and not at Poonch during that period. The petitioner contends that even during the initial enquiry, the police found that he was not seen anywhere near the scene of the occurrence on the relevant dates.
3. It is further pleaded that the petitioner had approached this Court through CRM(M) No. 832/2024 seeking quashment of the FIR, in which notice was issued to the respondents, and this Court directed the investigating agency not to file the charge-sheet without prior permission. However, in blatant violation of the said order, the petitioner was arrested on Bail App No. 183/2025 Page 3 of 13 2025:JKLHC-JMU:3485 29.01.2025 despite there being no incriminating material against him. The petitioner maintains his innocence and asserts that the case has been fabricated out of political rivalry and personal vendetta. It is also submitted that the medical evidence does not support the prosecution's case, as the report shows the presence of dead spermatozoa suggestive of sexual intercourse within five days preceding the examination, whereas the alleged incident occurred sixteen days before the registration of the FIR, thus falsifying the prosecutrix's version. It is contended that the trial court rejected the bail application on untenable grounds, ignoring the material suggesting false implication.
4. The official respondents, in their response, state that the charge-sheet has been filed for offences under Sections 376 and 109 IPC, and that during investigation it was found that on 02.02.2021 at about 9:30 P.M., the petitioner entered the complainant's house at Kalaban, covered her mouth, and committed forcible sexual intercourse, which he repeated on 05.02.2021. It is alleged that the petitioner also made a video of the act and demanded ₹1,00,000 from the prosecutrix, threatening to circulate the video if she failed to pay. It is further stated that a co-accused was sent by the petitioner to collect the money, and on 13.02.2021, the prosecutrix, out of fear of defamation, paid ₹50,000 to him. The respondents Bail App No. 183/2025 Page 4 of 13 2025:JKLHC-JMU:3485 acknowledge the existence of cross FIRs between the parties bearing Nos. 283/2020 and 288/2020. During the investigation, the petitioner's mobile phone was seized, and call detail records as well as tower location data confirmed that on 02.02.2021, the petitioner was at Jammu with his ailing father, and on 05.02.2021, he was at Surankote with his relatives, where he remained till 06.02.2021. The records also indicate his visit to the residence of one Hakeem at village Daleera, Poonch, and later to Ziyarat Sharief of Baba Sain Miran Sahib Gontariyan Shahpur. It is stated that on 06.03.2021, the petitioner complained of abdominal pain and was referred from SDH Mendhar to GMCH Rajouri and subsequently to GMCH Jammu for further treatment. Despite these findings, the SHO Police Station Mendhar ultimately filed the charge-sheet against the petitioner.
5. Ld. counsel for the respondents vehemently argued that the defence projected by the petitioner is wholly without any legal or factual foundation and rests upon falsehood. It was contended that the tower location details relied upon by the petitioner had been manipulated to create a false alibi. According to him, the prosecutrix has made a categorical and sworn statement before the learned Magistrate, which prima facie demonstrates the involvement of the petitioner in the commission of sexual assault on two occasions, i.e., on Bail App No. 183/2025 Page 5 of 13 2025:JKLHC-JMU:3485 02.02.2021 and 05.02.2021. Although there is a slight delay in lodging the FIR, the same stands sufficiently explained, as the prosecutrix was under a constant apprehension that the petitioner may upload her nude videos on social media platforms, thereby subjecting her to humiliation and mental agony.
6. Per contra, learned counsel appearing for the petitioner submitted that despite the alleged commission of an offence, the petitioner had throughout cooperated with the investigating agency and had joined the investigation and enquiry on multiple occasions until his arrest in the year 2025. It is urged that at no point in time was the petitioner served with any grounds of arrest, nor was there any necessity for the police agency to arrest him, particularly when the investigation had already concluded and the charge- sheet was about to be filed. The arrest of the petitioner, therefore, was not only unwarranted but also in violation of the directions issued by the competent court. Learned counsel placed reliance upon the judgment of the Hon'ble Supreme Court in Siddharth vs. State of Uttar Pradesh and another, reported in (2022) 1 SCC 676, to contend that there exists no justification for arresting an accused once the investigation has been completed and the accused has duly cooperated with the process of law. It is further submitted that the petitioner Bail App No. 183/2025 Page 6 of 13 2025:JKLHC-JMU:3485 was not present at or around the scene of occurrence, but the subsequent Investigating Officer, ignoring the findings recorded by his predecessor, proceeded to file the charge- sheet under local political influence. It is alleged that one Zeshan Rana, wielding considerable political clout in the area after the change of government in the Union Territory of Jammu and Kashmir, manipulated the proceedings, thereby falsely implicating the petitioner to wreak personal vengeance. The case set up against the petitioner, therefore, is a concocted story bereft of truth and motivated by extraneous considerations.
7. The record further reveals that the prosecutrix has been impleaded as respondent No. 3 in the present petition and, in terms of the order dated 30.09.2025, was required to file her response. However, except for the reply submitted by the official respondents, the prosecutrix, despite having engaged counsel and having moved an application for her impleadment, chose not to file any counter-affidavit to rebut the averments made by the petitioner, particularly the plea of alibi raised in the application.
8. I have heard learned counsel for the parties at length and carefully perused the record made available for my examination.
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9. In Siddharth vs. State of Uttar Pradesh and another (2022) 1 SCC 676, the Hon'ble Supreme Court dealt with a situation where the accused was arrested immediately before the filing of the charge-sheet, after seven years of registration of the FIR. The Apex Court, while deprecating such practice, observed in paragraphs 12 and 13 as under:
"12. In the present case, when the applicant has joined the investigation, the investigation has been completed, and he has been roped in after seven years of registration of the FIR, we can think of no reason why, at this stage, he must be arrested before the charge-sheet is taken on record. We may note that the learned counsel for the appellant has already stated before us that on summons being issued, the appellant will put an appearance before the trial court.
13. We accordingly set aside the impugned order and allow the appeal in terms aforesaid, leaving the parties to bear their own costs."
10. Similarly, in Satender Kumar Antil vs. Central Bureau of Investigation and others, AIR 2022 SC 3386, the Hon'ble Supreme Court reiterated the well-settled principle that "bail is the rule and jail is the exception." This proposition has been consistently recognised in a catena of decisions, including Nikesh Tarachand Shah vs. Union of India, (2018) 11 SCC 1 and Sanjay Chandra vs. CBI, (2012) 1 SCC 40. The Court observed that though the Code of Criminal Procedure empowers a police officer to arrest a person accused of a cognizable and non-bailable offence without a warrant, such power must be exercised with Bail App No. 183/2025 Page 8 of 13 2025:JKLHC-JMU:3485 circumspection and only when necessary for investigation. The police officer is required to record his reasons in writing while making the arrest and must be satisfied that the same is essential for furtherance of the investigation. The principal purpose of bail, as observed by the Court, is to secure the attendance of the accused during trial; the accused remains in custody not by way of punishment but merely to ensure the due course of justice. It was further held that Section 439 Cr.P.C. confers a wide discretionary power upon the High Court or the Court of Sessions to grant bail, and such power must be exercised in a judicious and balanced manner, guided by the settled principles governing the grant or denial of bail.
11. The consistent legal position that has evolved through judicial interpretation is that it is not essential in every case involving a cognizable and non-bailable offence that the accused must be taken into custody at the time of filing of the charge-sheet or final report. The occasion to arrest an accused during investigation arises only when custodial interrogation becomes necessary, or where the offence is of a heinous nature, or there exists a likelihood of the accused influencing witnesses or absconding from justice. Merely because an arrest is lawful does not imply that it must be made; the authority to arrest and the justification to exercise such authority are distinct concepts, and discretion must be Bail App No. 183/2025 Page 9 of 13 2025:JKLHC-JMU:3485 judiciously exercised to prevent arbitrary or unnecessary detention.
12. In the present case, the alleged incidents, as per the prosecution, took place on 02.02.2021 and 05.02.2021, and the petitioner has been accused of committing serious offences affecting the privacy of the prosecutrix. Prima facie, such allegations would ordinarily dissuade this Court from granting the concession of bail, as the petitioner stands accused of sexually exploiting the prosecutrix, recording the sexual act, and subsequently demanding money under the threat of making the videos public. However, the case also presents a counter-narrative suggesting that the parties were embroiled in previous disputes, including cross FIRs registered around the time of the DDC elections. It is alleged that the prosecutrix was a polling agent of one Zeshan Rana, and during that period, a scuffle had taken place between the parties, resulting in the registration of cross cases. It has further been brought to notice that the petitioner's brother had filed a complaint against the husband of the prosecutrix, alleging that he had secured his government appointment based on a forged certificate, which ultimately led to his removal from service. The defence has also placed reliance on material indicating that the petitioner was not present at Bail App No. 183/2025 Page 10 of 13 2025:JKLHC-JMU:3485 the scene of the occurrence on the relevant dates, a fact which finds partial corroboration in the investigation record itself.
13. It is not in dispute that the prosecutrix was a major, residing with her husband, who was employed in the Police Department. Notably, despite the alleged incidents having occurred on 02.02.2021 and 05.02.2021, the FIR came to be lodged only on 21.02.2021, indicating a considerable delay in reporting the matter. It is also borne from record that the petitioner had earlier approached this Court by way of quashment proceedings, in which, vide order dated 12.11.2024, this Court had permitted continuation of investigation but had directed that no charge-sheet be filed without obtaining prior permission. Despite this, the investigating agency proceeded to file the charge-sheet, prompting the petitioner to initiate disobedience proceedings against respondent No. 1 for alleged wilful violation of the said order. It is also not denied that the petitioner had been cooperating with the investigation throughout, had remained available within the town, and that at no stage during the investigation did the police consider it necessary to arrest him. These circumstances lend weight to the petitioner's assertion that his subsequent arrest was unwarranted and influenced by extraneous considerations.
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14. Be that as it may, without delving into the merits of the rival versions, this Court observes that the alleged incident pertains to the year 2021 and the investigation has now culminated in the filing of the charge-sheet. The plea of alibi raised by the petitioner, as well as the version of the prosecution, are matters that can only be adjudicated upon during trial. In such circumstances, the continued incarceration of the petitioner would serve no useful purpose. The presence of cross- allegations and the material indicating pre-existing animosity between the parties creates a plausible possibility of false implication, which cannot be ruled out at this stage.
15. At the cost of repetition, it may be observed that had there not been a cross-version supported by verifiable material, this Court would have been reluctant to grant indulgence in favour of the petitioner. However, in light of the facts and circumstances discussed above, and there being substantial indications of innocence in favour of the petitioner, the denial of bail would amount to pre-trial punishment and an unwarranted curtailment of liberty. Accordingly, the application is allowed, and the petitioner is ordered to be released from custody, subject to the following conditions:
i. The petitioner shall furnish two solvent sureties in the amount of ₹50,000/- each and a personal bond of like amount to the satisfaction of the trial court. Bail App No. 183/2025 Page 12 of 13
2025:JKLHC-JMU:3485 ii. The petitioner shall not, during the period of bail, make any attempt to contact, directly or indirectly, the prosecutrix or any of the prosecution witnesses. iii. The petitioner shall appear before the trial court on each date of hearing unless exempted by the Court for justifiable reasons.
iv. The petitioner shall not leave the territorial jurisdiction of the Union Territory of Jammu and Kashmir without prior permission of the trial court.
16. Nothing observed on merits herein above shall influence the trial court in its final endeavour in disposal of the main case.
(SANJAY PARIHAR) JUDGE JAMMU 17.10.2025 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. Bail App No. 183/2025 Page 13 of 13