Shamim Akhter vs State Of J&K; on 29 September, 2018

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Jammu & Kashmir High Court

Shamim Akhter vs State Of J&K; on 29 September, 2018

Bench: Sanjay Kumar Gupta

          HIGH COURT OF JAMMU AND KASHMIR

                    AT JAMMU

BA No. 83/2018
                                       Date of order: 29.09.2018


Shamim Akhter and anr.                    vs                 State of J&K

Coram:

           Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For Petitioner(s)  :      None
For respondent (s) :      Mr. F. A. Natnoo, AAG

i)    Whether to be reported in
      Digest/Journal                           :     Yes/No.
ii)   Whether approved for reporting
      in Press/Media                           :     Yes/No.

1. Investigating Officer has appeared in the Court along with CD File in FIR No.35/2016 dated 22.09.2016 for commission of offences under Sections 341, 326-A and 34 RPC. He states that petitioner No.1 has been arrested and this bail application qua the petitioner No. 1 has become infructuous. So far as petitioner No.2 is concerned, he has not been arrested so far.

2. A preliminary objection has been raised by counsel for the respondent- State that the petition under Section 497-A- Cr. P. C is not maintainable in view of Section 497 C -Cr.P.C.

3. Section 497-C, Cr.P.C reads as under:-

497-C. Special provision regarding bail in certain offences against women etc. -

(1) Notwithstanding anything contained in this Code no person accused of an offence punishable under section 304-B, 326A, 370, 376, 376A, 376C, 376D or 376E of Ranbir Penal Code, shall if in custody, be released on bail or on his own bond unless the Public Prosecutor BA No. 83/2018 Page 1 has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

(2) The restrictions on granting of bail specified in sub-

section (1) shall be in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(3) Nothing in section 497A of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence specified in sub-section (1)."

4. From the bare perusal of the above said Section, it is evident that provisions of Anticipatory Bail are not applicable to the offence under Section 326-A Cr.P.C. In the present case, both he accused have been booked under Section 341, 326-A and 34 RPC. Therefore, the instant application is not maintainable. The same is, accordingly, dismissed.

5. Petitioner No. 2 is at liberty to approach the regular Court for grant of bail.

(Sanjay Kumar Gupta) Judge Jammu 29.09.2018 Bir BA No. 83/2018 Page 2

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