Jammu & Kashmir High Court
Subash Singh vs . State Of J&K on 12 April, 2019
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU & KASHMIR
AT JAMMU
CRMC No. 814/2018 c/w
BA No. 216/2018
Date of order: 12.04.2019
Subash Singh Vs. State of J&K
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For petitioner (s) : Mr. Ajay Vaid, Advocate
For respondent(s) : Mr. K.D.S. Kotwal, Dy. AG
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
1. By this common judgment, petition under Section 561-A Cr.P.C and bail application filed by the petitioner are being disposed of as both the matters have arisen out of an order dated 17.12.2018, passed by learned Sessions Judge, Samba by virtue of which he has cancelled the interim bail granted in favour of the petitioner on 17.10.2017.
CRMC No. 814/20182. In this petition, petitioner states that he is innocent and law abiding citizen and has not committed any offence; that Police of Police Station, Vijaypur has registered a false and fabricated case against the petitioner under Section 376/109 RPC under FIR No.01/2016 and offence under Section 376 RPC was registered against the co- accused Amit Singh. The petitioner is facing trial before learned Sessions Judge Samba. The allegations against the accused are that on 31.12.2012 the Prosecutrix Vishali Devi along with her fiancé Sh. Ashwani Kumar had gone to Ashramat at Ranjari at about 7:30 PM, the accused person took away the victim and her fiancé, and CRMC No.814/2018 & BA No.216/2018 Page 1 of 7 the co-accused Amit Singh committed rape upon the Prosecutrix, upon which the Amit Singh was charge sheeted under Section 376 RPC and the allegations against the petitioner was that rape has been committed at the instigation of the petitioner. The statement of prosecutrix was recorded under Section 164-A Cr.P.C during investigation, wherein she has stated that petitioner has not committed rape upon her; that during the course of trial the statement of Prosecutrix was also recorded wherein she changed her version and stated that it was petitioner, who committed rape upon her and Amit Singh, other co-accused, has not committed rape upon her; that during the pendency of the proceedings on 17.10.2017, petitioner was granted interim bail by the court below, but on 17.12.2018 court below has cancelled the bail on the ground that petitioner is being involved in offence under section 376 RPC and provision of Section 497 Cr.P.C does not allow the petitioner to be enlarged on bail, so his bail was cancelled and he was directed to surrender in Sub Jail, Hiranagar within one week. The petitioner has challenged the impugned order on the ground that once bail is granted, it cannot be cancelled; that trial court has virtually reviewed its earlier order for grant of bail; that victim has contradicted her statement during trial; that trial court has not given reasons for setting aside earlier order for grant of bail.
BA No. 216/20183. In this bail application, similar grounds have been taken.
4. Objections have been filed by the State in the Bail Application, wherein it has been stated that the petitioner /accused is involved in a heinous and serious offence of rape and the charge has been framed by the court of learned Principal Sessions Judge, Samba. It is further stated that no case is made out for grant of bail in the present application and the same is required to be rejected; that the CRMC No.814/2018 & BA No.216/2018 Page 2 of 7 petitioner/accused Subash Singh along with co-accused Amit Singh has been sent to trial by the police of Police Station Vijaypur in crime no.01/2016 for the commission of offences punishable under Sections 376/109 RPC with the allegations that on 31.12.2015, the victim along with her fiancé Ashwani Kumar had gone to an Ashram at Ranjri and at about: 7:30 PM, the accused persons took away the victim and her fiancé Ashwani Kumar, and the co-accused Amit Singh committed rape upon the victim at the instigation of the petitioner-accused. On conclusion of the investigation, the police filed charge sheet against the accused Amit Singh for the commission of offences under Section 376 RPC and against the petitioner/accused Subash Singh for the commission of offence under Sections 376/ 109 RPC. Accordingly, the charge was framed against the aforesaid accused persons and the trial commenced. During the course of trial, victim appeared in the court and her statement was recorded. During the course of examination, the victim deposed that the petitioner/accused Subash Singh committed rape upon her and not the accused Amit Singh. She has also stated in her statement recorded under Section 164-A Cr.P.C. that she named Amit Singh to have committed rape upon her because she thought Subash Singh to be Amit Singh. After the deposition of the victim, the charge against the petitioner/accused Subash Singh was amended and he was charged for the commission of offences under Section 376 RPC. The petitioner-accused was admitted to interim bail on 17.10.2017 and that interim bail continued till bail application was rejected by the trial court. It has further been alleged that the accused petitioner has been charge sheeted for the commission of offences under Section 376 RPC. The statements of most of the material witnesses including the victim have been recorded and prime facie accusation against the petitioner-accused CRMC No.814/2018 & BA No.216/2018 Page 3 of 7 is true. It has been further stated that in these circumstances if the bail is granted to the petitioner-accused the same will cause serious prejudice to the prosecution case. Moreover, the petitioner cannot claim grant of bail as a matter of right and there is a clear bar under Section 497-C Cr.P.C for grant of bail in such heinous offences. It has been further stated that the discretionary power to grant bail always depends upon case to case and nature of offences leveled against the accused. The trial court after due consideration of the material has rightly rejected the bail application of the petitioner. Further, the petitioner/accused was on interim bail and the bail application was pending; that the allegations leveled against the petitioner are of serious nature and has shaken the confidence of the society, as such the petitioner does not deserve any concession for grant of bail in his favour. It has been further stated that the law is well settled by the courts that in such heinous offences the interest of the society and public at large is more important than the interest of an individual. By granting any relief to the petitioner/accused will shake the faith of the public and confidence which is not permissible under law; therefore, without completing the trial before the trial court, it shall not be in the interest of justice to grant bail to the petitioner. The law is also settled by the courts that when a prima facie case or reasonable ground is made out to believe that the accused has committed the offence, the bail in non-bailable offences shall not be granted.
5. I have considered the rival contentions of learned counsel for the parties and perused the material on record. Petitioner has relied on N.R. Mon Vs. Md. Nasimuddin, 2008 (3) SCC (Cri) 29.
6. I have given my thoughtful consideration to whole aspects of the matter. From bare perusal of petitions, it is evident that petitioner firstly filed petition for bail before this court; when only notice was CRMC No.814/2018 & BA No.216/2018 Page 4 of 7 issued in the said petition, he has filed petition under section 561-A Cr.P.C also on same grounds; Instead of surrendering before jail or court below in terms of impugned order, petitioner has filed the present petitions.
7. Section 497-C(1) Cr.P.C. and its proviso are relevant, which is reproduced for ready reference:
"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 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 bail specified in sub section (1) shall be in addition to the restriction under the code or any other law for time being in force on granting of bail."
3.Nothing in Section 497-A of 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)
8. From bare perusal of this section, it is evident that restrictions provided in this section are in addition to general restrictions imposed in section 497 Cr.P.C, for grant of bail in non bailable offences. From bare perusal of statement of victim recorded during trial, it is evident that she has clearly stated that petitioner has committed rape on her; so at this stage there is prima facie evidence against him; petitioner has taken plea that during investigation and in her statement recorded under section 164-A Cr.P.C. before magistrate, victim has named another accused Amit Singh, who has CRMC No.814/2018 & BA No.216/2018 Page 5 of 7 committed rape and in her statement recorded during trial she has stated that Amit Singh has not committed rape but in fact it is petitioner who has committed rape, so there is a vital contradiction, which makes whole case doubtful and petitioner is entitled for bail. I have considered this aspect of the matter also. It is fact that victim in her statement recorded under section 164-A Cr.P.C has named that petitioner and one Amit singh on 31.12.2012 took away her and her fiancé at about 7.30.pm, but accused Amit Singh committed rape on her on instigation of present petitioner; but before trial court she has said that it is petitioner-Subash Singh, who has committed the rape; she has further clarified that she gave the name of Amit Singh during investigation as she was thinking that Subash Singh was Amit Singh. So this ground is not tenable. Further statement recorded during investigation or under section 164-A Cr.P.C are not substantial piece of evidence; only statement recorded during trial is substantial piece of evidence.
9. Next argument that once bail granted cannot be cancelled is also not tenable, because petitioner was granted bail during trial initially under section 376/109 RPC; but after victim gave statement that it was petitioner who committed rape, the charge was amended to only under section 376 RPC, which attracts rigour of section 497-C Cr.P.C, so court below was right in cancelling the interim bail granted to petitioner. Law is also clear that interim bail is always subject to alteration, modification or cancellation. Further, it is admitted fact that the petitioner has not surrendered before Jail or before court below, so he is seeking bail in his anticipation of arrest, which otherwise is barred in terms of section 497-C (3) of Cr.P.C. I have gone through the law cited by counsel for petitioner; it is not applicable in present set of case. The cases of rape, gang rape and digital rape are on increase and perpetrators of this inhuman and CRMC No.814/2018 & BA No.216/2018 Page 6 of 7 brutal crime are worse than even the beasts and deserve to be dealt with a heavy hand. The entire country is seriously debating this issue and there are proposals coming forth that death penalty should be the answer to deal with the accused involved in such heinous crime. Every case has different facts; some of the recent rape cases have been so horrifying that the entire nation protested to condemn these barbaric acts and raised a voice to curb the said menace by inflicting more severe punishment. The Government also promptly appointed Justice J. S. Verma Committee to review laws on crimes against women, which recommended certain dramatic changes in the Criminal law relating to offences against women, and accordingly various amendments have been made in law on the subject.
10. In view of above discussion, I am of the view that both petitions are devoid of merits, hence are dismissed. However, petitioner may file fresh application for bail before trial court after surrendering himself before court below.
( Sanjay Kumar Gupta ) Judge Jammu:
12.04.2019 Bir* NARINDER KUMAR SHARMA 2019.04.12 14:28 I attest to the accuracy and integrity of this document CRMC No.814/2018 & BA No.216/2018 Page 7 of 7