Jammu & Kashmir High Court
Rashpal Singh & Anr. vs State Of J&K; on 9 August, 2017
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
B.A. No. 63/2017
Date of decision: 09.08.2017
Rashpal Singh & anr. vs. State of J&K
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge.
Appearing counsel:
For petitioner (s): Mr. G.S.Thakur, Advocate &
Mr. Anil Gupta, Advocate.
For respondent(s): Mr. Sanjeev Padha, GA.
(i) Whether to be reported in
Press, Journal/Media: Yes/No
(ii) Whether to be reported in
Journal/Digest: Yes
1. This is a Bail Application.
2. On a charge-sheet filed in FIR No. 22/2015 of Police Station, Gharota, the petitioners are facing trial for commission of offences under Section 366, 376-D, 506 and 201 RPC and 4/25 Arms Act in the court of learned 3rd Additional Sessions Judge (Fast Track Court), Jammu. Charges against the petitioners have been framed by the trial court on 28.09.2015 and by the time of filing of this application, evidence of some of the prosecution witnesses including the prosecutrix have been recorded. The petitioners are in judicial custody and the learned trial court by its order dated 01.12.2016 has refused to B.A. No. 63/2017 Page 1 of 11 2 release them on bail. The petitioners have, therefore, approached this court.
3. Prosecution case is, precisely, that on 05.03.2015 the prosecutrix, a lady aged 40 years, was on her way to the house of her uncle. When she reached near Village, Ratti Chappdi, the petitioners and another, namely, Balwant Singh reached near her by a Balero vehicle bearing registration No. JK02AJ-3559. They stopped their vehicle and asked the prosecutrix to come inside. On her refusal they forcibly pulled her into the vehicle. They attempted to compel her to submit herself for commission of sexual intercourse by them, brandishing a weapon called 'Khokri'. On her refusal, they drove the vehicle to an isolated place in bushes where they brought out a mat from the vehicle, spread it on the ground, made the prosecutrix to lie on the said mat and committed rape on her one after the other. After committing rape on her, they threatened her with dire consequences if she narrates the incident to anyone and left the scene. The prosecutrix returned to her house and reached there at 7 PM. She narrated the whole story to her mother-in-law and after that they approached Police Station, Gharota, where they reached at 8.30 PM. The SHO of the Police Station was not available at the Police Station and the other police personnel asked her to come on the next day. On the next day, she filed a complaint in the court of B.A. No. 63/2017 Page 2 of 11 3 the Chief Judicial Magistrate, Jammu and the FIR was then registered in terms of Section 156 (3) Cr.P.C.
4. In seeking their release on bail after refusal by the trial court, it is contended by the petitioners that they are old persons of more than 60 years in age, they have been falsely implicated and are languishing in jail from the last more than two years. Petitioner No.2 is a retired army personnel and has retired after rendering valuable service to the Nation in the disciplined force. The mother of petitioner No.1 is suffering from paralysis and brother of petitioner No.2 is a Cancer Patient. It is contended further that the deposition of the prosecutrix recorded by the trial court on its bare reading does not prove that rape has been committed by the petitioners. The doctor, PW Shafika Bano, whose evidence has been recorded on 16.01.2016, has stated before the trial court that nothing suggestive of commission of rape on the prosecutrix was found by her. The evidence of PW-Jagdev Singh is hearsay whereas PWs-Tarsem Singh and Ranjit Singh have not supported the prosecution version. It is contended also that the prosecutrix has been used by a person who was involved in commission of offences under Section 366 and 376 RPC for kidnapping a newly married lady from a marriage hall and is facing trial in the court and petitioner No.2 is a witness in that case.
B.A. No. 63/2017 Page 3 of 11 45. Learned counsel for petitioners, Mr. G.S.Thakur, Advocate, submitted that detention of the petitioners in judicial custody for unreasonable period of more than two years amounts to punishment without proof of offence against them. Learned counsel sought to point out that the deposition of the prosecutrix recorded by the learned trial court does not provide satisfactory evidence to prove the allegation of rape and the same is rather belied when her statement is looked in light of the evidence of the doctor. Learned counsel in support of his submission cited a Supreme Court Judgment in Raja and ors. V. State of Karnataka, (2016)10 SCC 506. Learned counsel for the petitioners submitted further that even the restriction provided under section 497-C Cr.P.C. is not attracted in view of the evidence of the prosecutrix read along with the evidence of the doctor. Learned counsel concluded by submitting that mere involvement in alleged commission of rape cannot deprive a person of his right to be released on bail and his fundamental right to liberty. Learned counsel cited a recent judgment of a learned Single Bench of this court dated 06.02.2017 in B.A. No. 59/2017, Mohd. Iqbal v. State and ors. and sought to point out that the petitioner therein has been released on bail during his trial for commission of offence of rape.
B.A. No. 63/2017 Page 4 of 11 56. The State in its reply has opposed the grant of bail to the petitioners on the grounds that petitioners are involved in commission of heinous offence of gang rape and do not deserve any leniency. The evidence of the prosecutrix directly connects them with the commission of the offence beyond any shadow of doubt. It is contended also that there is likelihood of the petitioners jumping over the bail, if released.
7. Learned Government Advocate, Mr. Sanjeev Padha, urged that at this stage the evidence of the prosecutrix, which directly implicates the petitioners, is to be taken at its face value. Learned counsel submitted further that heinous offence of gang rape has been committed by the petitioners along with another, who has absconded and there is every likelihood of the petitioners jumping over the bail and absconding to escape the rigor of heinous offence committed by them.
8. In Mohd. Iqbal's case (supra), a learned Single Bench of this court has indeed released on bail a police personnel facing trial for commission of offence under section 372 (2) (a) RPC for allegedly having committed rape on a lady, who was in his custody during investigation of a case. The judgment rendered by the learned Bench, however, cannot be applied in the fact situation of the case on hand for the simple reason that in that case one of the grounds B.A. No. 63/2017 Page 5 of 11 6 on which bail was sought was that the prosecutrix had not supported the case of the prosecution in her deposition before the trial court and rather had denied the allegation of rape on her by the accused and stated also that she was compelled to lodge the report against the accused therein by the SDPO and a lady Police Officer. In granting the bail, learned Bench, amongst other reasons, noticed that the prosecutrix has not given statement according to the prosecution story. There is another reason for which the judgment rendered by the learned Single Bench could not have been followed without considering the legal position arising pursuant to the amendment to the Cr.P.C and the RPC by the Jammu and Kashmir Criminal Laws (Amendment) Act, 2013 (for short the Amendment Act of 2013), which it appears has not attracted consideration of the learned Bench in that case.
9. Offence under section 376-D RPC is non-bailable so in terms of sections 497 and 498 Cr.P.C read in juxta position the grant or refusal on bail as in any other non-bailable offence lies in the discretion of the bail/trial court to be exercised after according consideration to well known factors, like the nature and seriousness of the offence, nature of accusation, character of evidence, reasonable apprehension of the accused jumping over the bail or tampering with the prosecution evidence, the B.A. No. 63/2017 Page 6 of 11 7 circumstances which are peculiar to a given case and larger interest of pubic in granting or refusing bail.
10. There is, however, a significant change in law relating to bail in heinous offences including rape, after the enactment of the Amendment Act of 2013 whereby inter alia section 497-C has been inserted in the Cr. P. C. Section 497-C lays down a special provision regarding bail in certain offences against women including offence of rape under section 376 and 376-D RPC. It mandates that bail cannot be granted ex-parte, that is, without giving public prosecutor (State) opportunity of being heard on the application for bail moved on behalf of the accused. In addition by virtue of proviso to section 497-C (1) a restriction has been imposed on the discretion of the court in granting bail to a person accused of an offence covered under this section, if the court on perusal of the case diary or the report made under section 173 Cr.P.C. is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This restriction has been imposed in addition to the other restrictions under the Cr.P.C or any other law for the time being in force. Section 497-C(1) and its proviso are relevant, which I reproduce for ready reference:
"497-C. Special provision regarding bail in certain offences against women etc.-(1) Notwithstanding B.A. No. 63/2017 Page 7 of 11 8 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"
(Underlining by me)
11. The impact of the change in law by virtue of the enactment of section 497-C Cr.P.C. has been considered by this Court in Arjun Katal and Ors. V State of J & K and Ors. 2016 (1) S.L.J.472. Relevant paragraphs from that judgment are extracted:
"14. Proviso to section 497-C Cr.P.C is quite significant but its implication needs to be clearly understood. Careful reading of the proviso would show that the legislature has particularized the situation in which the bail court will not exercise discretion of granting bail in favor of a person accused of offence(s) mentioned in Section 497-C including offence under section 304-B RPC. Whereas the existence of a prima facie case punishable under any one or more of these sections against the accused suffices for framing of charge (s) against him, but that alone will not give rise to the restriction against granting him bail. What more is required for refusing bail to the accused is the existence of reasonable grounds for the court believing that accusation against the accused is 'prima facie true'. Thus, besides making out a prima facie case under any one or more of the sections mentioned in section 397-C, the record of the case should also make out reasonable grounds for believing that the accusation B.A. No. 63/2017 Page 8 of 11 9 against the accused is 'prima facie true'.
15. On a plain reading of section 269 of the Code and proviso to section 497-C(1) more evidence is the dissimilarity between the two provisions rather than a similarity though both the provisions can be read in juxtaposition. Under section 269, court shall frame charge against the accused if the judge is of the opinion that there is ground for presuming that the accused has committed an offence. To say otherwise charge shall be framed if after consideration of record of the case and hearing both sides, court finds prima facie commission of an offence by the accused. On the other hand, proviso to section 497-C does not contemplate prima facie commission of offence by the accused alone but also prima facie truth thereof. It provides that bail shall not be granted if the court is of the opinion that there are reasonable grounds for believing that accusation against accused is 'prima facie true'. Obviously, standard to be applied for refusal of bail is higher than the standard to be applied for framing of charge. To say in juxtaposition, whereas in framing charge court may be of the prima facie opinion that offence has been committed by the accused, for refusing bail court should be of the opinion also that accusation is 'prima facie true'.
12. In order to surpass the rigor of the restriction contemplated under proviso section 497-C Cr.P.C. the main plank of petitioners' case is that the evidence given by the prosecutrix in the trial court read in light of the evidence of the doctor, PW-Dr. Shafika Bano, does not prove commission of offence of rape on the prosecutrix by the petitioners. It is contended that the prosecutrix has falsely implicated them at the behest of a person against whom petitioner No.2 is a prosecution witness in a case under section 366/376 RPC. The said person, however, has not been named in the bail application nor does any B.A. No. 63/2017 Page 9 of 11 10 such suggestion seem to have been made to the prosecutrix in her cross-examination by the defence. It would, however, not be proper to discuss in detail or give any indication about the incriminating value of the testimony of the prosecutrix recorded by the trial court lest that may prejudice the defence of the petitioners at the trial of the case. The least that can be said is that the prosecutrix has deposed in line with the prosecution case and has not exonerated the petitioners directly or by implication. The evidentiary value of the evidence of prosecutrix in a case of rape is too well known and is governed by well settled legal principles (see Aslam v State of U. P. (2014)13 SCC 350 and Hem Raj v State of Haryana, (2014) 2 SCC 395). The judgment in Raja and ors. (supra) relied upon on behalf of the petitioners cannot be applied in a bail application as the same is based on the analysis of the evidence of the prosecutrix at final judgment stage and it is too well known that criteria of appreciating the evidence/material at bail stage is different than the criteria at the final judgment stage.
13. In view of the evidence of the prosecutrix as prosecution witness before the trial court, in my considered view, rigor of proviso to section 497-C is strongly attracted in this case inasmuch as it cannot be said that accusation against the petitioners is not 'prima facie true'.
B.A. No. 63/2017 Page 10 of 11 1114. Viewed, thus, petitioners are not found entitled to release on bail and therefore, this petition is dismissed. Since the petitioners are in custody for the last more than two years and evidence of a good number of prosecution witnesses had been recorded by the time of filing of this application, learned trial court is expected to conclude the trial expeditiously and to take all measures to dispose of the case within four months hereafter. Registry shall immediately send a copy of this judgment to the trial court.
15. Disposed of.
(Janak Raj Kotwal) Judge Jammu:
09.08.2017 Pawan Chopra B.A. No. 63/2017 Page 11 of 11