Jammu & Kashmir High Court - Srinagar Bench
Abdul Qayoom Rather vs Ut Of J&K Through Sho P/S on 6 April, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 04.04.2022
Pronounced on:06.04.2022
Bail App No.09/2022
ABDUL QAYOOM RATHER ... PETITIONER(S)
Through: - Mr. Bhat Fayaz, Advocate.
Vs.
UT OF J&K THROUGH SHO P/S
ACHABAL ...RESPONDENT(S)
Through: - Mr. M. A. Chashoo, AAG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner is seeking bail, in connection with a case arising out of FIR No.08/2021 for offences under Section 354, 354-A, 451, 506, 376, 511 IPC registered with Police Station, Achabal Anantnag.
2) Before coming to the grounds urged in the bail application, it would be apt to refer to the prosecution case as emanates from the charge sheet laid before the trial court.
3) On 09.10.2021, the prosecutrix lodged a written report before the police of Police Station, Achabal, alleging therein that the petitioner has abused her once again and that when she was coming back to her home after fetching bread, the petitioner abused her and used foul language. On the next day also, the petitioner wrongfully restrained her and threatened to kill her. On the basis of this report, police registered FIR No.108/2021 2 Bail App No.09/2022 for offence u/s 341, 306 IPC and started investigation of the case. The statement of the prosecutrix under Section 161 Cr. P. C was recorded, on the basis of which offences under Section 354, 354-A, and 451 IPC were added to the case.
4) It seems that statement of the prosecutrix was also recoded under Section 164 Cr. P. C before the Judicial Magistrate, 1st Class, Shangus. In the said statement, the prosecutrix has deposed that on 08.10.2021 at about 9.30 AM, when she was all alone in her house, the petitioner entered her house and told her that he has something to tell her. She further stated that the petitioner caught hold of her hand and when she raised an alarm, the petitioner gagged her mouth and touched private parts of her body. She further stated that she was laid on the ground by the petitioner who sat on top of her and touched private part of her body and tried to commit rape upon her. The prosecutrix went on to state that she hit the petitioner with a broom and escaped from his clutches. According to prosecutrix, she called her sister and when she came on spot, the petitioner offered her Rs.10,000/ and apologized to her but she refused to take the money, whereafter the petitioner gave a beating to her on her shoulder with a broom. She further stated that she went to the hospital and also submitted an application with the police but the same was not entertained by the police. On the next day also, when the prosecutrix went out of her house to fetch bread, the petitioner wrongfully restrained her and used foul language against her. Further the petitioner threatened to kidnap her. The 3 Bail App No.09/2022 prosecutrix further alleged that the petitioner is a political worker and he wants to get her ration card cancelled.
5) After investigation of the case, offences under Section 354, 354-A, 451, 506, 376, 511 IPC were found established against the petitioner and, accordingly, the charge sheet was laid before the learned trial court. It appears that the trial court vide its order dated 29.12.2021, has rejected the bail application of the petitioner by observing that the offence alleged to have been committed by the petitioner is against the society and is having far reaching consequences.
6) In the application it is contended that the FIR and the charge sheet emanating there from is absolutely false. It is further contended that the allegations made in the report lodged by the prosecutrix, on the basis of which the FIR was lodged, and the allegations made by her in her statement recorded under Section 164 Cr. P. C are not on similar lines, inasmuch as the prosecutrix, while making her statement under Section 164 Cr. P. C, has made material improvements, which clearly goes on to show that the prosecutrix has falsely implicated the petitioner due to personal grudge. It is also contended that the petitioner is prepared to abide by all the conditions in case he is enlarged on bail.
7) The application has been resisted by the respondent by filing a reply thereto. In the reply, it has been submitted that initially FIR for offences under Section 341, 506 IPC was registered but later on during the course of investigation, on the basis of the statements made by the prosecutrix under Section 161 Cr. P. C and under Section 164 Cr. P. C, the offences 4 Bail App No.09/2022 under Section 451, 354, 354-A, 376 and 511 IPC were added and the challan was filed before the Court on 01.12.2021
8) I have heard learned counsel for the parties and perused the material on record.
9) In the instant case, learned Additional Sessions Judge, Anantnag, has rejected the bail petition of the petitioner. The question that arises for consideration is whether or not successive bail applications will lie before this Court. The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application. In this behalf, it will be profitable to quote the following observations of the Supreme Court in the case titled Gurcharan Singh & Ors vs State (Delhi Administration), AIR 1978 SC 179:
"It is significant to note that under Section 397, Cr. P. C of the new Code while the High Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under sub-section (3) of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to revision when the authorities have concurrent powers. Similar was the position under Section 435(4), Cr. P. C of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although, under Section 435(1) Cr. P. C of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court's jurisdiction in revision was left untouched.
There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under Section 439(2), Cr. P. C to cancel 5 Bail App No.09/2022 bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain the application under Section 439(2), Cr. P. C for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr Mukherjee to the contrary.
10) Relying upon the aforesaid observations of the Supreme Court, the High Court of Bombay in the case titled Devi Das Raghu Nath Naik v. State,(Crimes Volume 3 1987 363), has observed as under:
"The above view of the learned Single Judge of the Kerala High Court appears to me to be correct. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr.P.C. The power given by Section 439 to the High Court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise any revisional jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under section 439 Cr.P.C. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High Court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same fact, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singh's case (above)."
11) From the aforesaid discussion of law on the subject, it is manifest that the rejection of a bail application by Sessions Court does not operate 6 Bail App No.09/2022 as a bar for the High Court in entertaining a similar application under Section 439 Cr. P. C on the same facts and for the same offence.
12) Coming to the order of the learned Additional Sessions Judge, Anantnag, whereby application of the petitioner for grant of bail has been rejected, the learned Judge while rejecting bail application of the petitioner has observed that the petitioner has committed a grave offence which is against the society and in case he is enlarged on bail, it will encourage the criminals to commit similar offences.
13) So far as the instant case is concerned, the petitioner is alleged to have committed offences under Section 354, 354-A, 451, 506, 376, 511 IPC. None of these offences is punishable with death sentence or imprisonment for life. Therefore, there is no legal or statutory bar to the grant of bail in the instant case.
14) It is a settled position of law that grant of bail is a rule whereas its refusal is an exception. The question whether bail should be granted in a case has to be determined on the basis of the facts and circumstances of that particular case. A Coordinate Bench of this Court, while discussing the principles to be followed in a case where intermediary quantity of contraband was recovered from the accused, has, in the case of Mehraj- ud-Din Nadroo and others Vs. State of J&K (BA No.74/2018 decided on 07.07.2018), observed as under:
"9. The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use 7 Bail App No.09/2022 of discretion but at the time of deciding the question of "bail or jail" in non-bailable offences. Court has to utilize its judicial discretion, not only that as per the settled law, the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses, if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
10.The word "judicial discretion" has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight- errant roaming at will in pursuit of his own ideal of 8 Bail App No.09/2022 beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains."
Even so, it is useful to notice the tart terms of Lord Camden that "the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable.
15) In the light of the afore-quoted principles, let us now advert to the facts of the instant case. As already noted, the petitioner is not alleged to have committed an offence which is punishable with death sentence or imprisonment for life. Therefore, there is no bar to grant of bail operating in the instant cases. The observations of the learned trial court, while rejecting the bail application of the petitioner, that the offences alleged to have been committed by the petitioner are serious in nature and that the same are against the society, cannot be the sole reason for rejection of the bail application, particularly when the allegations are yet to be established. Allowing the petitioner to remain in custody because of the reason that the offences alleged to have been committed by him are serious in nature, would amount to inflicting pre-trial punishment upon them. Every person is presumed to be innocent unless duly tried and duly found guilty. Withholding of bail cannot be as a measure of punishment. The petitioner is in custody for last more than four months now and his further incarceration will be nothing but imposition of punishment without trial 9 Bail App No.09/2022 of the case. Therefore, a balanced view of the matter is required to be taken by enlarging the petitioner on bail.
16) Apart from the above, the submission of the learned counsel for the petitioner that the prosecutrix has, while making her statement under Section 164 of Cr. P. C, made material improvements upon the version which she had narrated at the time of lodging of the FIR and while making her statement under Section 161 Cr. P. C, prima facie, appears to be well- founded. However, this Court at this stage, in these proceedings, would not like to make any comment upon merits of the aforesaid submission lest it may prejudice the case of the prosecution. This aspect of the matter, however, deserves to be taken note of while considering the bail plea of the petitioner, particularly when the prosecutrix has, in her own statement, deposed that the petitioner harbours a grudge against them and wants to get their ration card cancelled, which means that there was enmity between the parties. Thus, false implication of the petitioner in the case cannot be ruled out.
17) Yet another aspect of the matter which has not been taken note of by the learned trial court while rejecting bail application of the petitioner is the stage of investigation. The investigation of the case is complete and the charge sheet stands filed before the trial court. If the petitioner is not enlarged on bail, it may also have an adverse impact on his preparation of defence against the charges that have been laid against him before the learned trial court. The discretion regarding grant or refusal of bail cannot 10 Bail App No.09/2022 be exercised against the petitioner on the basis of public sentiments or to teach him a lesson as his guilt is yet to be proved.
18) For the foregoing reasons, the petition is allowed and the petitioner is admitted to bail subject to the following conditions:
(i) That he shall furnish personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the learned trial court;
(ii) That he shall appear before the trial court on each and every date of hearing;
(iii) That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court;
(iv) That he shall not intimidate or tamper with prosecution witnesses/evidence.
(SANJAY DHAR) JUDGE Srinagar 06.04.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No