Jammu & Kashmir High Court - Srinagar Bench
Shabir Ahmad Khan vs State Of J&K; & Ors. on 19 December, 2018
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
Serial No.26
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
B.A. No.151/2018
Date of decision:19.12.2018
Shabir Ahmad Khan v. State of J&K
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge.
Appearance:
For the Petitioner(s): Mr. Manzoor Ahmad Ganai, Adv.
For the Respondent(s): Mr. Asif Bhat, AAG
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. By medium of instant petition filed under Section 498 Cr. P. C, Shabir Ahmad Khan (accused) through his mother, Hamida Bano, has approached this Court for grant of bail.
2. In the petition, petitioner, precisely, has pleaded as under:
(i) That the investigation of the case is complete and challan has been produced before the court of ld. Additional Sessions Judge, Anantnag;
(ii) That the evidence in the case is being recorded and so far evidence of star witnesses of the prosecution has been recorded. The statement of the prosecutrix as well as of the uncle of the prosecutrix, who had filed FIR, has also been recorded;BA No.151/2018 Page 1 of 11
(iii) That the accused was initially admitted to bail by the Court of Sessions Judge, Anantnag, vide order dated 13.06.2018 which was subsequently cancelled vide order dated 28.06.2018 and the case sent to the Court of ld.
Additional Sessions Judge, Anantnag, where the evidence of statements of prosecutrix and her uncle has been recorded;
(iv) That the subsequent bail application moved before ld. Additional Sessions Judge, Anantnag, was rejected vide order dated 16.10.2018;
(v) That there is no medical evidence of rape, therefore, the story cooked up by the police is without any substance. The prosecutrix in her statements nowhere says that the accused raped her or she was forcibly subjected to sexual intercourse. In the statement of the prosecutrix, nothing suggests that the accused committed successful intercourse and she has not, at any point, in her examination-in-chief or cross examination stated that the accused, in fact, inserted his penis into her private part, forcibly or otherwise;
(vi) That the topography of the occurrence as put forth by the prosecution is such as would probably in all probabilities attach the attention of the neighbours and people living in the close vicinity but nobody has come to know about the episode which is a clear indication that the prosecutrix has been a consenting party;
(vii) That if an offence like the present one would happened in the heart of the village and in the centre of the locality where houses are everywhere, it would be quite natural that neighbouring inhabitants would come to know about the episode;
BA No.151/2018 Page 2 of 11(viii) That the failure of the prosecution to prove that the prosecutrix was below the age of 18 years and that no effort was made by her to free herself from the clutches of the accused and that she did not raise any protest or seek any help from the time she was allegedly taken away by the accused till she was discovered in the morning by her relatives, shows that she was a consenting party and, therefore, the whole prosecution case is fabricated and concocted;
(ix) That the continued detention of the accused at this stage is not going to serve any purpose instead it would amount to punishment which is against law;
(x) That the offence alleged to have been committed by the accused person does not carry punishment for death or life imprisonment;
(xi) That the case against the accused appears to have been tailored and does not stand the test of law. One of the important aspects of the case is that the accused and the prosecutrix live in close neighbourhood and by no stretch of imagination could the accused single headedly abduct the prosecutrix from her bathroom. The house where, according to the police, the prosecutrix was kept for a night situated in the heart of the village. This is highly improbable that the prosecutrix would stay silent during the time she was carried from the bathroom.
3. Objections have not been filed as the learned AAG sought further time for the same. Learned counsel for the petitioner, however, submitted that the purpose of filing bail application before the High Court would stand frustrated in case its consideration is delayed on account of the status report or the objections to be filed by the other-side.
BA No.151/2018 Page 3 of 114. Learned counsel for the petitioner laid emphasis on the argument that the offence of rape cannot be said to have been committed as the story drawn in terms of the First Information Report or the deposition before the trial Court reflects the same being improbable to the perception and understanding of a common man. It is also his contention that in case the allegation regarding forcibly taking away the prosecutrix would have some semblance of truth, the Medical Officer, having examined the prosecutrix, would have found the marks of struggle or violence on the person of alleged prosecutrix. Furthermore, according to him, it is being admitted in the prosecution story that the alleged prosecutrix was taken from her residence to a distant place, in case it would have been so, she would have raised hue or cry or commotion to save herself from the clutches of the accused/petitioner herein, which being not present in the prosecution case, the allegations are to be treated as untrue and the accused held entitled to bail. One more contention raised by the learned counsel for the petitioner is that ld. Sessions court first admitted the accused to bail and later withdrew the concession on the count that the petitioner has misused the concession of bail. The ld. Additional Sessions Judge has failed to take note of this fact while considering the fresh bail petition filed in this behalf, after the case was transferred to said Court for disposal. Learned counsel further pleaded that bail and not jail being the principle, this Court is required to be alive to this principle and consider the bail application accordingly. In support of his submissions, learned counsel for the petitioner placed reliance on the judgment "Haji Mohammad Jaffer & anr Vs. State of J&K" (2014 SLJ (HC) 361) and "Gudikanti Narasimhulu and others Vs. Public Prosecutor High court of Andhra Pradesh" reported in (1978) 1 SCC 240.
BA No.151/2018 Page 4 of 115. In "Haji Mohammad Jaffer & anr Vs. State of J&K" (2014 SLJ (HC)
361), this Court has held that what is required of the bail court and is important is that while passing orders on bail applications, the court should avoid making detailed examination of evidence and elaborate discussion on the merits of the case. Further it has been held that to say that the evidenced recorded by the court does not absolve the accused (petitioner) is too scanty and legally not correct. If the evidence is found to absolve the accused, question arising would be why the accused be not acquitted and not only that why he be not released on bail. Evidence in consideration of a bail application needs to be scrutinized for limited purpose and to firm an opinion whether bail be granted or refused. Such scrutiny though can be done by this court but it is apt and essential that this job is left to the trial court, which is seized of the entire record and is in position to compare entire evidence and material.
6. In Gudikanti Narasimhulu and others Vs. Public Prosecutor High court of Andhra Pradesh" reported in (1978) 1 SCC 240, their Lordships of Hon'ble Apex Court have held that bail discretion on the basis of evidence about the criminal record of a defendant is, therefore, not an exercise in irrelevance. However, it makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded into custody.
7. On the other hand, Mr. Asif Bhat, learned AAG, contended that the petitioner has committed a serious offence and the bail cannot be granted in a routine manner. Neither in the application or in the arguments of learned counsel for the petitioner, according to him, anything is put forth from which the bar in terms of Section 497-C Cr. P. C can be said to have been cleared by BA No.151/2018 Page 5 of 11 the petitioner. The learned counsel for the petitioner, according to him, has not put forth any argument in the light of amendment in Section 375 of the Penal Code, which does not necessitate the penetration for the commission of offence now. The minority of the alleged prosecutrix is also lost sight of, according to learned AAG, by the other-side. Even if prosecutrix would be treated a consenting party, that would not make much difference in the instant case and so the bail application merits dismissal. Change of circumstances for filing fresh bail application is necessary in the light of the facts pleaded as the order passed by learned Sessions Judge withdrawing the concession was not challenged before the competent forum at the relevant time. Learned AAG to substantiate his argument, placed reliance on below mentioned judgments:
(i) "Arshad Ahmad Dar Vs. State through SHO P/S
Chari Sharief" 2017 (6) 348 [HC];
(ii) "State of M. P. Vs. Kajad" (2001) 7 SCC 673;
(iii) "Virupakshappa Gouda and another Vs. State of
Karnataka and another" (2017) 5 SCC 406;
8. In "Arshad Ahmad Dar Vs. State through SHO P/S Chari Sharief"
2017 (6) 348 [HC], this Court observed that evidence of prosecution can be sifted at the time of considering the bail application, for the limited purpose of ascertaining the overview as to commission of offences by the accused. Elaborate analysis of the evidence cannot be made as it is in the domain of final outcome of the trial. Minority of the prosecutrix at the time of commission of offence has crucial bearing so far as offence under Section 376 RPC is concerned. Consent would not be material to enter into sexual BA No.151/2018 Page 6 of 11 intercourse. Applicant/accused has not been able to overcome the bar created under Section 497-C."
9. In "State of M. P. Vs. Kajad" (2001) 7 SCC 673, their Lordships of Hon'ble Apex Court held grant of bail by High Court on the basis of its own sense of observation regarding the course of conduct adopted by the accused at the time of his interception not justified.
10. In "Virupakshappa Gouda and another Vs. State of Karnataka and another" (2017) 5 SCC 406, the Hon'ble Apex Court held that bail application cannot be allowed solely or exclusively on ground that fundamental principle of criminal jurisprudence is that accused is presumed to be innocent until found guilty by competent court nor on basis of certain observations made in different context. Bail cannot be granted in arbitrary or fanciful manner. Where bail is granted taking into consideration irrelevant materials and keeping out relevant considerations, such order becomes vulnerable warranting annulment.
11. In rebuttal, learned counsel for the petitioner submitted that inherent improbabilities of the prosecution story have to be given due weight by the Court as the petitioner herein is portrayed as a superman in the prosecution story and not an ordinary human being whose capability to commit offence is to be examined in the light of understanding of a common man.
12. I have given my thoughtful consideration to the material before me. The fact remains the concession which was withdrawn in terms of the order passed on 28.06.2018 by ld. Principal Sessions Judge has not been challenged by the petitioner herein. Fresh bail petition appears to have been presented before the trial BA No.151/2018 Page 7 of 11 court for grant of bail which the learned Court declined to accept for the reasons indicated in the order. The grounds on which the bail application has been rejected include "the accused has repeatedly committed the offences with the result different FIR's have been lodged against him and also has threatened the witnesses which in other words reveals that he has tampered with the prosecution evidence, as such, even under Section 497 Cr. P. C, the accused is not entitled to concession of bail on the basis of character, behavior, position, likelihood of repeating the offence and the reasonable apprehension of the witnesses being influenced and tampered with."
13. It is an admitted feature of the prosecution case that the prosecutrix is minor, she nonetheless having been examined in the Court, some other witnesses, relied on by the prosecution, may have yet to be examined and it would be on the cumulative appreciation of the evidence so produced before the trial court to see whether allegations levelled against the present petitioner were stemmed on truth and/or false in nature.
14. The Court in view of amendment in Section 497-C Cr. P. C, in terms of the Criminal Law Amendment Act, is required to record a finding, may be even a tentative one, that the allegations levelled against the accused cannot be presumed to be true. It would be proper herein to quote the said provision:
"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, 326-A, 370, 376, 376-A, 376-C, 376-D or 376-E 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:BA No.151/2018 Page 8 of 11
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 497-A 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)."
15. Notice of the fact is also required to be taken that the definition of "rape" in Section 375 RPC has also been amended. It would be quite apposite to reproduce the said amended provision:
"375. Rape- A man is said to commit rape if he-
a) Penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any other person; or
b) Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so, with him or any other person; or
c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
d) Applies his mouth to the vagina, anus or urethra of a woman or makes her to do so with him or any other BA No.151/2018 Page 9 of 11 person, under the circumstances falling under any of the following seven descriptions;-
First- against her will;
Secondly- without her consent;
Thirdly- with her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt;
Fourthly -with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married;
Fifthly- with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that action to which she gives consent;
Sixthly- with or without her consent, when she is under eighteen years of age;
Seventhly- when she is unable to communicate consent."
16. On a cursory view of the above provision, the offence of "rape" can be said to have been committed even by "manipulation of any part of the body of the victim in connection with commission of offence".
17. Be it so, having regard to the stage at which the case is stated to be at present, I deem it inapt to record my opinion on the veracity of the prosecution case or what is required to be stated in terms of Section 497-C Cr. P. C before grant of bail. Sufficient grounds have been already found for proceeding against the accused by BA No.151/2018 Page 10 of 11 the trial court and so he has been charged. It would be quite absurd to tender a contrary opinion in presence of such a tentative finding by the trial court when there is no substantial change in the material relied by prosecution to sound so. Bar of Section 497 Cr. P. C would be applicable which makes the prayer made before this Court for grant of bail liable to rejection. In view of the same, resort to general provision of bail in non-cognizable offence under Section 497 Cr. P. C cannot be made. I, as such, do not find any ground for grant of bail at this stage. The application for grant of bail is, accordingly, rejected. Petitioner herein would be, however, free to approach the concerned trial court or this Court in case there is any change of circumstances necessitating the view taken herein to be revisited or re- considered.
18. A copy of this order be sent to the trial court for information.
(Rashid Ali Dar) Judge Srinagar 19.12.2018 "Bhat Altaf, PS"
BA No.151/2018 Page 11 of 11