Sqn. Ldr Ginni Choudhary vs Wg Cdr M. Kirpal And Another
2021 Latest Caselaw 935 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                            Reserved on 13.08.2021
                                            Pronounced on: 23 .08.2021

                                            Bail App No. 127/2021


Sqn. Ldr Ginni Choudhary                         .....Appellant(s)/Petitioner(s)


                     Through: Mr. A. K. Sawhney, Advocate
                Vs
Wg Cdr M. Kirpal and another                               ..... Respondent(s)


                     Through: Mr. Ankur Sharma, Advocate


Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                               JUDGMENT

1. The present petition has been filed by the petitioner under section

439(2) read with section 482 Cr.P.C. for cancellation of the bail

granted to the respondent No. 1 by the learned Principal Sessions

Judge, Jammu vide order dated 18.03.2021, primarily on the ground

that the bail has been granted in anticipation of arrest to respondent

No. 1 for commission of offence under section 354-A IPC, which is a

bailable offence and pre-arrest bail application does not lie for the

said offence. It is further stated that the learned Sessions Judge has

not applied its mind and passed the order mechanically and

arbitrarily and further that the respondent No. 1 has been

emboldened with such impugned order and has started inducing,

tampering, winning over and influencing the witnesses of the

petitioner.

2. Response stands filed by the respondent No. 1 in which it is stated

that the respondent No. 1 has also challenged the FIR bearing No.

0036/2021 dated 11.02.2021 before this Court and this Court had

stayed the production of the challan. It is further stated that the

respondent No. 1 on 13.02.2021 had moved an application seeking

bail in anticipation of arrest before learned Principal Sessions Judge,

Jammu and at the time of filing of the said application, the

respondent No. 1 was having no knowledge about the offences under

which he had been booked by the police and he was granted an

interim anticipatory bail with certain terms and conditions in terms of

order dated 13.02.2021 passed by the learned trial court. On

26.02.2021, when the bail application of respondent No. 1 was taken

up, it was noted that after recording statement of the petitioner under

section 164 Cr.P.C, offence section 354 IPC has also been included

in the said FIR. It is also stated that interim anticipatory bail granted

to the petitioner on 13.02.2021 was made absolute by learned

Principal Sessions Judge, Jammu vide order 18.03.2021 and further

the docket forwarded to the SHO, Police Station, Satwari by the

learned Principal Sessions Judge, Jammu with regard to the order

dated 18.03.2021clearly reveals that respondent No. 1 has been

granted bail under sections 354 and 354-A IPC. Inadvertently,

section 354 IPC was not mentioned in the order dated 18.03.2021. It

is also denied by respondent No. 1 that he at any point of time

threatened the witnesses of the petitioner.

3. Mr. A. K. Sawhney, learned counsel for the petitioner has

vehemently argued that the respondent No. 1 was granted bail in

anticipation of arrest in an FIR that was registered for bailable

offence and the application for grant of anticipatory bail was not

maintainable. So far as other grounds are concerned, Mr. Sawhney

submits that the respondent No. 1 can raise these grounds before the

court of the learned Principal Sessions Judge, Jammu.

4. Mr. Ankur Sharma, learned counsel for respondent No. 1 has

vehemently argued that the respondent No. 1 was granted bail for

commission of offence under section 354 IPC as after recording of

the statement of the petitioner, the said offence was also added so the

contention of the petitioner that the respondent No. 1 has been

granted anticipatory bail in a bailable offence is misconceived. He

further submitted that the respondent No. 1 has never threatened any

of the witness of the petitioner.

5. Heard and perused the record.

6. From the record, it is evident that respondent No. 1 had filed the

application under section 438 CrPC for grant of bail in anticipation

of arrest and in the said application, the respondent No. 1 had simply

stated that the respondent No. 1 has been falsely implicated in some

non-bailable offences by Police. More so, he had not annexed any

copy of the FIR along with the said application and taking into

consideration the apprehension of respondent No. 1, the learned

Principal Sessions Judge, Jammu granted the interim bail in

anticipation of arrest on 13.02.2021 and the matter was fixed for

22.02.2021 and on 22.02.2021, the Public Prosecutor sought time to

file the response to the said application and the matter was fixed for

26.02.2021 and on 26.02.2021, the Public Prosecutor filed the

response and it was found that initially FIR bearing No. 36/2021 for

offence under section 354-A IPC was registered and subsequently

after recording the statement of the petitioner under section 164

Cr.P.C, offence under section 354 IPC was also added and the

learned Principal Sessions Judge, Jammu vide order dated

26.02.2021 directed the Public Prosecutor to file objections and the

matter was posted for 04.03.2021 and till then it was ordered that no

coercive action shall be taken against the respondent No. 1 and

further the respondent No. 1 was directed to cooperate with the

investigation and appear before the Investigating Officer as and

when required and thereafter, learned trial court vide order dated

18.03.2021 after perusing the Case Diary and taking into

consideration the statement of the Investigating Officer that the

custodial interrogation of respondent No. 1 was not required, made

the interim bail absolute on the same terms and conditions.

7. A perusal of the order reveals that section 354 IPC has not been

mentioned in the said order. Be that as it may, the fact remains that

the learned trial court vide order dated 26.02.2021 had taken note of

the fact that offence under section 354 IPC has been added pursuant

to the statement of the petitioner.

8. In view of what has been discussed above, it cannot be said that the

respondent No. 1 has been granted bail in anticipation of arrest in

bailable offence. Learned trial court taking into consideration of

allegation with regard to sexual harassment and also taking into

consideration that the presentation of the challan was stayed by this

Court and further enquiry against respondent No. 1 is also underway

by Internal Complaint Committee with regard to allegations of

sexual harassment and further respondent No. 1 has cooperated with

the Investigating Agency, the interim bail granted to the respondent

No. 1 was made absolute. No fault can be found with the order

impugned. So far as the contention of the petitioner that the

respondent No. 1 has been advancing threat to the witnesses of the

petitioner, the petitioner has every right to approach to the court of

learned Principal Sessions Judge, Jammu with regard to her

grievance, if so advised.

9. In view of the above, there is no merit in this petition, as such, the

same is dismissed.

(Rajnesh Oswal) Judge Jammu 23.08.2021 Rakesh

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No