Romesh Kumar vs Union Territory Of J&K
2021 Latest Caselaw 1700 j&K

                                                                          121

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                                Bail App No. 303/2021
                                                CrlM No. 1808/2021

                                                Reserved on : 16.12.2021
                                                Pronounced on : 17.12.2021

Romesh Kumar                                  ....Petitioner(s)/Appellant(s)
                Through :- Ms. Rozina Afzal, Advocate.
        V/s
Union Territory of J&K                                         ....Respondent(s)

               Through :-    Mr. Aseem Sawhney, AAG

Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE

                                    ORDER

1. The applicant has moved this application for seeking grant of bail in

case FIR No. 75/2021 registered with Police Station, Domana for

allegedly committing the offence punishable under Section

376/343/323 IPC, who is in custody since 03.07.2021. It is contended

that the applicant has earlier also filed an application for grant of bail

before the learned Fast Track court Jammu, which came to be

dismissed on 14.09.2021.

2. The prosecution case in brief is that on 06.02.2021 the prosecutrix was

locked in the room for two days and tried to rape her by force,

however, she had a narrow escape and on 09.02.2021 the prosecutrix

approached the SHO, Police Station, Domana for registering complaint

against the accused under Section 376/511 IPC but the SHO did not

registered the complaint rather he asked the complainant to

compromise.

3. The Police Station, Domana, accordingly, registered FIR No. 75/2021

under Section 376/511 IPC against the applicant as well as husband of

the prosecutrix, namely, Pawan Kumar and during the course of

investigation the statement of the witnesses under Section 161 Cr.P.C.

was recorded and medical examination of the victim from the District

Hospital, Sarwal, Jammu was conducted and the medical report was

also obtained and subsequently statement under Section 164 Cr.P.C.

has also been recorded before the learned Sub-Registrar, Munsiff,

Jammu. As per the site plan, statement of the victim under Section 164

Cr.P.C. and medical report, the offences under Section 354, 342, 323,

506 IPC have been added, however, the offences under Section 376,

511 IPC have been deleted. It is further averred that during the

investigation, the offences under Section 342/323/506 IPC have been

proved against the accused, namely, Pawan Kumar, S/o Romesh

Kumar R/o Maniyal Brahmana, Tehsil Marh, District Jammu and

offences under Section 354/342/323/506 IPC have been proved against

the accused/applicant herein, namely, Romesh Kumar, S/o Bansi Lal

R/o Maniyal Brahmana, Jammu and accordingly, applicant, namely,

Romesh Kumar has been arrested and lodged in police lockup under

police remand up to 31.03.2021 and the accused, namely, Pawan

Kumar has been bailed out, however, subsequently, the petitioner has

also been granted bail on 23.03.2021 which has been made absolute on

31.03.2021. Thereafter, the husband of the complainant has moved a

petition under Section 13(1) of the Hindu Marriage Act before the

competent court in which the complainant has received a notice on

03.03.2021.

4. It is further averred that on the direction of the senior officers further

investigation of the case has been carried out and supplementary

statement of the complainant was recorded on 29.06.2021 before the

competent court of law and on the basis of the statement of the

complainant, offences under Sections 376/343/323 IPC have been

added and offences under Sections 354/342 IPC have been omitted and

accordingly, the accused/applicant herein was again arrested on

03.07.2021 and sent to judicial custody.

5. Heard learned counsel for the parties.

6. Mr. Aseem Sawhney, learned AAG has filed objections and has

resisted the bail application.

7. Ms. Rozina Afzal, learned counsel for the applicant submits that the

applicant has been falsely implicated in the commission of offences.

She further submits that on the basis of the complaint filed by the

complainant the matter was investigated and the statement of the

prosecutrix was also recorded under Section 164 Cr.P.C. on

20.03.2021 before the learned Sub-Registrar, Jammu, who in her

statement stated that on 06.02.2021 at 7:30 PM the applicant after

being drunk attempted to force himself on her and threatened to

eliminate her if she made a complaint, however, the complainant in her

statement has not mentioned about any sexual assault or sexual

offence. The complainant further stated in her statement that her

husband beat her alongwith the applicant and locked her inside the

room and on 09.02.2021 she reported to Police and on 13.02.2021 the

concerned Police asked her to make a compromise and on 19.03.2021

a compromise deed was executed between the son of the applicant

herein and the complainant, therefore, the matter was amicably settled.

However, keeping in view the conduct of the complainant the husband

of the complainant has filed a petition under Section 13(1) of the

Hindu Marriage Act of which a notice was received by the

complainant. Thereafter, the complainant with a malafide intention just

to take revenge approached the higher authorities for again recording

her statement under Section 164 Cr.P.C. for the second time and

accordingly, statement of the complainant was recorded before the

learned 3rd Additional Munsiff, Judicial Magistrate 1st Class, Jammu,

wherein the complainant has alleged rape by the applicant herein and

accordingly Section 376 IPC was included. Learned counsel for the

petitioner vehemently argued that statement under Section 164 Cr.P.C.

cannot be recorded on the 2nd time. In support of her contention she

relied upon the judgment dated 13.03.2012 passed by the High Court

of Rajasthan titled "Tanu Kanwar vs. State of Rajasthan" and the

judgment dated 06.05.2015 passed by the High Court of Allahabad

titled "Nafeesa vs. State of U.P."

8. It is a trite law that personal liberty is a very precious fundamental

right enshrined in Article 21 of the Constitution of India and

deprivation of liberty is a matter of grave concern. It should be

curtailed only when it becomes imperative to the peculiar facts and

circumstances of the case. When a person is arrested on the allegations

of commission of non-bailable offence, two conflicting interests are

pitted against each other, that is, liberty of individual involved and

interest of society so as to prevent crime and punish criminal. It

becomes responsibility of the courts to weigh the contrary factors. The

object of detaining a person in judicial custody is to direct him to join

the investigation, secure his presence at trial, he may not interfere with

investigation, intimidate witnesses, tamper with evidence, flee from

justice, chances of repeating the offence etc., and if this purpose can be

fulfilled by putting certain conditions and securing bail bonds, it would

be an ideal blending of two apparently conflicting claims.

9. A fundamental postulate of Criminal Jurisprudence is the presumption

of innocence, which means a person is believed to be innocent until

found guilty. Another facet of our Criminal Jurisprudence is that grant

of bail is the general rule and putting a person in jail is an exception

(Bail but not the jail). Grant or denial of bail is entirely the discretion

of a Judge considering a case, but such discretion should be exercised

judiciously and not arbitrarily.

10. While examining the scope of grant of bail, the Supreme Court in a

landmark decision rendered in the case of Sanjay Chandra vs Central

Bureau of Investigation, AIR 2012 SC 830, has held that the object of

bail is neither punitive nor preventive. Deprivation of liberty must be

considered a punishment unless it is required to ensure that the

accused will stand his trial when called upon. It was also observed that

detention in custody pending completion of trial could be a great cause

of hardship. While refusing the 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 of an un-

convicted person for the purpose of giving him a taste of imprisonment

as a lesson.

11. In the present case the complainant in her statements recorded under

Section 161 Cr.P.C. and 164 Cr.P.C. has nowhere mentioned that she

has been raped by the accused and about any sexual assault or sexual

offence. In fact, she agreed to make a compromise and accordingly a

compromise deed was also executed. Thereafter, on the basis of the

statement and also medical report offences under Sections 376/511

IPC have been deleted. The complainant seems to have received a

notice on 03.03.2021 of the petition under Section 13(1) of the Hindu

Marriage Act filed by the son of the applicant and therefore, she again

approached the higher authorities to record her statement under

Section 164 Cr.P.C. again and accordingly, her statement under

Section 164 Cr.P.C. was again recorded wherein the complainant

alleged the commission of offence of rape only against the applicant

who is stated to be the father-in-law of the complainant, whereas no

allegation has been made against Pawan Kumar who is stated to be the

husband of the complainant.

12. Therefore, prima facie a case is made out for grant of bail in favour of

the petitioner. Accordingly, this application is allowed and the

petitioner is admitted to bail subject to the following conditions:

i. That he shall furnish bail bond in the amount of Rs.50,000/ with

one surety of the like amount to the satisfaction of the Registrar

Judicial and personal bond in like amount to the satisfaction of

the Superintendent District Jail, Jammu;

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 Trial court;

iv. That he shall not tamper with the prosecution witnesses.

13. Copy of this order be sent to the learned Trial court.

14. It is made clear that the Trial court shall not be influenced by any of

the observations made hereinabove while proceeding further with the

trial of the case.

15. It is also made clear that as and when the charges are framed against

the accused he shall approach the competent court for regular bail.

16. Bail application alongwith connected CrlM stands disposed of.

(Tashi Rabstan) Judge Jammu:

17.12.2021 Pawan Angotra

PAWAN ANGOTRA 2021.12.20 14:15 I attest to the accuracy and integrity of this document