Rajesh Kumar Abrol vs Union Territory J&K And Another
2021 Latest Caselaw 24 j&K

      IN THE HIGH COURT OF JAMMU AND KASHMIR
                     AT JAMMU

                     (THROUGH VIRTUAL MODE)


                                              Bail App No.190/2020
                                             CrlM No.1101/2020,
                                             1102/2020

                                       Reserved on:29.12.2020
                                       Pronounced on: 29.01.2021


Rajesh Kumar Abrol                                      ... Petitioner(s)

                    Through: -Mr.Sunil Sethi Sr. Advocate with
                              Mr. Achal Sharma Advocate.

                   Vs.

Union Territory J&K and another                      ...Respondent(s)

                   Through: - Mr. Aijaz Lone, Dy.AG


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                            JUDGMENT

1 Through the medium of instant petition, the petitioner is seeking

bail in FIR No. 06/2018 for offences under Sections 376/420 RPC

registered with Police Station Janipur, Jammu.

2 As per the prosecution case, a report was lodged by the

prosecutrix with the aforesaid Police Station on 12.01.2018. In the

report, the prosecutrix alleges that in the year 2005, whileshe was

contesting a case against a person, she came into contact with the

petitioner through a lady, named Jyoti, who claimed to be the sister of

the petitioner; that the lady suggested her to meet the petitioner for

legal help; that she met the petitioner, who promised to extend legal

help to her on the condition that she should work as his domestic help 2Bail App No.190/2020

at his house at Roop Nagar, Jammu; that she started working at the

house of the petitioner, who promised to pay her salary of Rs.5000/-

per month; that she and her daughter were putting up in the house of

the petitioner; that on her seeking legal support, the petitioner assisted

in dissolution of her marriage with her husband by getting the divorce

deed attested by Notary Public, Jammu on 07.08.2015 and one of the

PSOs of the petitioner signed the said deed as witness; that the

petitioner befooled her by getting the divorce deed attested before

Notary Public, knowing well that only a decree of divorce could

dissolve a marriage; that after working for the petitioner for some time,

she expressed her intention of leaving the work; that on this, the

petitioner got agitated and requested her not to leave him alone; that he

filled her 'Maang' with 'Babuti' and declared that she is his wife now

and cannot leave him alone; that she was taken aback, she started

crying and stopped talking to the petitioner, who assured her that he

would take care of her daughter and provide her good education; that

she asked the petitioner that since he is already married, as such, how

could he marry her during the life time of his wife; that the petitioner

told her that he had parted with his wife; that he is living separately

from his wife for last seven years and that he is a law knowing person;

that the petitioner made her to believe that she is lawfully married to

him and that she is his legally wedded wife; that by doing so, he also

secured her consent to have sexual intercourse with her; that she

succumbed to his pressure and did not share the aforesaid facts with

anyone around; that a few months later, the petitioner planned to have

'Saptpati' with her; that he solemnised marriage with her in his house 3Bail App No.190/2020

at Roop Nagar in presence of his PSO, Ashok Jamwal, his friend,

Darshan Gupta and a Pandit; that the petitioner concealed his marital

status from her and made her to believe that she is his legally wedded

wife; that thereafter, they lived like husband and wife for one and a

half years; that after one year of their marriage, she came to know that

the petitioner has betrayed her by marrying her during the lifetime of

his wife Neetu Bala, who thrashed her saying that she should leave

thepetitioner immediately as they are going to patch up soon; that on

this, she took up the matter with the petitioner who denied having any

relation with Neetu Bala but at a later stage accepted the same and

assured her of all kind of financial support; that the petitioner

threatened her of dire consequences for taking any action against him;

that she remained under his pressure knowing that the petitioner is a

Judicial Officer and can manage things against her; that the petitioner

has treated her as a sex slave and several times opened fire on her; that

the petitioner has now withdrawn from her society and has shifted to

his wife; that the petitioner married and secured her consent to sexual

intercourse and has defamed her in public at large; that he told her that

she is his legally wedded wife; that she should have never given her

consent to develop physical relation with her and that she is now

putting up at Nagrota and she is still being threatened by the petitioner.

3 After investigation of the case, offences under Sections 420/376

RPC were found established against the petitioner and a chargesheet

was laid before the learned trial Court. It appears that the petitioner has

approached the learned trial Court as well as this Court on a number of 4Bail App No.190/2020

occasions for grant of bail, but each of his attempts has resulted in

failure. The latest bail application of the petitioner was rejected by the

learned trial Court on 06.05.2020. The record of the learned trial Court

shows that the trial of the case is almost complete and only one witness

viz. the Investigating Officer has to be examined in the case.

4 The petitioner has sought bail in the instant case primarily on the

following two grounds;

(i) That the statements of prosecution witnesses in the case do not make out a case of rape against the petitioner and

(ii) That the health condition of the petitioner has deteriorated due to his prolonged detention.

5 The respondent has resisted the bail petition by filing its reply

thereto. In its reply, the respondent has contended that the petitioner is

facing trial for commission of heinous offence of rape and in view of

the evidence on record, no good ground is made out to enlarge him on

bail. It is further contended that in case, the petitioner is enlarged on

bail, there is every likelihood of the witnesses being influenced. Apart

from this, the petitioner may flee from the process of law by misusing

the liberty of bail.

6 I have heard learned counsel for the parties and perused the

record of the case including the trial Court record.

7 Before proceeding to analyze the rival submissions made by

learned counsel for the parties, it is necessary to restate the factors 5Bail App No.190/2020

required to be considered for deciding an application for bail which are

as under::-

(i) whether there is any prima facie or reasonable ground to believe that the accused has committed offence;

     (ii)     nature and gravity of the charge;

     (iii)    severity of punishment in the event of conviction;

     (iv)     danger of the accused absconding or fleeing after
     release on bail;

     (v)      character, behavior, means, position and standing of the
     accused;

     (vi)     likelihood of the offence being repeated;

     (vii)    reasonable apprehension of the witnesses being
     tampered with and

(viii) danger of justice being thwarted by grant of bail.

8 The primary factor while considering the question of grant or

refusal of bail in a serious offence like rape is to see, as to whether

there is any material on record to implicate the person seeking bail.

According to the learned counsel for the petitioner, the statements of

the witnesses recorded before the trial Court do not implicate the

petitioner in the crime, whereas the learned counsel for the respondent-

State strongly contends that the material on record does support the

case of the prosecution against the petitioner.

9 Although, it would be premature for this Court to deeply analyse

the material that has been brought before the trial Court during the trial

of the case in support of the charge against the petitioner, yet, for the

limited purpose of deciding this bail application, it is necessary to take 6Bail App No.190/2020

the said material into consideration to test the merits of submissions

made by learned counsel for the parties.

10. A perusal of the statements of prosecution witnesses recorded by

the trial Court in this case does suggest that most of the prosecution

witnesses have not supported the prosecution case, but the most

material witness in this case, the prosecutrix appears to have supported

the prosecution case. She, in her statement, has reiterated the allegation

that while she was working as a maid servantin the house of the

petitioner, her 'Maang' was filled with ashes by the petitioner and

thereafter both of them further solemnised the marriage as per the

Hindu rites and they started living as husband and wife. She has gone

to state that the petitioner deceitfully made her to believe that she is his

wife and committed sexual intercourse with her. Whether the statement

of the prosecutrix has withstood the test of cross- examination and

whether there are other circumstances proved on record that would

make her statement reliable, are questions which can be gone into by

the trial Court at the time of passing the final judgment. These

questions cannot be gone into by this Court during the bail proceedings,

as it is not open to this Court to meticulously analyse the evidence on

record.

11 Having regard to the nature of the statements of prosecution

witnesses, particularly the statement of the prosecutrix, this Court is

unable to record an opinion, even a prima facieopinion that the case of

prosecution against the petitioner is frivolous. There appears to be some

merit in the submission of learned counsel for the respondent that from 7Bail App No.190/2020

the statement of the prosecutrix, a prima facie view can be taken that

the consent of prosecutrix for sexual intercourse was obtained by the

petitionerknowing that he is not her husband,when the prosecutrix

believed herself to be lawfully married to petitioner thereby attracting

clause fourthly of Section 375 of RPC. Thus, it cannot be stated at this

stage that the petitioner is not involved in the alleged crime.

12 The order dated 06.05.2020 passed by the learned 3rd Additional

Sessions Judge, Jammu whereby the bail application of the petitioner

has been rejected is very clear on the above aspect of the matter and

there is no ground to take a different view.The view taken by the

learned trial Court after analysing the statement of the prosecutrix and

the other evidence on record, is well founded. It is pertinent to mention

here that after passing of the aforesaid order by the learned trial Court,

no further progress has taken place in the trial of the case and, as such,

there has been no perceptible change in the circumstances of the

case.Thus, there is no fresh material and further developments in the

case as to impel this Court to take a different view in the mater so far as

the merits of the prosecution case is concerned.

13 Having observed that there is material on record of the trial

Court to prima facie connect the petitioner to the alleged crime of rape,

there can be no dispute to the fact that rape is a heinous crime which

entails punishment up to life imprisonment. The offence of rape not

only destroys the victim physically, but it shatters her mentally as well.

So a lenient view in such like matters is out of question.

8Bail App No.190/2020

14 Coming to the question of grant of bail on health grounds, it has

been contended by learned senior counsel for the petitioner that the

petitioner is suffering from a life consuming disease of cancer and he

does not get proper treatment while in jail and, as such, he deserves to

be enlarged on bail. It is true that there is material onrecord to show

that the petitioner is suffering from malignancy (lymphoma) and there

is also material on record to show that he has undergone twelve cycles

of chemotherapy, but the petitioner has not placed on record any latest

medical record to show that his condition has deteriorated in jail. The

medical certificates placed on record by the petitioner pertain to the

year 2014. The petitioner has been in incarceration for the last three

years and there is nothing on record to show that his health condition in

the jail has deteriorated. From a perusal of the trial Court record, it is

revealed that repeated directions have been issued by the learned trial

Court to the jail authorities to ensure that the petitioner gets proper

medical care during his incarceration. Therefore, a case for grant of bail

on medical grounds is not made out.

15 Lastly, it has been vehemently contended by the learned senior

counsel for the petitioner that the trial of the case is almost complete

and there is no justification for keeping the petitioner in jail. He has

further contended that simply because the petitioner is a Judicial

officer, an example is being made out of him by treating his case

harshly in the matter of grant of bail.

16 It is true that the statements of most of the prosecution witnesses

including the statement of prosecutrix stands already recorded, but then 9Bail App No.190/2020

that does not give the petitioner a vested right to grant of bail,

particularly in a case of rape. In cases of such like nature, bail can be

granted only if, prima facie, it is shown from the evidence led by the

prosecution that the allegations against the accused are false. As

already discussed, the present case is not of such a nature.

17 The fact that the petitioner is a Judicial officer, a person in the

position of authority and the victim happens to be a person from the

lowest strata of the society, makes the crime more serious. The position

of accused vis-a-vis the victim is an important factor while considering

a bail application. Higher the status of a person, greater is the standard

of conduct expected by the society from him. Therefore, more

responsibility lies on the persons holding high offices like that of a

Judge to remain above board in their public as well as private life. A

judgment or order of a Court of law derives its authority and respect not

only from the quality it possesses but also from the integrity and

rectitude of its author. Once a Judge falls off from ethical and moral

standards, his judgments and orders are viewed with suspicion.

Therefore, when a Judicial Officer is implicated in an offence of rape,

which does involve moral turpitude, the Courts cannot treat it as any

other routine case of rape, but the same has to be dealt with ona

different footing with more severity and all seriousness. Therefore, this

Court does not find any merit in the argument of learned counsel for the

petitioner that unduly harsh treatment is being given to the petitioner in

the matter of grant of bail in his favour.

10Bail App No.190/2020

18 For the forgoing reasons, I do not find any merit in this petition.

The same is, accordingly, dismissed. However, having regard to the

fact that the petitioner is in custody for the last about three years, the

learned trial Court is directed to take resort to physical hearing of this

particular case and conclude and decide the case within a period of two

months from the date, copy of this order is made available to it.

Copy of this order be sent to the learned trial Court for

information and compliance.

(SANJAY DHAR) JUDGE

Jammu

29. 01.2021 "Sanjeev, PS"

                                         Whether the order is speaking:       Yes
                                         Whether the order is reportable:     Yes




SHIVALEE KHAJURIA
2021.01.29 15:33
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integrity of this document