Mohd. Mushtaq And Another vs Union Territory Of J&K And Another
2021 Latest Caselaw 1401 j&K

 HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                  AT JAMMU
                                                 Reserved on 27.10.2021
                                                 Pronounced on 03.11.2021

                                             Bail App No. 213/2021 (O&M)


Mohd. Mushtaq and another                          .....Appellant(s)/Petitioner(s)


                     Through: Mr. Irfan Khan, Advocate
                Vs

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


                     Through: Mr. Vishal Bharti, Dy. AG


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

                                JUDGMENT

1. The present application has been filed by the applicants/petitioners

for grant of bail in FIR bearing No. 75/2021 dated 21.02.2021 for

commission of offences under sections 376, 452, 323 and 506 IPC

registered with Police Station, Udhampur at the instance of

respondent No. 2, who happens to be the wife and sister in law of the

petitioner Nos. 1 and 2 respectively.

2. The petitioners had earlier filed the bail application for grant of bail

before the learned Additional Sessions Judge, Udhampur (hereinafter

to be referred as the trial court) but the same was dismissed by the

learned trial court vide order dated 20.07.2021.

3. The petitioners are seeking bail on the ground that the FIR under

reference has been lodged by the respondent No. 2 as a counter blast

to the FIR bearing No. 69/2021 dated 18.02.2021 for commission of

offence under section 376 IPC lodged by the sister of the petitioners

against the brother of the respondent No. 2 and other persons. It is

further stated that the Uncle of the respondent No. 2 who is serving

in the Police Department has managed the harassment of the

petitioners by using his official clout. The respondent No. 2 had

earlier approached the Women Cell, Udhampur and the Women Cell

Udhampur started calling the petitioners as well as other family

members on consecutive days in the Police Station and as such,

except petitioner No. 1, all other family members filed the writ

petition before this Court, titled Noor Bibi and others vs Union

Territory of J&K whereby this Court vide order dated 17.11.2020

directed the respondents therein not to harass the petitioners. It is

further stated that as soon as the said order was passed by this Court,

the FIR bearing No. 26/2020 dated 26.11.2020 was registered under

sections 498-A and 323 IPC against the petitioners and other family

members which forced them to challenge the same before this Court

and this Court vide order dated 04.12.2020 directed the respondents

therein not to harass the petitioners and further not to file the challan

without prior permission of this Court.

4. The petitioner No. 1 filed a complaint dated 21.11.2020 under

sections 107 and 109 Cr.P.C. before the Tehsildar (Executive

Magistrate), Udhampur and the respondent No. 2 and her family

members were asked to show cause as to why they not be directed to

furnish bonds.

5. The petitioners' case is that in order to further harass them, the wife

of the petitioner No. 1, respondent No. 2 herein, lodged a false and

frivolous FIR and arrayed the petitioner No. 2 as accused also in the

said FIR whereas the fact remains that the petitioner No. 2 was

serving in the Armed Wing of the Police Department and in the night

intervening 05.02.2021 and 06.02.2021, the petitioner No. 2 was

very much present on guard duty from 10 PM to 2 AM in his Unit at

IRP 7th Bn Seri Amb Gharota Jammu and the time that was given by

the respondent No. 2 in the impugned FIR is 3.00 AM dated

06.02.2021 and it is practically not possible to reach at Balli Nallah

in Udhampur within one hour which is near about 95 Kms from the

place of deployment of the petitioner No. 2.

6. The petitioners have placed on record copy of the FIR under

reference, copy of the FIR lodged by the sister of the petitioners, the

copy of the orders passed by this Court in the writ petition as well as

copy of the petition challenging the FIR registered under section

498-A and 323 IPC of Police Station, Women Cell, Udhampur and

the copy of the FIR that was challenged by the family members of

the petitioner No. 1 and petitioner No. 2.

7. The response stands filed by the respondent No. 1 in which besides

narrating factual facts, it is stated that the petitioners are involved in

a heinous offences and the investigation stands completed and the

challan in the instant case is to be produced in the court of law very

shortly.

8. Mr. Irfan Khan learned counsel for the petitioners has submitted that

the challan for commission of offence stands filed whereas Mr.

Vishal Bharti, learned, Dy. AG appearing for the respondent No. 1

has vehemently submitted that the petitioners are involved in a

commission of heinous offence, as such, they are not entitled to bail.

9. The facts as they emanate from the record are that the FIR bearing

No. 75/2021 (supra) was registered on 21.02.2021 for commission of

offence under sections 376, 452, 323 and 506 IPC pursuant to the

direction passed by the concerned Magistrate under section 156(3)

Cr.P.C. It is stated in the FIR that on 06.02.2021 at about 3 AM, the

petitioner No. 1 along with petitioner No. 2 and two others persons

not known but she can identify came from Jammu in a vehicle

bearing registration No. JK14F 9298 (ECO) and entered the

matrimonial house at Balli, Tehsil Udhampur where the respondent

No. 2 had been residing with her two minor children and all the

accused persons therein administered beating to the respondent No. 2

and thereafter, the petitioner No. 1 asked the other persons to remove

all the clothes of the respondent No. 2 so that the lesson be taught to

her and all the accused persons forcibly committed the rape upon

respondent No. 2 and on raising hue and cry, some villagers rescued

her.

10. Heard and perused the record.

11. From the record, it is evident that there are multiple litigations going

on between the petitioners and the respondent No. 2 and the

petitioner No. 1 happens to be the husband of respondent No. 2 and

the petitioner No. 2 is the brother in law of respondent No. 2. As per

response filed by respondent No. 1, the investigation has been

completed, however, it is not disputed that the challan stands filed

against the petitioners as stated by counsel for the petitioners.

12. Without commenting upon the merits of the case and taking into

consideration that there are multiple litigations going on between the

petitioners and the respondent No. 2 and the brother of the

respondent No. 2 is an accused in FIR bearing No. 69/2021 (supra)

under section 376 dated 18.02.2021 and further that FIR under

reference wherein the petitioners were arrested, was registered on

after 15 days of the alleged occurrence i.e. 21.02.2021, the

petitioners deserve to be enlarged on bail.

13. It is also noticed that the learned trial court has rejected the bail

application primarily on the ground that there is possibility of giving

threat to the witnesses. It is beyond doubt that both the petitioner No.

1 and the respondent No. 2 have indulged in multiple litigations and

at this stage, whether the allegations levelled against the petitioners

are true or not cannot be ascertained and can be ascertained during

the course of trial, however, the apprehension as expressed by the

learned trial court can be taken care of by imposing appropriate

conditions while granting bail to the petitioners.

14. As such, it is ordered that the petitioners be released on bail on the

following conditions:

(i) that subject to furnishing of two solvent sureties to the tune of Rs.

50,000/- each to the satisfaction of the trial court and personal

bond of the like amount.

(ii) that they shall not contact with any of the prosecution witnesses

during the trial by any manner either physically or through any

other mode.

(iii) that they shall appear before the trial court on each and every date

of hearing.

15. In the event of violation of any of the conditions mentioned above,

the official respondent can lay a motion for cancellation of bail of the

applicant/petitioner before this Court.

16. Disposed of.

(RAJNESH OSWAL) JUDGE

Jammu 03.11.2021 Rakesh

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