Ishfaq Ahmad Khan vs Ut Of J&K
2021 Latest Caselaw 1242 j&K/2

                                 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                                  AT JAMMU


                                                                       Reserved on:01.10.2021
                                                                     Pronounced on:06.10.2021

                                                  Bail App. No.92/2021

                           ISHFAQ AHMAD KHAN                               ...PETITIONER(S)
                                     Through: Mr. Tawheed Ahmad, Advocate.

                           Vs.

                           UT of J&K                                     ....RESPONDENT(S)
                                     Through: Mr. Irfan Andleeb, Dy. AG vice
                                              Ms. Asif Padroo, AAG.

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


                                                        JUDGMENT

1. Petitioner has filed the instant petition under

Section 439 Cr. P. C seeking bail in FIR No.183/2021 for

offences under Section 363, 376 511, 323 IPC and

Sections 7/8 of POCSO Act registered with Police Station,

Kulgam.

2. It is contended that a false and frivolous FIR has

been registered against the petitioner and that he is not

involved in any offence. It is further averred that the

petitioner had approached the Court of learned Sessions

Judge, Kulgam, for grant of bail but the learned Sessions

Judge without appreciating the statement made by the MOHAMMAD ALTAF BHAT 2021.10.06 14:11 I attest to the accuracy and integrity of this document

prosecutrix during investigation of the case dismissed

bail application of the petitioner by treating the role of

the petitioner at par with that of co-accused. It has been

urged that the petitioner has been put behind bars

without there being any material on record to implicate

him in the alleged occurrence. The petitioner has

undertaken to abide by all conditions that may be

imposed by this Court in case he is admitted to bail.

3. After issuance of notice of this bail application to

the respondents, time was sought by learned AAG to file

response but despite availing several opportunities no

response has been filed on behalf of the respondents.

4. In compliance to the guidelines laid down by this

Court in Badri Nath v. Union Territory of J&K (Bail

App No.139/2020 decided on 11.12.2020), notice was

issued to the victim through her father, who appeared in

response to the said notice before the Court and

submitted that they have no objection in case bail is

granted to the petitioner.

5. I have heard learned counsel for the petitioner and

learned AAG appearing for the respondents. I have also

gone through the material on record.

MOHAMMAD ALTAF BHAT 2021.10.06 14:11 I attest to the accuracy and integrity of this document

6. The facts emerging from the charge sheet filed

against the petitioner and co-accused before the trial

court, a copy whereof has been placed on record by the

petitioner, are that on 29.07.2021, the complainant, the

father of the victim, lodged a written report before Police

Station, Kulgam alleging therein that his daughter has

been kidnapped by the accused including the petitioner

herein and that the accused had attempted to commit

rape upon her. On the basis of said report, FIR

No.183/2021for offences under Section 363, 376 511,

323 IPC and Sections 7/8 of POCSO Act was registered

by Police Station, Kulgam, and investigation of the case

was set into motion, whereafter charge sheet came to be

filed against the accused including the petitioner herein

before the trial court.

7. As per contents of the charge sheet, on the fateful

day at about 9.00AM, the victim girl left her house for her

school. At about 12.30 PM, the victim, a minor girl,

started to proceed back towards her home but on the

gate of the school, accused confronted her and asked her

to board a red coloured Swift vehicle which was resisted

by the victim where-after she was forcibly made to sit in

the vehicle and kidnapped from there. It is further alleged

in the charge sheet that the accused tried to commit rape MOHAMMAD ALTAF BHAT 2021.10.06 14:11 I attest to the accuracy and integrity of this document

upon the victim, outraged her modesty and gave a

beating to her resulting in injuries to her. The charge

sheet goes on to allege that when the victim raised alarm,

the accused left her on Bye-pass Road near Chawalgam.

During investigation of the case, the victim was subjected

to medical examination and her statement and that of

her father were recorded before the Magistrate under

Section 164 of Cr. P.C. After investigation of the case,

offences under Section 363, 376 511, 323 IPC and

Sections 7/8 of POCSO Act were found established

against the accused persons including the petitioner

herein.

8. It appears that the petitioner along with co-accused

had moved the Court of first instance i.e., Principal

Sessions Judge, Kulgam, for grant of bail. However, the

application was dismissed by the learned Sessions

Judge, in terms of order dated 26.08.2021 on the ground

that gravity of offence alleged to have been committed by

the accused/petitioner is serious and that if the

petitioner is released on bail, it will have adverse impact

on the society on large especially in the context of

woman's education, her dignity and her empowerment.

9. The first contention that has been raised by the

MOHAMMAD ALTAF BHAT respondents is with regard to maintainability of the bail 2021.10.06 14:11 I attest to the accuracy and integrity of this document

petition. It has been contended that successive bail

applications are not maintainable and once the Court of

first instance has rejected the bail petition of the

petitioner, it is not open to him to file another application

without any charge in circumstances.

10. The law on this issue is very clear that if an earlier

application was rejected by an inferior court, the superior

court can always entertain the successive bail

application. In this behalf, it will be profitable to quote

the following observations of the Supreme Court in the

case titled Gurcharan Singh & Ors vs State (Delhi

Administration), AIR 1978 SC 179:

"It is significant to note that under Section 397, Cr.P.C of the new Code while the High Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under sub-section (3) of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This is the position explicitly made clear under the new Code with regard to revision when the authorities have concurrent powers. Similar was the position under Section 435(4), Cr.P.C of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although, under Section 435(1) Cr.P.C of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court's jurisdiction in revision was left untouched.

There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under Section 439(2), Cr.P.C to cancel bail after the Sessions Judge had been moved and MOHAMMAD ALTAF BHAT an order had been passed by him granting bail. The 2021.10.06 14:11 I attest to the accuracy and integrity of this document

High Court has undoubtedly jurisdiction to entertain the application under Section 439(2), Cr.P.C for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr Mukherjee to the contrary.

11. Relying upon the aforesaid observations of the

Supreme Court, the High Court of Bombay in the case

titled Devi Das Raghu Nath Naik v. State, (Crimes

Volume 3 1987 363), has observed as under:

"The above view of the learned Single Judge of the Kerala High Court appears to me to be correct. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr.P.C. The power given by Section 439 to the High Court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise any revisional jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under section 439 Cr.P.C. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High Court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same fact, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singh's case (above)."

MOHAMMAD ALTAF BHAT 2021.10.06 14:11 I attest to the accuracy and integrity of this document

12. From the aforesaid discussion of law on the subject,

it is manifest that the rejection of a bail application by

Sessions Court does not operate as a bar for the High

Court in entertaining a similar application under Section

439 Cr. P. C on the same facts and for the same offence.

The contention of the respondents in this behalf is,

therefore, without any merit and the instant bail

application is held to be maintainable.

13. Before coming to merits of this case, legal position

about the matters to be considered for deciding a bail

application are required to be noticed. These 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, behaviour, 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.

14. When it comes to offences punishable under a

special enactment, such as, POCSO Act, something more

is required to be kept in mind in view of the special

provisions contained in the said enactment. Section 31 of

MOHAMMAD ALTAF BHAT the said Act makes the provisions of the Code of Criminal 2021.10.06 14:11 I attest to the accuracy and integrity of this document

Procedure applicable to the proceedings before a Special

Court and it provides that the provisions of the aforesaid

Code including the provisions as to bail and bonds shall

apply to the proceedings before a Special Court. It further

provides that the Special Court shall be deemed to be a

Court of Sessions. Thus, it is clear that the provisions of

Cr. P. C including the provisions as to grant of bail are

applicable to the proceedings in respect of offences under

the POSCO Act. The present application is, therefore,

required to be dealt with by this Court in accordance

with the provisions contained in Section 439 Cr. P. C.

The other provisions of the POCSO Act, which are also

required to be kept in mind, are Sections 29 and 30,

which read as under:

"29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."

30. Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental stage but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely MOHAMMAD ALTAF BHAT 2021.10.06 14:11 I attest to the accuracy and integrity of this document

when its existence is established by a preponderance of probability".

15. Section 29 quoted above raises a presumption of

commission of an offence under Sections 3, 5, 7 and 9 of

the POCSO Act against a person who is prosecuted for

commission of the said offence, unless contrary is

proved. Similarly, Section 30 quoted above raises a

presumption with regard to existence of culpable mental

state against an accused in prosecution of any offence

under the Act which requires a culpable mental state on

the part of the accused. Again, the accused in such a

case has been given a right to prove the fact that he had

no such mental state.

16. If we have a look on the material annexed to the

charge sheet that has been laid before the Special Court

against the accused, it transpires that during

investigation of the case, statement of the victim as well

as the statement of her father under Section 164 Cr. P. C

has been recorded by the concerned Magistrate. The

victim in her statement has clearly stated that it was co-

accused, Shariq Safdar who made her to board the

vehicle, gagged and kidnapped her from outside her

school. She has further stated that it is the said accused

only who gave a beating to her, tore her clothes and tried

MOHAMMAD ALTAF BHAT to molest her. The victim has not imputed any role to 2021.10.06 14:11 I attest to the accuracy and integrity of this document

other accused i.e., the petitioner herein. The only

reference by her to both the accused is that she spotted

both the accused in a red coloured vehicle when she

came out of her school whereafter she concealed herself

behind a truck but accused Shariq Safdar chased her,

caught hold of her by her hand, gagged her and put her

into the vehicle. She has not attributed any role to the

petitioner in these actions.

17. The father of the victim girl has also stated that he

was told by his daughter that it was only accused Shariq

Safdar who had kidnapped her and threatened to kill her

in case she did not marry him.

18. In the face of the aforesaid material on record and

without commenting upon merits of the case, lest it may

prejudice the case of the prosecution, it appears that,

prima facie, foundational facts that would give rise to the

presumption under Section 29 of the POCSO Act against

the petitioner, are not established in this case. Thus,

prima facie, it appears that the presumption of guilt

against the accused, in these circumstances, may not get

triggered meaning thereby that there is no prima facie

ground to believe that the petitioner has committed the

alleged crime.

MOHAMMAD ALTAF BHAT 2021.10.06 14:11 I attest to the accuracy and integrity of this document

19. The learned Special Judge while rejecting bail

application of the petitioner has not taken trouble to even

apply his mind to the statements made by the victim and

her father under Section 164 Cr. P. C. The learned

Special Judge has proceeded on the assumption that the

victim has implicated both the accused in her statement

and approached the cases of both the accused without

actually appreciating the distinctive features of the roles

played by the two accused. The material on record, as

already discussed, clearly distinguishes the cases of the

two accused. While the victim and her father have clearly

implicated the co-accused but at the same time, they

have stated nothing against the petitioner herein. This

clear distinction between the cases of two accused has

been missed by learned Special Judge while rejecting bail

application of the petitioner. The learned Judge, it seems,

instead of applying his judicial mind to the material on

record has concentrated more on impact of the alleged

crime on the women education. Before considering the

impact of a crime on the society, a Court, while deciding

a bail application, has to form a prima facie opinion as

to the involvement of the applicant in the alleged crime

by applying its mind to the material on record.

MOHAMMAD ALTAF BHAT 2021.10.06 14:11 I attest to the accuracy and integrity of this document

20. For the foregoing reasons, the application of the

petitioner deserves to be accepted. Accordingly, the

application is allowed and the petitioner is admitted to

bail subject to the following conditions:

I. That he shall furnish personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the learned trial court;

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 learned trial court;

                                   IV.        That     they    shall    not       tamper      with
                                              prosecution witnesses.

                           21.      Observations             made   hereinabove         shall      remain

confined to the decision of the instant application only

and shall not be construed as an opinion on the merits of

the case.

(Sanjay Dhar) Judge Srinagar, 06.10.2021 "Bhat Altaf, PS"

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No MOHAMMAD ALTAF BHAT 2021.10.06 14:11 I attest to the accuracy and integrity of this document