Jammu & Kashmir High Court
Reserved On: 17.03.2022 vs Unknown on 30 March, 2022
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 27/2022
CrlM Nos. 121 & 122 of 2022
Reserved on: 17.03.2022
Pronounced on: 30. 03.2022
Pawan Kumar @ Sonu .....Petitioiner(s)
Through :- Mr. Amit Sharma, Advocate
v/s
UT of J & K .....Respondent(s)
Through :- Mr. Adarsh Bhagat, GA
CORAM: HON'BLE MR. JUSTICE M.A. CHOWDHARY, JUDGE
ORDER
30.03.2022
1. Petitioner through the medium of this bail application seeks to be
admitted to bail in a case arising out of FIR No. 07/2022, registered at
Police Station, Poonch for the commission of offences punishable under
sections 354, 294 IPC and section 12 of POCSO Act.
2. Shorn of minute details, prosecution case is that petitioner is the a
neighbourer of the complainant; that when she was studying in 10th class,
the petitioner called her at his home by saying that his wife has some
important work with her and when she went there she found that his wife
was not at home, the petitioner tried to outrage her modesty and she
managed to escape from there; that again when she was at the roof top,
petitioner made wrong gesture and the complainant started crying and
narrated the whole incident to her family.
3. Complainant filed a complaint at Police Station, Poonch on 09.01.2022 in
this regard. During the course of investigation, I.O visited the spot,
prepared site plan, recorded the statements of the witnesses U/S 161
Cr.P.C, thereafter arrested the petitioner on 10.01.2022.
4. Petitioner claims to have moved an application before the Sessions Court,
Poonch, where it was apprised by the concerned clerk that the learned
Sessions Judge was on leave till 13.02.2022; thereafter he approached the
Court of learned CJM, Poonch but he refused to hear the application
without any legal justification, which actuated the petitioner to file the
present application for grant of bail.
5. Respondents filed objections to this petition praying inter alia that the
petitioner is involved in the commission of very heinous offences and is
not entitled to be admitted to bail and prayed that the same be rejected.
6. Heard learned counsel for both the sides and perused the record.
7. Learned counsel for the petitioner vehemently argued that the petitioner
had been arrested on 10.01.2022 by the police and has been in custody
since then; that the continued incarceration of the petitioner runs against
his right of liberty, as the accused is innocent till the charge is proved
against him being the basic cardinal of criminal jurisprudence. He has
further argued that the petitioner has been falsely implicated in a false and
frivolous case by the respondent, purely in active connivance with the
complainant in order to harass the petitioner. He prayed that the
application be accepted and the petitioner be admitted to bail.
8. Mr. Adarsh Bhagat, learned GA, ex adverso, argued that
petitioner/accused is involved in heinous offences and in case bail is
granted to him, it will send wrong message to the society and will also
encourage the criminal minded persons of society. He has further argued
that the statement of the complainant/victim has been recorded U/S 164
Cr.P.C and as per the statement, offences punishable U/Ss 354, 354-D,
509 IPC read with Section 12 of POCSO Act stands proved against the
accused/petitioner. The challan of the case has also been produced in the
Court of law on 14.02.2022. It was prayed that the plea of bail, be
rejected, in the interest of justice.
9. Hon'ble the Supreme Court in a case titled "Anil Kumar Yadav vs State
(NCT) of Delhi" reported as (2018) 12 SCC 129 has spelt out some of
the significant considerations which may be placed in the balance in
deciding whether to grant bail. Para 17 of the judgment is profitable to be
extracted for ready reference:-
"17. While granting bail, the relevant considerations are:-
(i) nature of seriousness of the offence;
(ii) character of the evidence and circumstances which are
peculiar to the accused;
(iii) likelihood of the accused fleeing from justice;
(iv) the impact that his release may make on the
prosecution witnesses, its impact on the society; and
(v) likelihood of his tampering. No doubt, this list is not
exhaustive. There are no hard and fast rules regarding
grant or refusal of bail, each case has to be considered
on its own merits. The matter always calls for judicious
exercise of discretion by the Court."
10. Petitioner is accused of the offences punishable under sections 354,354-D,
509 IPC and section 12 of POCSO Act. Offence U/S 354 IPC is
punishable for imprisonment for a term which shall not be less than one
year but which may extend to five years and shall also be liable to fine;
offence U/S 354-D IPC is punishable for imprisonment for a term which
may extend to three months and shall also be liable to fine and be
punished on a second or subsequent conviction with imprisonment for a
term which may extend to five years and shall also be liable to fine;
offence U/S 509 IPC is punishable for simple imprisonment for a term
which may extend to three years and also with fine; and offence U/S 12 of
POCSO Act is punishable for imprisonment for a term which may extend
to three years and shall also be liable to fine. Petitioner was stated to be a
married person, whereas victim is stated to be a child. Offence under such
circumstances has to be considered in this backdrop.
11. POCSO Act has been enacted by the Parliament to protect the children
from sexual offences. The alleged crimes against children are not to be
treated as a matter of course. It is the duty of Law Enforcing Agencies and
the Courts to ensure that this legislation is enforced with all its vigor and
rigor. Petitioner is yet to be charge-sheeted. His release will be
detrimental to the smooth trial of the case against him, till the
complainant/victim and the material witnesses are examined. Petitioner in
case of grant of bail may try to influence the prosecution witnesses to
tamper the evidence against him to ensure acquittal. Grant of bail to the
petitioner at this stage, instead of enhancing the course of justice shall
thwart the same for the afore-stated reasons.
12. For the foregoing reasons and the observations made hereinabove, this
petition for grant of bail moved by the petitioner, is found devoid of any
merit and substance and is liable to be dismissed.
13. Bail Petition along with pending application(s), if any, is thus, dismissed.
(M.A. Chowdhary)
Judge
JAMMU
30.03.2022
Vijay Whether the order is speaking: Yes
Whether the order is reportable: Yes
