Mohd Tariq Age 40 Yrs vs Ut Of J & K & Ors Through Sho P/S
2022 Latest Caselaw 718 j&K

                                                                Sr. No. ...



       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JAMMU
                                                     Bail App No. 12/2022
                                                     CrlM Nos. 49&48 of 2022

                                                     Reserved on   : 06.04.2022
                                                     Pronounced on : 05-05-2022

   Mohd Tariq age 40 yrs S/O Mohd Hussain                       .... Applicant(s)
   Mehboob Ali R/O Manjakote Rajouri
                    Through :- Mr. Mehtab Gulzar, Advocate
            V/s
   UT of J & K & Ors through SHO P/S                          ....Respondent(s)

Reassi and Anr.

Through :- Mr. Ravinder Gupta, AAG for R-1 Mr. S..S Ahmed, Advocate for R-2 Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

ORDE R 05.05.2022

1. In terms of section 439 Cr.pc, applicant has sought indulgence of this court for his release on bail in FIR No. 0152/2021 for commission of offences u/ss 376/420/379 IPC lodged against him by respondent No.2 in Police Station Reasi. It is averred, that applicant is permanent resident of U.T. of J&K and is citizen of India as such in law he is competent to maintain the present application before this court for the enforcement of his fundamental and legal rights guaranteed to him under the constitution and statute, applicant has been falsely implicated by the police in the above said FIR registered on baseless and bogus facts and has been arrested by police, applicant has not committed any offence as alleged in the above said FIR, applicant and private respondent No.2 were in love affair since 2019 whereby applicant spent lockdown time with respondent No.2 in her house and lateron marriage proposal of applicant & private respondent was accepted by the parents of private respondent whereby petitioner and private respondent solemnized marriage with each other as per Islamic Sharia law but the private respondent and her parents were adamant that applicant must stay with them as Gharjamai and on his refusal a false criminal case has been registered against applicant by private respondent who is a police constable. It is averred, that applicant is innocent person and has not committed any offences however impugned FIR for commission of offences of committing sexual intercourse has been registered in the month of March 2020 on the ground of promise to marry after making concealment of the fact of

marriage and execution of Nikah Nama, the impugned FIR has been lodged after a delay of more than one (1) year in the month of March 2020 and no reason for delay has been given, there is no truth in the story narrated by the private respondent, challan has been filed and the trial court has not even framed charges but has rejected the bail whereby applicant is presently lodged in District Jail Udhampur, impugned FIR is lodged to compel the applicant to exceed to the demands and live as Gharjamai, applicant undertakes to present himself before the police/court as and when directed, applicant undertakes that he will not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any police officer, applicant further undertakes not to tamper with the evidence or the witnesses in any manner, he will not leave India without the previous permission is ready and willing to accept and abide by all the terms and conditions as may be imposed by the Court.

2. Respondent No.1 has filed the objections wherein it has been contended that case FIR No. 152/2021 u/ss 376/420/379 IPC has been registered against accused and during investigation I/O has collected sufficient evidence, I/O has recorded the statements of witnesses u/ss 161/164-A Cr.pc, collected DNA test, finger print report, FSL report and submitted before the court of Sessions Judge Reasi which has proved that minor boy Danyal is biological son of accused/applicant Mohd Tariq and victim respondent No.2 (Najma Akhter). It is contended, that applicant committed forcible sexual intercourse/rape upon private respondent by promising her to marry in short time, as a result, private respondent became pregnant, then she informed the accused with hope of getting married, but accused turned furious and extended threats to do away with her life, as a result, victim/private respondent No.2 delivered a baby in the month of July 2021, however, applicant took away cash amounting to Rs. 3.50 lacs alongwith ornaments belonging to private respondent therefore offences against accused for commission of offences u/s 376/506/420/377/201 IPC.

3. Respondent No.2 has filed objections, wherein she has categorically stated that the instant case is not a case of false promise to marry but in fact a case of rape, cheating, theft, criminal intimidation, extortion and marriage on a fake identity whereby applicant has committed atrocities against her therefore concession of bail cannot be granted to such notorious offender. It is contended, that applicant is involved in heinous and non-bailable offences having direct impact on entire

women folk and as well as against society at large, applicant is a fraudster and has approached the court with unclean hands and has defrauded her as well as her family worth Rs. 3.5 lacs, applicant has cooked up false story of having been in live in relationship with respondent No.2, applicant firstly committed rape upon the respondent No.2 and thereafter solemnized fake marriage with her under fake identity, she has delivered a baby after the unfortunate incident and DNA profiling has established that minor baby is a biological child of applicant, applicant is habitual offender and is involved in heinous crime against women, there is likelihood of applicant fleeing from justice and tempering the prosecution witnesses, prayer has been made for rejection of the bail.

4. Heard and considered. As per the copy of FIR annexed with the bail application date of occurrence is 30-10-2019 whereas information has been received in police station on 30-07-2021 by the orders of Ld. CJM Reasi. Therefore, there is delay of about 1 year 9 months in filing the FIR against applicant/accused. Applicant presently is lodged in District Jail Udhampur as he has been arrested on 31-07-2021, and for the last about 9 months he is lying in the detention. Ld. Counsel for applicant has argued, that long and unexplained delay in lodging FIR is fatal for prosecution which gives rise to the suspicion in the FIR making a strong case for grant of bail in favour of the applicant. In 2020 (4) Crimes 469, Supreme Court of India (Sumedh Singh Saini--Petitioner Versus State of Punjab & Another--Respondents), Hon'ble Supreme Court granted anticipatory bail to petitioner/accused involved for the commission of offence u/s 302 IPC on the ground that the FIR was lodged after delay of 29 years of the incident. In AIR 2013 Supreme Court 1497 (Rajesh Patel--Appellant Versus State of Jharkhand--Respondent), Hon'ble Supreme Court set aside the conviction of accused u/s 376 IPC on the ground that there was a delay of 11 days in lodging the FIR and no satisfactory explanation for the delay was tendered by the prosecutrix/victim. Applying the ratios of the judgments (supra) to the facts of the case in hand, it is pertinent to reiterate here, that against applicant/accused FIR for commission of offence of rape has been lodged by prosecutrix/victim (respondent No.2) after a delay of more than 1 year 9 months which has remained unexplained, thereby, making a strong case for grant of bail in favour of applicant/accused. It is beaten law, that even where a prima-facie case is established, the approach of court in matter of bail should be not that accused should be detained by way of punishment but whether presence of accused would be readily available for trial. Moreso, it is trite law that personal liberty

of an accused is very precious fundamental right enshrined in Article-21 of the Constitution of India. A fundamental postulate of criminal jurisprudence is the presumption of innocence, which means that a person is believed to be innocent until found guilty, and that grant of bail is a general rule and refusal is an exception. In the case in hand, there is a huge delay of about 1 year & 9 months in lodging FIR by respondent No.2 for commission of rape by applicant/accused. Alongwith the bail application, a document viz; Nikah Nama is appended by applicant which prima-facie establishes that applicant/accused and respondent No.2 has solemnized marriage, and out of the wedlock as per the admission made by respondent No.2 in her objections she has given birth to a male child which as per the DNA profiling is the biological son of the applicant/accused. In view of the above, without commenting upon the merits of the case, applicant/accused has carved out strong case for bail in his favour. Accordingly, applicant/accused is admitted to bail subject to his furnishing one solvent surety in the sum of Rs. 50000/- before the Registrar Judicial of this Court with the direction to furnish personal bond in the like amount before Superintendent District Jail Udhampur. Before parting, the following conditions are imposed upon the accused:

(i) that the applicant/accused shall attend the trial court on each and every date of hearing except for special circumstances beyond his control and unless exempted by the trial court;

(ii) that the applicant/accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts before the Court.

5. Disposed of accordingly.

(MOHAN LAL) JUDGE Jammu:

05.05.2022 Vijay