Jammu & Kashmir High Court
Crlm Nos. 409/2022 & 783/2022 vs Ut Of J&K And Anr on 13 October, 2022
S. No. 53
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU 1.
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B.A. No. 109/2022
CrlM Nos. 409/2022 & 783/2022
Reserved on: 10.10.2022
Pronounced on: 13.10.2022
Mohd. Rashid and ors. ....Petitioner/Appellant(s)
Through :- Mr. Rajat Sudan, Advocate vice
Mr. Anil Sethi, Advocate.
V/s
UT of J&K and Anr. ....Respondent(s)
Through :- Mr. Adarsh Bhagat, GA.
7.
I/O, ASI-Ikhlaq Hussain is present in person.
Coram:
HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
ORDER
1. Applicants/petitioners have invoked jurisdiction of this Court in terms
of Section 438 Cr.P.C for grant of bail in anticipation of their arrest in case FIR
No. 40/2022 dated 06.03.2022 for commission of offences under Sections 376-D
and 109 IPC, registered with Police Station, Poonch at the instance of
victim/prosecutrix.
2. It is averred, that by resorting to provisions of Section 156(3) Cr.P.C
with malafide intensions and out of vendetta against the applicants, the aforesaid
case has been registered against applicants/accused for the allegations that the
victim/prosecutrix was raped by the accused Nos. 1 and 4 on 19.05.2021 at about
6 P.M whereas the said case has been lodged by the victim as a counterblast to
earlier FIR No. 0079/2021 for commission of offences under Sections 452, 376 and
109 IPC lodged by the wife of applicant No. 2 against husband of the victim; more
so, the Deputy Superintendent of Police has also conducted inquiry, wherein the
said officer has obtained CDR and tower location of the victim/complainant's
mobile phone and it was found that the victim/complainant remained at her house
for whole of the day and was talking to her husband over the phone continuously
on the said day; that the inquiry officer has obtained CDR and tower location of the
applicant No. 1, who was located at Seri and Lasana places; that the provisions of
anticipatory bail have been enacted only for such like cases, where a person is
apprehending involvement in false, frivolous and motivated cases and deserves
protection from illegal incarceration and harassment at the hands of the police; the
applicants/petitioners undertake to abide by all such terms and conditions imposed
by this Court, if granted bail.
3. Respondent No. 1 has filed response/objections, contending therein
that the applicants have committed crime against women which is not only a crime
against victim, but also against the State; in case bail is granted to the
applicants/accused it will definitely influence important and vital witnesses of the
case; the victim was got medically checked up at District Hospital Poonch
regarding rape and the medical report obtained from the Medical Officer shows
that there is evidence of sexual intercourse in the present case; the statement of the
victim has been recorded before the Sub-Judge, Special Mobile Magistrate, Poonch
under Section 164-A Cr.P.C, which depicts that when the victim/prosecutrix was
coming from Seri Chowana towards Kalai and reached near crusher at Kalai,
applicants/accused Nos. 1 and 4 namely, Mohd. Rashid and Sadam Hussain sitting
along the roadside restrained the victim in the way, applicant/accused No. 4
(Sadam Hussain) blocked her mouth took her away and held her hands and legs,
while applicant/accused No. 1, namely, Mohd. Rashid committed rape upon her
forcibly and without her consent, both the accused are absconded after commission
of offences and search is going on for effecting their arrest by S.I, namely, Ikhlaq
Hussain.
4. Learned counsel for the applicants/accused has vehemently argued,
that the impugned FIR bearing No. 40/2022 for commission of offences under
Sections 376-D and 109 IPC, registered with Police Station, Poonch is a
counterblast to the earlier FIR No. 0079/2021 for commission of offences under
Sections 452, 376 and 109 IPC registered by the wife of applicant No. 2 against
husband of the victim and all the allegations against the applicants/accused are
false and vague. It is argued, that as per the statement of the victim/prosecutrix
recorded before the Sub-Judge, Special Mobile Magistrate Poonch dated
28.03.2022, the occurrence is of 19.05.2021, whereas the FIR has been lodged in
Police Station, Poonch on 06.03.2022 after delay of more than nine months
(270 days) and even the statement of victim/prosecutrix has been recorded on
28.03.2022 after delay of more than twenty days (28) from the date of registration
of the FIR, which speaks volume about the frivolity of the prosecution case against
the applicants/accused.
5. Learned counsel for the respondents has argued, that the
applicants/accused are involved in a gang rape case, which is not only against the
victim/prosecutrix but against the society at large, rape is a heinous crime in the
society which demolishes the dignity and honour of the victim, the punishment
provided for gang rape is upto rigorous imprisonment for a term, which is not less
than twenty (20) years, which may extend to life imprisonment, the Court should
not be lenient in granting bail to the accused involved in crime against women.
Prayer has been made for rejection of the bail application.
6. Heard and considered. Learned counsel for the respondent No. 1
alongwith his status report/objections has placed on record copy of the statement of
the victim recorded under Section 164-A Cr.P.C dated 28.03.2022 which depicts
that the occurrence has taken place on 19.03.2021, wherein only accused Nos. 1 &
4, namely, Mohd. Rashid and Sadam Hussain have participated in the crime, as
accused No. 4 caught hold of the victim/prosecutrix, while accused No. 1 has
committed rape upon her. There is no allegation against other accused Nos. 2, 3
and 5, namely, Mohd. Shabir, Mumtaz Ahmed and Lal Hussain. Copy of the FIR
annexed as Annexure-1 with the bail petition depicts that occurrence has taken
place on 19.05.2021 at about 1800 hours, whereas the report has been lodged by
the victim/prosecutrix in Police Station Poonch on 06.03.2022, after delay of more
than nine months (270 days). In AIR 2013 Supreme Court 1497 (Rajesh Patel vs.
State of Jharkhand), the 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.
7. Applying the ratio of the judgment (supra) to the facts of the case in
hand, it is pertinent to reiterate here, that against the applicants/accused, FIR has
been lodged by prosecutrix/victim after a delay of more than nine months
(270 days), which has remained unexplained, thereby, making a strong case for
grant of anticipatory bail in favour of applicant/accused. Accordingly, it is ordered,
that in the event of arrest of applicants/accused in FIR No. 40/2022 dated
06.03.2022 for commission of offences under Sections 376-D and 109 IPC,
registered with Police Station, Poonch, they shall be admitted to interim
anticipatory bails in the sum of Rs. 50,000/- each, subject to their furnishing of
sureties & personal bonds in the sum of Rs. 50,000/- to the satisfaction of the IO
concerned, with the conditions, (i) that the applicants/accused shall fully cooperate
with the investigation of the case as and when required by the Investigating
Officer, (ii) that the applicants/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 or any police
officer, (iii) that the applicants/accused shall not tamper with the evidence or
hamper investigation, & (iv) that the applicants/accused shall not leave the
territorial jurisdiction of this Court without prior permission.
8. Bail application is, accordingly, disposed of along with connected
applications.
(Mohan Lal)
Judge
Jammu
13.10.2022
Ram Krishan
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
