S. No. 08 vs Union Territory Of Jammu & Kashmir
2023 Latest Caselaw 21 j&K

                                                                      S. No. 08

           HIGH COURT OF JAMMU & KASHMIR AND                            LADAKH
                         AT JAMMU          1.
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                                                          Bail App No. 253/2022
                                                          Reserved on:- 16.12.2022
                                                          Pronounced on:- 30.01.2023
Badri Nath aged 59 years S/o Jagdish Kumar R/o                          ....Petitioner(s)
Kartholi Tehsil Baribrahmna District Samba
(through his Wife Anita Devi).
          Through :- Mr. Muzaffar Iqbal Khan, Advocate
                     Mr. Umar Aijaz Gattu, Advocate
                  V/s
1.        Union Territory of Jammu & Kashmir                          ....Respondent(s)
          through Superintendent of Central Jail
          Kotbhalwal Jammu;
2.        S.H.O, Bari Brahmna.
          Through:-   Mr. Vishal Bharti, Dy AG
     7.




Coram: HON‟BLE MR. JUSTICE MOHAN LAL, JUDGE
                                 O R D E R

1. Petitioner has sought regular bail in terms of Section 436A/439 of the Code of Criminal Procedure (hereinafter referred as the „code‟) in case FIR No. 40/2020 registered with Police Station Bari Brahmna District Samba for infraction of provisions contrary to the offences punishable under Sections 354A/452/506 IPC r/w Section 8 of POCSO Act. It is averred, that petitioner has been implicated in false and frivolous case although he has not committed any offence nor is involved in the commission of any such offence; that he is a peace loving and law abiding citizen of India and permanent resident of UT of J&K hence entitled to the constitutional, fundamental, legal and statutory rights available to him under the Constitution and Criminal Procedure Code; that the petitioner is a under trial prisoner and is behind the bar for the last more than two (2) years without any fault on his part; that after the production of challan in the aforesaid FIR before the Court of learned Principal Sessions Judge Samba on 18.07.2020 the prosecution has produced all the material witnesses thereby leaving no scope of tampering the witnesses; that the petitioner had earlier moved an application for regular bail before the Court of learned Sessions Judge Samba who vide order dated 02.07.2022 rejected the bail application inter-alia on the grounds that the witnesses are yet to be

examined. It is moreso averred, that against the said rejection order of the bail, petitioner earlier approached this Court seeking regular bail bearing B.A No. 139/2020 and this Court vide order dated 11.12.2020 also rejected the bail application of the petitioner for the reasons that the victim is yet to be examined by the trial court, now all the material witnesses including the statement of victim has been recorded by the trial court, petitioner being an old age person is suffering from various ailments and has served more than 50% of the maximum punishment prescribed for alleged offence against him, the trial pending before the trial Court is at the stage of recording of the statements of accused u/s 313 Cr.PC and defence witnesses therefore it cannot be expected that petitioner would tamper the evidence, petitioner is ready to furnish personal bond and surety bond to the satisfaction of this Court and undertakes to abide by all the terms and conditions imposed by this court.

2. Respondent/UT of J&K has opposed the bail on the grounds, that accused has committed heinous offence against society and any concession of bail to him would not be in the interest of the society at large. It is contended, that on 22.02.2020 mother of the 12 years age minor girl child alongwith the child appeared before the Child Welfare Committee, as per the statement of the minor girl child, she was staying alongwith her mother and younger brother in her maternal grandmother's house since long, her father is in BSF and at present posted in Chennai, the minor girl child is studying in 7 th standard in Army Public School Kaluchak, that "on 18.02.2020 at about 9 p.m our neighbor uncle Badri Nath came to their house and started talking vulgar and irrelevant things with her, her mother was in hospital for her treatment and her younger brother was sleeping, then suddenly uncle Badri Nath rubbed his hands on her mouth and afterwards she started feeling unconsciousness, in that state of semi consciousness the uncle pulled her hand and asked her to sit in his lap and started touching her private parts and tried to pull her towards the roof and told her that let's love and he will come daily to her residence to make love with her, till the time she regained consciousness sensing something very wrong/foul play, she asked uncle to please go to roof and she will come afterwards, then she immediately locked herself in a room and from there she called the son of Badri Nath to help her narrating him the whole incident, after few minutes the son of Badri Nath came alongwith his family members and everyone started threatening her for not telling this to anyone", the said information was conveyed to police who took the cognizance and registered FIR against the petitioner for commission of offences u/ss 354-

A/506 IPC r/w 8 POCSO Act and after investigation produced the charge sheet against petitioner before the trial court of Ld. Pr. Sessions Judge on 18- 07-2022, prayer has been made for rejection of the bail.

3. Ld. Counsel for petitioner urging his release on bail, has canvassed arguments, that petitioner is peace loving citizen of the country and has been implicated in false and frivolous case, petitioner is a an under trial prisoner and is behind the bar for the last more than two (2) years without any fault on his part, all the material witnesses including the victim have been examined by the trial court therefore the possibility of the prosecution witnesses being tempered or win over by the petitioner is completely ruled out, petitioner has served more than 50% of the maximum punishment prescribed for alleged offences indicted against him. Prayer has been made for enlargement of the petitioner on bail.

4. Ld. Dy. AG for the respondents has strenuously opposed the grant of bail by portraying arguments, that petitioner/accused in involved in heinous crime against 12 years old minor victim which is against society at large, therefore, petitioner does not deserve the leniency of bail. It is argued, that under the provisions of POCSO Act, in terms of Section 29 the court shall presume that petitioner/accused has committed or abetted the commission of offences against him unless the contrary is proved by him in his defense, the nature and character of evidence adduced by the prosecution against petitioner/accused is so serious that there is reasonable apprehension that if enlarged on bail petitioner/accused would give a slip to law thereby thwarting the course of justice, the present case is of huge public importance as such the bail application requires to be dismissed and rejected out rightly.

5. I have heard Ld. Counsel for parties, gone through the contents of bail application and objections filed thereto by the respondents and have also gone through the relevant law on the subject matter. The principles which generally govern the grant of bail are relatable to, (i) Seriousness of allegations, severity of punishment, the character of evidence on which the charges is supposed to be sustained, tempering and intimidating of witnesses and chances of running away from the trial, (ii) False implication of the accused, allegations leveled not believable and the wrecking vengeance for political or business reasons. It is also to be noted that at the stage of granting bail, the court can only go into question as to whether a prima-facie case is established against the accused

and cannot go into the evidentiary value, creditability and reliability of the witnesses. In light of the principles laid down above, the plea projected by ld. Counsel for the petitioner in the bail application requires to be examined generally. Petitioner is indicted for commission of offences u/ss 354A/452/506 IPC r/w Section 8 of POCSO Act. Charge sheet has been laid in the court of Ld. Principal Sessions Judge Samba on 18.07.2020. Charges have been framed against the petitioner which he has denied and has preferred the trial. The prosecution so far has examined all the prosecution witnesses listed in the calendar of witnesses in the charge sheet and the instant case is at the stage of recording of the statements of accused under the scheme of Section 313 (342) Cr.pc by the trial court. In a case law reported in 2010 (3) JKJ 129 (HC) (Jagdish Kumar & Ors Versus State & Ors) J&K High Court while granting the bail to the accused charged for commission of offence u/s 306/498-A RPC, and while discussing the principles of "prima- facie case", "question of influencing the prosecution witnesses"& "approach of the court in granting bail in non-bailable offences", in paras 17, 18 & 19 of the judgment held as under:-

"17.While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other circumstances. Even where a prima-facie case is established, the approach of the court in the matter of bail, is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence.

18. The circumstances which have been brought into focus by the respondents as also by the learned sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the learned Principal Sessions Jude to substantiate this plea. It is mere bald assertion, which cannot be accepted unless there is some material to that extent.

19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which

cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent.

Ratio of the judgment (Supra) makes the legal proposition manifestly clear, that even if prima-facie case is established, the approach of the court in granting bail should be that the accused should not be detained by way of punishment and regarding influencing of witnesses, the material witnesses viz; prosecutrix and her parents cannot be expected to be win over by the accused.

In another case law reported in 2016(2)J.K.J 702, J&K High Court, [Arjun Katal and Ors. versus State of J&K & Ors.] J&K High Court while granting bail to accused for offences u/ss 498A,304B & 306 RPC & while observing that refusal of bail would amount to punishing the petitioner without trial, in Head Note "B" & paras 17,25 & 26 of the judgment held as under:-

B. Criminal Procedure Code, Svt., 1989, Section 487C-Ranbir Indian Penal Code, Svt.,1989,Section 498A,304B and 306- Dowry death-Grant of bail-Entire evidence implicating whole family cropped up after incident-No indication of earlier ever domestic violence or incident of harassment, violence relating to demand of dowry by petitioners- Bar under proviso of Section 497C not attracted- Petitioner husband and mother- in-law in custody for more than one years-Refusing bail nothing but punishing petitioners for alleged involvement in death of deceased -Bal allowed.

17. In the case on hand, it has been noticed that the marriage of the couple had taken place more than two years prior to the unfortunate incident. The marriage had procreated a male child. There seems substance in the argument of learned counsel for the petitioners that entire evidence implicating the hole family including parents-in-law and brother-in-law of the deceased, besides the husband, cropped up after the incident and that the material collected by the I.O. does not indicate that earlier ever there had been any report of any domestic violence or an incident of harassment and violence relating to demand of dowry by the petitioners and also that the I.O did not even investigate whether the brother-in-law was also present in the house during those days or not.

25. Experience would show that whenever a woman dies an unnatural death shortly after her marriage or within seven years of the marriage, her parents feel that her husband and in-laws are responsible for such death. That feeling of the parents of the deceased itself becomes a sufficient ground for booking the husband and the parents and quite often siblings and other relatives of the husband. Whether they were responsible for the death of the deceased or not can be ascertained only after investigation and verified after trial but they are arrested in any case. The important question relating to their liberty, thus, arises for consideration of the bail/trial court.

26. As said above, petitioners had been and presently two of them, that is mother-in-law and husband of the deceased are in custody for last more than one year. Charges against them have been framed by the trial court on 07.09.2015. Minutes recorded in the trial court file would show that but for one witness whose statement has been recorded on 22.12.2015, prosecution has not produced any other witnesses or even parents of the deceased during three or four calendars fixed by the court. The accusations do not merit refusal of bail to the mother-in-law and the brother-in-law of the deceased at this stage after more than a year of their arrest. All the material witnesses are family members of the parents of the deceased inasmuch as no apprehension of the petitioners‟ tampering with the evidence or jumping over the bail has been expressed by the State nor can be visualized. Refusing bail to them at this stage would be nothing but punishing them for their alleged involvement in the death of the deceased which is not permissible under law.

Ratio of judgment (Supra) further makes the proposition of law abundantly clear, that refusing bail is nothing but punishing the accused, whether the accused is responsible for the death of the deceased has to be verified during trial and material witnesses viz; family members of deceased cannot be win over. Ratios of the judgments of "Jagdish Kumar‟s Case" & "Arjun Katal‟s Case", (Supra) settles the legal controversy at rest and makes it abundantly clear, that the approach of the court in matter of bail should not be that accused should be detained by way of punishment but whether his/her presence would be readily available for trial & material witnesses viz; family members of the deceased cannot be win over.

6. Applying the ratios of the judgments (Supra) to the facts of the bail application in hand, it is unambiguously reiterated here, that none of the offences indicted against petitioner u/ss 354A/452/506 IPC r/w Section 8 of POCSO Act are punishable with imprisonment for life or death penalty. U/S 8 of POCSO Act of 2012, the imprisonment against petitioner if found guilty and convicted, would be not less than 3 years but may extend to 5 years. Petitioner for the last more than 2 ½ years is languishing in Central Jail Kot Bhalwal Jammu and therefore even half of the imprisonment u/s 8 has already been suffered by the petitioner although till date has not be held guilty and convicted. The charge sheet before the trial court of Ld. Pr. Sessions Judge Samba is at the stage of recording of statements of accused/petitioner under the Scheme of Section 313 (342) Cr.pc, therefore, the apprehension of the prosecution that the prosecution witnesses would be won over or tempered by the petitioner/accused is ruled out. In light of ratios of the judgments (Supra)

the law is no longer res-integra, and it is now settled cardinal principle of criminal jurisprudence that approach of the court in the matters of bail should be that the accused should not be detained by way of punishment which can only be inflicted upon the accused after the regular trial and if he is found guilty. The powers to grant bail has to be considered in the backdrop of the constitutional guarantees contained in Article-21 of the Constitution of India which guarantees right to liberty of an individual [vide Jagir Singh Vs. Jagat Singh & Anr. 2012 (2) JKJ 231 (HC)]. Every accused has right to defend his case and by keeping the accused in detention, it would defeat his right to defend his case. Petitioner in the case in hand cannot be kept in incarceration for an indefinite long period of time as the same would amount to inflicting pre-trial punishment which is against the basic tenets of criminal jurisprudence. Speedy trial is one of the fundamental rights of an accused which could get defeated if the prosecution shows slackness and delay in examining its witnesses, therefore, the trial court is within its bounded duty to concluded the trial expeditiously. The apprehension of the prosecution that petitioner will abscond can be secured by way of sufficient surety from petitioner. Since all the prosecution witnesses including the victim have been examined by the trial court, it cannot be expected that petitioner/accused would win over the prosecution witnesses. In view of the aforesaid discussion, petitioner has carved out a strong case for grant of bail in his favour. Accordingly, petitioner is admitted to bail subject to his furnishing surety bond in the sum of Rs. 50000/- before Registrar Judicial of this court with the direction to furnish personal recognizance of the like amount before Superintendent Central Jail Kot Bhalwal Jammu. However, before parting the following conditions are imposed upon the petitioner:-

(i) that the petitioner shall appear before the trial court on each and every date of hearing except exempted by the trial court;

(ii) that in case the prosecution collects any material that during the bail period petitioner has influenced any of the prosecution witnesses or tried to intimidate them, the prosecution would be well within its rights to move an application before this court for cancellation of his bail;

7. Disposed of accordingly.

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(Mohan Lal) Judge Jammu 30.01.2023 Vijay Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No