Sahil Kumar Age 24 Years vs Union Territory Of Jammu & Kashmir
2023 Latest Caselaw 1049 j&K

Sr. No. 7

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU

Bail App No. 151/2022
Reserved on -- : 19.04.2023
Pronounced on: 22.05.2023

Sahil Kumar age 24 years S/o Sukhdev Kumar, ss... Petitioner(s)
R/o Village Baywan, Tehsil & District Jammu;
(presently lodged in District Jail Ambphalla).

Through :- Mr. Tarun Sharma, Advocate

V/s
1. Union Territory of Jammu & Kashmir .... Respondent(s)

through Soe en ; Home

2.

3. SHO P/S Janipur Jammu;

4, Superintendent « of District J ail Jammu; = ;

5.

dated 15.03.2023).

Through :- Mr. Pawan Dev Singh, Dy. AG.

Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

OR DER 22 - 05 - 2023

1. Petitioner/accused has invoked the jurisdiction of this Court in terms of Section 439 of the Code of Criminal Procedure (hereinafter referred to as the, "Code") for securing bail in FIR No. 61/2021 dated 13.05.2021 registered with Police Station Janipur Jammu for commission of offences

punishable under Sections 363, 376 IPC r/w 3/4 POCSO Act. It is averred,

that petitioner 1s permanent resident of UT of Jammu and Kashmir and peace loving citizen of India, as such, is entitled to all the fundamental, legal and statutory rights as enshrined in the constitution of India; that respondent No.3 in connivance with the complainant and his family has falsely implicated the petitioner in a false and frivolous FIR bearing No. 61/2021, as the petitioner is not involved in the commission of any offence while Police Station Janipur has arrested him on false and frivolous grounds; that respondent No.3 presented the challan before the Court of law which is pending trial before the Court of Fast Track Special Judge (POCSO Cases) Jammu titled UT of J&K v/s Sahil Kumar; that the accused is in custody for

almost 2 years since the registration of FIR on 03-05-2021 and is presently

lodged in the District Jail Ambphalla Jammu; that the petitioner/accused had moved an application for granting of bail before the Court of Fast Track Special Judge (POCSO Cases) Jammu which was rejected vide order dated

11.03.2022. It is moreso averred, that the statement of prosecutrix has been

recorded on 08.03.2022 before the trial Court, which if read alongwith medical report/opinion clearly prove that no case is made out under sections 363, 376 IPC r/w 3/4 of the POCSO Act, which makes further detention of the petitioner illegal and against the principles of criminal jurisprudence and rigor of POCSO Act does not apply in the case in hand; that Dr. Rupali Gynecologist, Govt. Hospital Sarwal Jammu who examined the prosecutrix has clearly mentioned in her report that "there is no marks of violence seen on any part of the body of the prosecutrix including her private part and there is no evidence of fresh intercourse in the recent past at the time of examination"; that the petitioner is ready to furnish bail bonds and surety bonds to the satisfaction of this Court and he also undertakes to abide by all the terms and conditions, if any, imposed by this Court while admitting him to bail.

- Respondent has opposed the bail on the grounds, that the petitioner has committed heinous and grave offences punishable u/ss 363, 376 IPC r/w sections 3/4 of POCSO Act, the trial Court has rejected the bail application of the petitioner due to the gravity of offence and severity of punishment, the successive bail application without making out a case of change in circumstances is not maintainable, as such, the present application preferred by the applicant requires to be dismissed, there is every likelihood that the petitioner if enlarged on bail may influence the prosecution witnesses,

prayer has been made for rejection of the bail.

. Mr. Tarun Sharma, learned counsel while seeking bail for petitioner has

vehemently canvassed arguments, that the statement made by the prosecutrix in the trial Court on 08.03.2022 is total contradictory to her statement made before I/O u/s 161 Cr.pc and before the Magistrate u/s 164-

A, Cr.pe which does not inspire confidence as the same evidence does not

link the petitioner with crime attributed to him. It is argued, that the prosecutrix in her statement dated 08.03.2022 has stated that she has attained the age of 17 years and has admitted that she was under fear of her parents which makes it crystal clear that the earlier statements made before

the relevant authorities by the prosecutrix were made under fear of her

parents, as such, the whole prosecution case is nothing but a case fabricated by the parents of the prosecutrix to wreak vengeance against the petitioner as they were against the marriage of the petitioner with the prosecutrix. It is moreso argued, the Gynecologist Doctor who examined the prosecutrix has clearly opined in her medical report that there are no marks of violence seen on any part of the body and there is no evidence of fresh intercourse, the accused is in custody since for the last 2 years since the date of his arrest on 13-05-2021, the fundamental principle of criminal jurisprudence that "bail is rule" and "jail is an exception" fully applies to the facts of the case in hand, prayer has been made for enlargement of petitioner on bail on the terms and

conditions imposed by this court.

. Mr. Pawan Dev Singh, learned Dy. AG, Per-contra, has strenuously opposed

the grant of bail to the petitioner by portraying arguments, that the offences u/ss 363, 376 IPC & 3/4 POCSO Act are grave and heinous in nature and carry punishment upto life imprisonment, when the punishment is severe in nature there is every possibility of the accused absconding and fleeing from

justice thereby jeopardizing the prosecution case. It is argued, that the

offence of rape is against the weaker sex and society at large, therefore, larger public interest demands that bail may be refused to the petitioner. . Lhave heard Ld. Counsel for petitioner/accused and Ld. GA for respondents. I have also gone through the relevant law on the subject matter meticulously.

In "Data Ram Singh vs. State of Uttar Pradesh and ors., [2018 (3) SCC 22], the Hon'ble Supreme Court has encapsulated the concept of bail as under: -

1. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of 23:32:05 IST Reason: bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

3. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.

4. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India 2 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, is that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.

In P. Chidambaram versus Directorate of Enforcement [Criminal

Appeal No. 1831/2019 (arising out of SLP (Criminal) No. 10496/2019] Hon'ble Supreme Court of India has further encapsulated the basic jurisprudence relating to the concept of bail as under:-

21. Thus from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being

sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial.

Ratios of the judgments (Supra) of "Data Ram Singh" & "P. Chidambaram" cases lay down an invariable principle of law that the basic jurisprudence relating to bail remains the same, inasmuch as, the "grant of bail is the rule" and "refusal is an exception". In the case in hand, the statement of prosecutrix has already been recorded by the trial court on 08.03.2022, wherein, she has stated that she of her own will and consent had gone with petitioner/accused to Samba and this fact is true that if her parents would have agreed, then she and petitioner would have happily married. As the statement of prosecutrix has already been recorded in the trial court, there is no apprehension of his tampering with the prosecution witnesses. For the last almost 2 years, petitioner/accused is lying in incarceration in District Jail Ambphalla Jammu. The allegation of rape against petitioner is to be proved during the trial of the case, moreso, denying bail to petitioner/accused would tantamount to inflicting pre-trial punishment which is against the mandate of criminal jurisprudence. However, without commenting upon the merits of the case, the petitioner at this stage has carved out a strong case of grant of bail in his favour. Accordingly, the bail application is allowed and _ petitioner/accused is admitted to bail in the sum of Rs. 50,000/- to the satisfaction of the Registrar Judicial of this Court with a direction to furnish personal bond of like amount before the Superintendent/Incharge District Jail Ambphalla Jammu

where he is presently lodged. However, before parting, the following

conditions are imposed upon the petitioner: -

(i) that the petitioner/accused shall appear before the trial court on each and every date of hearing;

(11) that the petitioner/accused shall not directly or indirectly make an inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her/them from disclosing such facts to the Court or to any police officer;

6. Dispose of accordingly alongwith connected CMPs. Copy of this order be forthwith provided to the Trial Court/Superintendent District Jail Ambphalla

Jammu for information and compliance.

Srinagar: (Mohan Lal) 22.05.2023 Judge Issaq

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No