Jammu & Kashmir High Court

Bashir Ahmed vs Ut Of J & K on 16 May, 2023

                                                                      Sr.No. 40


               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT JAMMU


                                                    Bail App No. 416/2022

                                                    Reserved on: 10.05.2023
                                                    Pronounced on:16.05.2023

Bashir Ahmed                                                ....Petitioner/Applicant(s)

                   Through :- Mr. Priyanshu Sharma, Advocate

         V/s

UT of J & K                                                          ....Respondent(s)

                   Through :- Mr. Pawan Dev Singh, Dy. AG
Coram: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
                                    ORDER

16.05.2023

1. Applicant through the medium of this application in terms of Section 438

Cr.P.C seeks to be admitted to bail in anticipation of his arrest in a case

registered against him at Police Station Khour, Jammu vide FIR No.

59/2022 dated 10.08.2022 for the commission of offences punishable under

Sections 376/504/506 IPC.

2. It has been pleaded that the applicant is a respected person in the society

apprehending his arrest on the basis of alleged false and frivolous complaint

moved by one Juna D/O Lal Din W/O Zakir Hussain at the instance of one

Mohd. Sarmu S/O Lal Din who happens to be the brother of the

complainant, though, he has not committed any offence; that the

complainant made false accusations against him, concealed the material

facts and manipulated the entire issue, only with a view to settle scores with

him; that the brother of the complainant Mohd. Sarmu did not share affable

and genial relationship with the applicant, the reason for his enmity and

hatred could be accumulated from the fact that the estranged wife of the

brother of the complainant namely Shahina Banoo, soon after registering an

agreement of mutual divorce on 13.12.2021 before the Notary Public with

her husband Mohd. Sarmu, has solemnized the marriage with the applicant

in accordance with their personal law and shariat, executed and registered

marriage agreement before the notary public on 28.12.2021 due to which

the brother of the complainant felt embarrassed and humiliated.

3. It has been further pleaded that the brother of the complainant moved an

application under Section 156 (3) Cr.P.C on 19.07.2022 before the court of

learned Judicial Magistrate Akhnoor, sought direction to register an FIR

against the applicant on the allegations that on 25.06.2022, the applicant

along with some persons forcefully barged into his house and tried to

outrage the modesty of his wife Shahina Banoo, they had beaten him with

the intention to eliminate him, the applicant had taken away Rs. 1 lacs, gold

ornaments weighing 60gms and had abducted his wife from his house.

4. Based on the allegations, the learned Magistrate directed SHO, Police

Station Khour to submit the Action Taken Report through APP. In

compliance to the court order, the APP filed the ATR wherein, it was

submitted that the wife of the complainant (Mohd. Sarmu) had already left

the matrimonial home as he had already executed/registered a mutual

divorce agreement. It is further pleaded that when the brother of the

complainant failed to get the desired results of involving the applicant into a

criminal case, decided to add new dimensions into the ongoing skirmishes

by placing his sister as a complainant and registered a complaint before the

non-applicant, immediately after the action taken report submitted by SHO

Police Station Khour before the trial court and got succeeded in registering

an FIR based on the erroneous and false allegations of committing offence

punishable under Sections 376/504/506 IPC; that being aggrieved of the

impugned FIR, it is prayed that the applicant be admitted to bail in

anticipation of his arrest.

5. Pursuant to notice, learned counsel for the respondent has not filed any

objections despite availing many opportunities, however, has opposed the

bail application orally on the ground that the present application is not

maintainable in the present form as the petitioner has filed the application

without availing the alternate remedy provided under law. The application

of the accused is completely devoid of merit and prayed that the plea of bail

be rejected, in the interest of justice.

6. Heard & considered.

7. Learned counsel for the petitioner argued that the complainant has

concealed the status of her marriage which was solemnized seven years ago

in the year 2014 with Zakir Hussain and the complainant is permanently

settled at her matrimonial home situated in Tehsil and District Samba, the

complainant on the aid and advice of her brother, who is running the entire

show, framed dubious story as portrayed in the shape of the impugned FIR

to get the petitioner trapped into a highly reprehensible allegations of

committing offence under section 376 IPC, however, the allegations are

completely farfetched and nothing but a figment of imagination, as the

contents of the FIR does not inspire any confidence in the prosecution

version for a simple reason that the complainant stated in her complaint that

she along with her mother went at their farm to extract the milk from the

cattle and also to deliver food to her brothers, but at the same time she did

said anything about the presence of the brother and the mother who were

along with her at the place of occurrence as stated in the application. It is

being further argued that the complainant did not mentioned the exact

timing of commission of offence whether it is in the morning or in the night

and surprisingly she identified only those two persons out of five who were

already at loggerheads with his brother, this makes the entire FIR

suspicious and unbelievable coupled with the fact that the complainant did

not utter a single word about her marital status and lodged the FIR on next

date. It is prayed that the petitioner be admitted to bail in anticipation of his

arrest.

8. Mr. Pawan Dev Singh, learned Dy AG, ex adverso, argued that the present

petition is not maintainable as the petitioner/accused is involved in the

commission of very heinous offence (gang rape) 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. It is further argued that in light of

the complaint and on the basis of evidence collected so far, the

aforementioned offences have been proved against the petitioner, who is

evading his arrest for the last six months after the commission of crime

punishable under Sections 376/504/506 IPC. 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. 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. The accusation against the accused is serious to have ravished the

prosecutrix sexually for many days after abducting her and in case the bail

is granted to accused it will send a wrong signal to the society at large and

shall also not enhance the course of justice in any manner, resulting into

miscarriage of justice. Offence under Section 376 IPC is a heinous crime,

which cannot be viewed with a leniency. Sexual assault not only causes

physical injuries but leaves a scar on the most cherished dignity, honour,

reputation and not the least chastity of a woman. Courts, therefore, are

expected to deal with such cases with utmost sensitivity. It needs to be

borne in mind that during preliminary investigation, the accused-petitioner

herein has been held prima facie guilty for the commission of offence

punishable under Section 376/504/506 IPC.