Jammu & Kashmir High Court - Srinagar Bench
Sameer Ahmad Padder vs Ut Of J&K on 2 August, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 29.07.2024
Pronounced on: 02.08.2024
Bail App No.132/2023
SAMEER AHMAD PADDER ...PETITIONER(S)
Through: Mr. M. A. Peerzada, Advocate.
Vs.
UT OF J&K ....RESPONDENT(S)
Through: Ms. Naubahar, Assisting Counsel, vice
Mr. Mubeen Wani, Dy. AG.
CORAM:HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has invoked the jurisdiction of this Court under
Section 439 of Cr. P. C for grant of bail in a case arising out of FIR
No.25/2023 for offence under Section 376 IPC registered with Police
Station, Qaimoh.
2) Briefly stated, case of the prosecution is that on 20.04.2023, the
prosecutrix, who is aged about 26 years, lodged a written report with the
police alleging therein that she has love affair with the accused/petitioner
herein for the last more than one and a half years. It was further alleged
that the petitioner/accused has committed sexual assault upon her on
false promise of marriage and now he is refusing to enter into wedlock
with her. On the basis of this report, the police registered FIR
No.25/2023 for offence under Section 376 of IPC and started
investigation of the case. During the course of investigation, statement
of the prosecutrix under Section 164 of the Cr. P. C was recorded.
3) In her statement recorded under Section 164 of Cr. P. C, the
prosecutrix stated that the petitioner/accused resides in her
neighbourhood and that he works as courier delivery boy. She further
stated that the accused would visit her house for the purpose of delivery
of parcels, as a consequence whereof, she came into contact with him;
that the petitioner/accused desired to have relationship with her but in
the first instance she refused to do so and made it clear to him that she
would get herself married in accordance with the wishes of her parents;
that petitioner/accused expressed his desire to marry her and in this
manner, he gained her confidence; that the relationship between them
went on for about six months and in the month of July, 2022, when she
was all alone in her house, the petitioner/accused came over there to
deliver a parcel, whereafter he committed rape upon her; that when she
started crying, the petitioner/accused consoled her by saying that he
would convince his family members to solemnize marriage with her. The
prosecutrix went on to state that even the mother of the
petitioner/accused conveyed to her that they would be solemnizing the
marriage after one year; that the petitioner/accused went on committing
sexual intercourse with her about six times between September, 2022, to
January, 2023; that she waited for the marriage proposal till January,
2023 but no marriage proposal came from the family of the
petitioner/accused and ultimately he flatly refused to enter into wedlock
with her and even the mother of the petitioner/accused resiled from her
earlier commitment; that she snapped her ties with the petitioner but he
would still send messages on her telephone. The prosecutrix went on to
allege that in the last week of February, the petitioner/accused called her
on telephone and again extended the offer of marriage to her, whereafter
she started meeting the petitioner/accused stealthily; that whenever she
would go to Bijbehara for attending tuition, the petitioner/accused would
accompany her; that on one day when petitioner/accused took her
towards Bypass, she was spotted by her aunt. Her parents came to know
about this and she was beaten up and her father threatened to turn her out
from his home; that she narrated whole episode to the petitioner and
asked him to accept her but he refused to enter into wedlock with her,
whereafter she went to the police station to lodge the report.
4) It seems that prior to filing of this application, the petitioner had
approached the Additional Sessions Judge, Anantnag, for grant of bail
but his application was dismissed by said court in terms of order dated
17.08.2023. It also appears that chargesheet against the petitioner has
been laid before the trial court and the trial of the case is in progress
5) The petitioner has sought bail on the grounds that the allegations
made in the chargesheet against him are absolutely false. It has been
contended that the prosecutrix has admitted that there was a longstanding
relationship between her and the petitioner and even if it is assumed that
any sexual intercourse has taken place between the two, the same has
taken place with the consent of the parties. It has been further contended
that the prosecutrix is a grownup lady of 30 years old whereas the
petitioner is a young boy aged only 20 years and the prosecutrix was very
well aware about the consequences of her relationship with the
petitioner. It has been further contended that the learned trial court, while
declining bail to the petitioner, has not appreciated the facts of the case
in its proper perspective.
6) The respondent, in its reply, besides narrating the version of the
prosecution case, has submitted that the petitioner has committed a
heinous crime, as such, he does not deserve to be enlarged on bail.
7) I have heard learned counsel for the petitioner and proxy counsel
appearing for the respondent.
8) The first question which is required to be determined in this case
is as to whether or not successive bail applications would lie before this
Court. The law on this issue is very clear that if an earlier application
was rejected by an inferior court, the superior court can always entertain
the successive bail application. In this behalf, I am supported by the ratio
laid down by the Supreme Court Supreme Court in the case titled
Gurcharan Singh & Ors vs State (Delhi Administration), AIR 1978
SC 179, which has been followed by the High Court of Bombay in the
case of Devi Das Raghu Nath Naik v. State, (1987 Crimes Volume 3
363). Thus, rejection of bail application by Additional Sessions Judge,
Anantnag, would not operate as a bar for this Court to entertain a similar
application under Section 439 of Cr. P. C on the same facts and for the
same offence.
9) That takes us to the merits of the instant bail application. The
offence alleged to have been committed by the petitioner is punishable
with either description for a term which shall not be less than ten years
and which may extend to imprisonment for life. The offence is not
punishable with death or imprisonment for life. Therefore, sub-section
(1) of Section 437 of Cr. P. C is not applicable to the instant case. The
present petition is, thus, required to be considered on the touchstone of
the principles governing grant of bail in the cases other than those which
are punishable with death sentence or imprisonment for life. In other
words, the grant or refusal of bail in a case of instant nature is within the
discretion of the Court. However, the said discretion has to be exercised
in accordance with the settled principles of law and precedents. Some of
the factors and parameters, which are required to be taken into consider
while exercising the discretion for grant or refusal of bail, are as under:
"(i). The nature and gravity of the accusation and the
exact role of the accused;
(ii). The position and status of the accused vis-à-vis the
victim/witnesses;
(iii). The likelihood of the accused fleeing from justice;
(iv). The possibility of the accused tampering with the
evidence and/or witnesses and obstructing the course of
justice;
(v). The possibility of repetition of the offence;
(vi) The prima facie satisfaction of the Court in support
of the charge including frivolity of the charge;
(vii) Stage of the investigation;
(viii) Larger interest of the public or the State;
10) The above are only illustrative and not exhaustive factors which
are required to be taken into account. While exercising the discretion for
grant or refusal of bail, it all depends upon the facts and circumstances
of the ach case. While the nature of offence and severity of punishment
is an important consideration for considering the plea for grant of bail to
an accused, a prima facie, view of the genuineness of the charges against
an accused is a factor which is always required to be considered.
11) Adverting to the facts of the instant case, a perusal of the statement
of the prosecutrix recorded under Section 164 of the Cr. P. C would
reveal that she was in relationship with the petitioner for several years.
It is also revealed that the prosecutrix is a grownup lady who must have
been well aware about her welfare. In her statement she has narrated that
the petitioner offered to marry her and this led to strengthening of their
relationship. As a consequence of this relationship, according to the
prosecutrix, the petitioner committed sexual intercourse upon her, firstly
in July, 2022, then on six different occasions from September, 2022, to
January, 2023, whereafter the petitioner refused to enter into wedlock
with her. It comes to the fore that she snapped her ties with the petitioner
but later she patched up her differences with him, whereafter she started
going out with the petitioner. She narrated that when she was spotted by
her aunt in company of the petitioner, her parents got infuriated and they
gave a beating to her, whereafter she asked the petitioner to take her in
his own fold and upon his refusal she lodged the FIR.
12) Learned counsel for the petitioner has contended that the
prosecutrix, who is a grownup female, in spite of the petitioner having
refused to marry her after having enjoyed sex with her, again started
developing relationship with him. According to the learned counsel, this
conduct of the prosecutrix shows that even if any sexual intercourse has
taken place between the petitioner and the prosecutrix, the same was not
pursuant to a promise of marriage but it was a result of emotional
relationship in which they were involved. It has been contended that a
grownup female cannot be hoodwinked into a promise of marriage by a
young boy. The learned counsel has contended that the fact that the
prosecutrix developed relationship with the petitioner a second time after
having snapped her ties with him, shows that her consent for going for
sexual intercourse was not under any misconception of fact. Learned
counsel for the petitioner has, while relying upon the judgment of the
Supreme Court in the case of Jayanti Rani Panda vs. State of West
Bengal, 1984 Cri. L.J 1535, contended that failure to keep the promise
of marriage at a future uncertain date does not always amount to a
misconception of fact at the inception of the act itself.
13) Although, it would be premature for this Court to deeply analyse
the material collected by the investigating agency in support of its charge
against the petitioner, yet, for the limited purpose of deciding this
application, it is necessary to take this material into consideration to test
the merits of submissions made by learned counsel for the petitioner.
14) As already stated, the prosecutrix in her statement recorded under
Section 164 of the Cr. P. C has stated that when the petitioner having
committed sexual intercourse with her several times, refused to marry
her, she snapped her ties with him. She has narrated in her statement that
even thereafter she developed relationship with the petitioner once again.
Prima facie, this conduct of the prosecutrix castes a serious doubt upon
her claim that the petitioner committed sexual intercourse with her on
the basis of a false promise of marriage. Her aforesaid conduct, prima
facie, shows that her consent to sexual intercourse with the petitioner,
who is a young boy, was not in consequence of a misconception of fact
15) At this stage it cannot be stated with certainty as to what was in
the mind of the prosecutrix when she consented to have sex with the
petitioner. However, there is material on record to suggest that she was
deeply in love with him and because of the young age of the petitioner,
the marriage between the two could not mature. The veracity of the
charge laid against the petitioner, prima facie, appears to be doubtful.
Apart from this, the petitioner has been in custody for the last more than
one year and the chargesheet has already been laid before the trial court
and the trial is in progress. Thus, a prima facie case for grant of bail is
made out in favour of the petitioner.
16) Accordingly, the petition is allowed and the petitioner is admitted
to bail in FIR No.25/2023 for offence under Section 376 IPC IPC of P/S
Qaimoh, subject to the following conditions:
(I) That he shall furnish bail bond/personal bond in the sum
of Rs.50,000/ with one surety of like amount to the
satisfaction of the learned trial court;
(II) That he shall appear before the trial court on each and
every date of hearing;
(III) That he shall not tamper with the prosecution witnesses;
(IV) That he shall not leave the territorial limits of Union
Territory of Jammu and Kashmir without the prior
permission of the trial court;
17) Anything said in this order shall not be taken as an expression of
opinion on merits of the case.
(Sanjay Dhar)
Judge
Srinagar
02.08.2024
"Bhat Altaf-Secy"
Whether the order is reportable: Yes/No
