Ali Mohd. S/O Hasham Din vs Ut Of J&K Through Police Station Samba
2024 Latest Caselaw 108 j&K

Jammu & Kashmir High Court

Ali Mohd. S/O Hasham Din vs Ut Of J&K Through Police Station Samba on 9 February, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                 Sr. No. 188


      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

Case:-   Bail App No. 285/2023


Ali Mohd. S/o Hasham Din, age 48 years, R/o Village Bathri, Tehsil
Billawar (in custody) through his wife Salima Begum, age 43 y ears.

                                                                 .....Petitioners

                     Through: Mr. H. C. Jalmeria, Advocate

                Vs

1. UT of J&K through Police Station Samba.
2. Mashkool Akhter D/o Jamal Din, R/o Village Maceedi (Kentha), Tehsil
   Lohai-Malhar, District Kathua.

                                                           ..... Respondent(s)

                     Through: Mr. Vishal Bharti, Dy. AG for R-1
                              Mr. Rajnesh Raina, Advocate for R-2.


Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE

                                  ORDER

09.02.2024

(Oral)

01. The petitioner herein, through the medium of the instant petition,

seeks bail in FIR no. 0222 of 2023 dated 14.09.2023 registered with the Police

Station, Samba under Sections 376(2)(L)/313/420/506 IPC, 1860.

02. According to the prosecution version, a DD Extract No. 16 dated

14.09.2023 of PP Rakh Amb Talli came to be received in the Police Station

through SPO Ajay Kumar, No. 819/DS, wherein it had been stated that one lady,

namely, "X" along with Shalu W/o Hasham Din, R/o Machedi, Tehsil Lohi

Malhar, District Kathua came in the PP and produced a written application in

Uru, stating therein that she is a resident of Machedi, Tehsil Lohi Malhar,

District Kathua and is handicapped and that her father-Jamal Din had kept one

Mahindra Vehicle and engaged the petitioner as its driver and one day, the

petitioner told her that the Govt. is distributing sewing machines and other items

to disabled persons free of cost and, as such, told her to come along with him as

he will help her to get the sewing machine and other items and consequently she

went along with the petitioner to Samba, where the petitioner took advantage of

her disability and forcibly raped her without her consent and extended a threat to

her not to tell the same to anyone or else he will kill her, whereupon she got

frightened and did not tell anyone and thereafter, the petitioner taking advantage

of the same raped her again and again and that when she missed her menstrual

cycle, she informed the petitioner, who gave her some medicines, after

consuming the same she started bleeding and got miscarriage and to save

himself, the petitioner thereafter married her and later divorced her by preparing

a false divorce paper and that she has been cheated by the petitioner as she is

handicapped and out of fear did not tell anyone about the wrongs committed by

the petitioner to her and that today she had come along with Shalu and requested

for registration of an FIR against the petitioner.

It is further the prosecution version that the complainant-"X" verbally

stated that she has no knowledge about the place and house where the petitioner

took her and raped her and that as per the contents of the complaint, offences

under Section 376(2)(L)/420/506/313 IPC were found to have been committed

by the petitioner whereupon same was entered in the PP and aforesaid FIR was

registered.

03. It is further the prosecution version that during the course of

investigations in the FIR in question, the I.O. got conducted the medical

examination of the complainant at District Hospital and the vaginal smear slides

were sent to FSL, Jammu besides recording the statement of the complainant

under Section 164 Cr. P.C. before the Court of Munsiff, Samba, and photocopies

of the documents viz. marriage agreement, nikahnama, deed of divorce which

came to be provided by the complainant were seized and the seizure memo

prepared, whereafter on 15.09.2023 the petitioner came to be arrested and

potency test of the petitioner was got conducted at District Hospital, Samba and

after obtaining the report therefrom the accused petitioner disclosed that he

brought the complainant from Kathua to Chak Dyala, Gujjar Basti, Samba for

providing sewing machine, where he raped the complainant.

04. As per the prosecution version, as the place of occurrence fell under

the jurisdiction of PP Rakh Amb Talli, the case was transferred to said PP for

further investigation whereupon during the course of investigation, the I.O.

prepared the disclosure memo of accused petitioner regarding the occurrence,

visited the place of occurrence along with complainant, her parents and the

accused petitioner, prepared the site plan, conducted the photography of the

place of occurrence and recorded the statements of the witnesses under Section

164 Cr.P.C.

05. As per the prosecution version, according to the statement of the

complainant recorded under Section 164 Cr.P.C., the complainant reiterated the

facts as already stated by her and further investigation came to be conducted

while recording the statement of one Davinder Kumar, Advocate (Notary),

District Court, Kathua as also the witness of the divorce deed, namely, Bark

Din, S/o Mohd. Shafi, R/o Kathua, who stated that the petitioner got the signs of

the complainant on the divorce document by fraud/ cheating and that no abortion

record of the complainant during the investigation was found by the I.O. and

that the I.O. also obtained FSL report and final opinion regarding the rape of the

complainant whereupon it came to be established that the petitioner committed

the offences under Section 376(2)(L)/420/506 IPC, whereas the offence under

Section 313 IPC was found to be not made on account of non-availability of the

evidence in this regard.

06. The accused petitioner while maintaining the instant petition seeking

bail in the FIR in question has stated that the FIR registered at the instance of the

complainant is manipulated and that no preliminary enquiry was conducted by

the Police before registration of FIR and that the accused petitioner was taken

into custody without adopting due procedure and that a vague story has been

cooked up by the complainant to harass the petitioner and to extract money from

him, as the complainant on one hand claimed herself to have married the

petitioner and thereafter divorced and on the other hand alleges commission of

offence of rape against the petitioner.

07. Objections to the petition have been filed by respondent 1 wherein

the prosecution version is being reiterated and the prayer made by the petitioner

for grant of bail is being resisted and opposed.

Heard learned counsel for the parties and perused the record.

08. Learned counsel for the petitioner while making his submissions

reiterated the contentions raised in the petition insisting for grant of bail

whereas, on the contrary the counsel for the respondent 1 controverted the

contentions raised by the counsel for the petitioner. The counsel for the

respondent 2 as well opposed the petition and adopted the objections filed by the

respondent 1 in this regard.

09. Before adverting to the rival submissions of the appearing counsel for

the parties, it becomes imperative and necessary, considering the facts and

circumstances of the case, to refer to the law laid down by the Apex Court on

the subject of bail and the issues connected thereto.

A reference to the judgment of the Apex Court passed in "Anil

Kumar Yadav Vs. State (NCT of Delhi)" reported in 2018 (12) SCC 129

would be appropriate and relevant herein wherein at paras 17 and 18 following

has been provided:

"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; and (iii) 2021:JKLHC-JMU:8769 8 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."

"18. While considering the basic requirements for grant of bail, in State of U.P. through CBI v. Amarmani Tripathi, this Court has held as under:-

"18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (NCT of Delhi). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan.

11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where 2021:JKLHC-JMU:8769 9 the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of

accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge."

10. Keeping in mind the aforesaid position of law and reverting back to

the case in hand, as per the prosecution version, the petitioner has committed an

offence under Section 376(2)(L)/313/420/506 IPC. Section 376 being relevant

herein is extracted and reproduced herein:-

"Section 376. Punishment for rape.--

(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever,-- 4

(a) being a police officer, commits rape--

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine."

Insofar as the offence of rape alleged to have been conducted by the

petitioner is concerned, the said offence has been made punishable with rigorous

imprisonment of either description for a term which shall not be less than seven

years and which may extend to ten years imprisonment for life with fine.

Insofar as the offence under Section 420 is concerned, the punishment

provided therein for commission of said offence is seven years with fine.

For offence under Section 506, the punishment provided for the said

offence is two years with fine or with both.

11. The plea of the petitioner as is raised in the instant petition that the

allegations leveled against him are baseless/fabricated and that no such offence

has been committed by him and that the FIR is lodged after a long delay and is

concocted cannot alone be taken into account at this stage, either discarding or

else overlooking the evidence collected by the prosecution during the

investigation and same in view of the principles laid down by the Apex court in

the judgements supra particularly regarding nature of accusation, severity of

punishment in case of conviction and nature of supporting evidence as also

reasonable apprehension of tampering with witness or apprehension of threat to

complainant, have to be considered before grant of bail.

12. Here a reference to the judgment of the Apex Court passed in case

titled as "Neeru Yadav Vs State of Uttar Pradesh and another," reported in

2014(16) SCC 508, would also be relevant herein and following came to be

observed:

".........A democratic body polity which is wedded to the rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. Society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the society. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from its members, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the court has duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law."

A further reference to the judgment of the Apex Court passed in case

titled as "Wahid Khan Vs State of Madhya Pradesh" reported in (2010)2

SCC 9 would also be appropriate wherein following has been held:-

"21. It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are."

In view of the aforesaid observation of the Apex Court, the delay in

reporting the incident of rape by the complainant- respondent herein cannot said

to have been orchestrated or fabricated.

13. Viewed thus, in view of the aforesaid facts and circumstances of the

case, the prosecution version against the petitioner at this stage cannot be discarded

and having regard to the facts and circumstances of the case and the principles of

law laid down by the Apex Court in judgments (supra), the petitioner is not found

entitled to the concession of bail and the judgment relied upon by the counsel for

the petitioner titled as "Haji Iqbal Vs State of U.P.," reported in AIR 2023 SC

394 does not lend any support to the case of the petitioner for a simple reason that

in the said judgment, an FIR registered for commission of offences under Section

395/386/365/342/506 with Police Station Mirzapur, U.P. was under challenge

before the High Court Allahbad, whereupon the dismissal of the petition filed by

the accused the Apex Court rendered the judgment qua the ambit and scope of the

power of the High Court under Section 482 Cr.P.C. read with Article 226 of the

Constitution of India for quashment of an FIR.

14. For all that has been observed and discussed above, the instant petition

merits dismissal and as such, is accordingly, dismissed.

(JAVED IQBAL WANI) JUDGE JAMMU 09.02.2024 Shivalee

Whether the order is speaking : Yes Whether the order is reportable : Yes