Jammu & Kashmir High Court
Pawan Kumar vs Ut Of Jammu And Kashmir And Another on 3 October, 2024
Supple-46
Dt. 03.10.24
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App. No. 150/2024
CrlM. No. 1075/2024
Reserved on: 05.08.2024
Pronounced on: 03.10.2024
Pawan Kumar ...Petitioner(s)/Appellant(s)
Through: Mr. Sunil Sethi, Sr. Advocate with
Mr. Shubam Sharma, Advocate
Vs.
UT of Jammu and Kashmir and Another. ...Respondent(s)
Through: Mr. Sumit Bhatia, GA for R-1
Mr. Nikhil Padha, Advocate for R-2
CORAM:
HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
,
JUDGMENT
01. The instant bail application has been filed under the
provisions of Section 483 of Bharatiya Nagraik Suraksha
Sanhita, 2023, [hereinafter referred to as „BNSS, for short],
corresponding to Section 438 of the repealed Code of Criminal
Procedure, 1973, [hereinafter referred to as „ Code‟ for short],
for grant of bail in favour of the petitioner/accused in case FIR
No. 116/2022 of Police Station, Katra, the investigation
wherein has already culminated into the filing of final police
report/challan filed before the court of learned Principal
Sessions Judge, Reasi [hereinafter referred to as „the Trial
Court‟] in terms of the provisions of Section 193 of the BNSS,
corresponding to Section 173 of the Code under sections 376,
506 IPC and 3/4 of Protection of Children from Sexual
Offences Act 2012, [herein referred to as „ POCSO Act‟]
pursuant to the dismissal of his earlier bail application by the
Trial Court.
02. The bail has been sought on the grounds that
petitioner/accused has been falsely and frivolously involved in
the case FIR No. 116/2022 of Police Station, Katra, registered
under Sections, 376,506 IPC and 3/4 of POSCO Act, which has
culminated in the filing of final report/challan pending before
the learned Trial Court. That an earlier bail application filed for
and on behalf of the petitioner/accused before the learned Trial
Court on 14th February, 2024, came to be dismissed by the
learned Trial Court vide Order dated 8th June, 2024 as being
non-maintainable on the ground that this Court in a criminal
petition filed under Section 482 of the Code, corresponding to
Section 528 of the BNSS, stayed the process of taking
cognizance on the final report/challan while allowing the
presentation of the same vide Order dated 8th May, 2024. That
aggrieved by the Order dated 8th June, 2024, passed by the
learned Trial Court while dismissing the bail application, the
petitioner/accused approached this Court with a bail application
bearing No. 133/2024 and this Court, vide Order, dated 21st
June, 2024, set-aside the Order dated 8th June, 2024, of the
learned Trial Court, directing for adjudication of the bail
application on merits. That the learned Trial Court pursuant to
the Order dated 21st June, 2024, of this Court heard the bail
application afresh and disposed of the same on merits while
dismissing the same vide Order dated 10th July, 2024, which
necessitated the filing of instant bail application. That the
medical evidence, FSL opinion and more especially, the DNA
Analysis Report have ruled out the involvement of the
petitioner/accused in the commission of alleged crime. That
basically a couple, namely, "X" [husband] and "Y" [wife]
residents of Panjar District Udhampur along with their minor
children came to Katra in the year 2011 in search of their
employment as labourers/private workers on account of their
extreme poverty. That the mother of the petitioner/accused
gave them shelter and in lieu of the same, Mrs. "Y" used to
attend the house hold works of the mother of the accused when
"X" used to go for begging at Railway Track, out of which
amount the major portion was used to be taken by the mother of
the accused. That "Y" while giving birth to her 5th child in the
year 2015 expired and later on her husband "X" also died in the
year 2018. That the children of the deceased couple consisting
of four daughters and one son continued to live with mother of
the accused even after the death of their parents as none of
their relatives came forward to own them. That in February,
2021, two daughters of the deceased couple including the
prosecutrix ran away from Katra on the pretext of seeing their
land at their parental village Panjar, Udhampur, as they came to
be informed by some villagers that their parental uncles are
going to sell out their share in the land also. That while going to
their native village Panjar, Udhampur, they met their step
maternal grandfather and thereafter both the girls stayed at his
residence for 15 to 20 days. That as per the version of one of
girls, i.e., sister of the prosecutrix, she narrowly escaped an
attempt of sexual assault of her said maternal step grandfather
on which night she ran away from his home and slept on the
road side and reached Katra next morning. That the other girl
i.e., complaint/victim preferred to stay at her step maternal
grandfather‟s house despite, the insistence by her sister for
coming back to Katra. That the respondent no. 2/victim
continued to live at maternal grandfather‟s house till February,
2022, where she reportedly gave birth to a baby girl who is now
about more than one month old. That the parental uncle‟s son
of the respondent no. 2/victim, upon hearing about the matter
approached the concerned police station in Panjar, Udhampur
for taking action against the maternal grandfather of the
prosecutrix for committing forcible repeated rape upon her,
making her pregnant and even managing her delivery in a
Jungle (Forest). That the step maternal grandfather of the
respondent no. 2/prosecutrix, by use of his influence succeeded
in shifting the blame upon the petitioner/accused. That on 23 rd
April, 2022, the said person brought the respondent no. 2 to
Police Station, Katra, under his influence and succeeded in
lodging a complaint written in Urdu before the SHO, Police
Station, Katra, involving the petitioner/accused in commission
of the crime. That it was alleged in the said complaint lodged
by the respondent no. 2 at the behest of her said step maternal
grandfather that the petitioner/accused allured her and forcibly
committed rape on her, whereafter he threatened her of dire
consequences in case she made a revelation of the same, who
lastly took the prosecutrix to her step maternal grandfather‟s
place at Panjar, where, after one month, she gave birth to a
baby girl. That the respondent no. 1, i.e., SHO, Police Station,
Katra, without looking to the genuineness of the highly
motivated complaint prepared and filed by said step maternal
grandfather of the victim through her, registered the FIR No.
116/2022 against the petitioner/accused for commission of
offences under Sections 376,506 IPC and 3/4 of POSCO Act.
That the registration of the FIR against the petitioner/accused is
also backed by the persons who have committed the murder of
the brother of the petitioner/accused and were acquitted by the
Trial Court, but regarding which acquittal, the mother of the
petitioner/accused has filed a criminal revision which is
pending before this Court alongside the acquittal appeal filed
by the Union Territory of Jammu and Kashmir. That the
registration of the FIR against the petitioner, was assailed by
him through the medium of a criminal petition filed under
Section 482 of the Code bearing No. CRM(M) No. 368/2022
titled Pawan Kumar vs. UT of Jammu and Kashmir and Anr., in
which, this Court in the first instance directed that while
proceeding with the investigation of the case, the respondent
no. 1 shall await the orders of this Court for filing charge sheet,
if any, contemplated. That this Court subsequently vide Order
dated 8th May, 2024, passed on the said petition directed the
prosecution to file the challan before the Trial Court, but barred
the taking of cognizance in the criminal case till further orders
of this Court. That it is the case of the prosecution as mentioned
in the challan that the DNA Analysis has ruled out the
petitioner/accused as being the biological father of the child
who was born from the respondent no. 2 out of the alleged
offence of rape. That the learned Trial Court, while rejecting
the bail vide Order dated 10th July, 2024 has committed an
error as the Court has failed to appreciate that the allegations
against the petitioner/accused as per the prosecution are full of
inherent contradictions and based on no overwhelming
evidence. That the learned Trial Court has overlooked the very
important aspect i.e., DNA Analysis Report while rejecting the
bail application. That the petitioner/accused in his petition
earlier filed before this Court under Section 482 of the Code
has averred that he has been falsely implicated in the case as he
had no physical contact with the alleged prosecutrix. That the
petitioner/accused voluntarily opted for his DNA profiling for
allowing the State to ascertain his involvement. That the
incarceration of the petitioner in the case despite his non-
involvement as per the DNA Report is unjustified under law.
That the learned Trial Court has rejected the bail application of
the petitioner only on the basis of statement of respondent no. 2
recorded during investigation under Section 164 of the Code,
which, inter alia, is to the effect that petitioner raped her for
three to four years and when she revealed the matter to her
mother, she did not pay any heed to the same and instead
turned her out from her residence, which version could not be
believed as being without any clear dates and being belated.
That had the respondent no. 2 been subjected to the rape by the
petitioner continuously for years, then she ought to have raised
an alarm earlier. That the respondent no. 2 was residing for
more than one and a half year at Panjar in her step maternal
grandfather‟s house, who, in fact, subjected her to repeated rape
and made her pregnant where after he by use of his influence
and by exerting undue influence on the respondent no. 2
succeeded in filing a false complaint before the SHO, Katra, for
registration of FIR. That the petitioner will not jump over the
concession of the bail and shall abide any conditions that may
be imposed by the Court. That the Hon‟ble Supreme Court of
India in a criminal appeal No. 537/2020 titled Jayanat
Chatterjee vs. The State of West Bengal enlarged the
appellant/accused to bail on the ground that DNA Report did
not show him as the biological father of the child born.
03. The respondent no. 1 i.e., Union Territory of Jammu and
Kashmir through SHO, Police Station Katra Reasi resisted the
bail petition on the grounds, inter alia; that the
petitioner/accused is involved in commission of offences
punishable under Sections 376,506 IPC and 3/4 of POSCO
Act arising out of case FIR No. 116/2022 registered with Police
Station, Katra Reasi; that the statements of the witnesses
especially that of the respondent no. 2/prosecutrix recorded
under Sections 161 and 164-A of the Code, the medical
examination of the respondent no. 2 and her age determination
have corroborated the commission of offences by the
petitioner/accused during investigation of the case and the final
report/challan stands also filed before the competent court
which is pending trial; that the DNA profiling of the new born
baby who has subsequently died due to dehydration at SMGS
Hospital, Jammu, respondent no. 2/prosecutrix and also of the
petitioner/accused has been done and that the learned Trial
Court has rightly dismissed the earlier bail application of the
petitioner on merits as the offences committed by the petitioner
are heinous and antisocial.
04. The bail petition has been resisted on behalf of the respondent
no. 2 i.e., prosecutirix on the grounds that the
petitioner/accused does not deserve the concession of bail as he
has committed serious, non-bailable and antisocial offences in
relation to a minor orphan girl by taking advantage of her
orphanage and helplessness. That the nature of the crime
committed by the petitioner/accused is of utmost seriousness.
The petitioner/accused not only forcibly raped the victim
resulting in her pregnancy and the birth of a baby at the age of
14 years, but coerced her with a false promise of marriage to
ensure her silence. That both the petitioner and his mother
further threatened to kill the victim in case she discloses the
crime. That fearing her life, the respondent no. 2 was
compelled to flee to her maternal grandfather‟s residence where
she gave birth in isolation in March, 2022. That the release of
the petitioner/accused on bail is likely to pose a significant
threat to the safety and wellbeing of the victim who has already
suffered immense trauma. That the accused in order to flee
from the clutches of law absconded since 23rd February, 2022
and was only apprehended on 11th February, 2024. That in view
of the severity of the charges and potential consequences on the
victim‟s health and wellbeing, there is high likelihood that the
petitioner may attempt to evade the judicial process and cause
harm to the victim if granted bail. That mention of the maternal
grandfather of the victim as an offender is an attempt on the
part of the petitioner to create confusion and to shift the blame.
That the statement of the victim clearly reveals that the
offences have been committed by the petitioner and not by the
said person. That the police concerned during investigation of
the case did not find any evidence regarding involvement of the
Balak Ram. That the re-examination of the DNA samples is
necessary to ensure the accuracy and reliability of the findings.
That the initial DNA test results may have been influenced by
factors, such as, sample contamination or procedural errors.
Furthermore, the doctors, who conducted the original DNA
test, be examined as witnesses during the trial to ensure that
there was no tampering whatsoever. That the petitioner‟s
continuous attempt to question the DNA Analysis Report is an
effort to divert attention from the core issue of sexual assault,
which the victim‟s statement clearly establishes. That granting
of bail in this case would set a dangerous precedent,
particularly, as the crime involves heinous acts against a minor.
Such an act is not only a grave violation of victim‟s rights but
also an affront to societal morals and the rule of law. That the
allegations in the FIR and the criminal challan against the
petitioner cannot be dismissed as false, frivolous, or baseless
solely on the basis of delay in reporting. The delay in reporting
such traumatic events is not unusual and should not be used to
undermine the seriousness of the allegations. The victim, who
was a mere child and an orphan, of 14-15 years old at the time
of the alleged incidents, is likely to have experienced
significant psychological trauma, fear and coercion, which
could have impeded her ability to report the crime immediately.
The fact that the victim did not raise an alarm immediately or
that the accused is not the biological father the child does not
negate the occurrence of the crime or the credibility of the
victim‟s account. The respondent no. 2 has given the detailed
para-wise response to the bail application also.
05. Learned counsel for the respondent no. 2/prosecutrix in support
of the memo of his objections has placed reliance on the
Authoritative Judgments cited as Rahul Kumar vs. Union
Territory of Jammu and Kashmir through SHO Police
Station Miran Sahib Jammu and Ors, reported in (2023) SCC
Online J&K 323, State of Bihar vs. Bajballav Parasad,
reported in (2017) 2 SCC 178 and Y vs. State of Rajasthan
and Anr, reported in (2022) 9 SCC 269. It has been laid down
in the relied upon cases that seriousness of the crime committed
by the accused, the age of the prosecutrix and the statutory
presumptions under Sections 29 and 30 of the POCSO Act are
needed to be considered while dealing with the bail application
of an accused involved in serious offences of sexual assault in
relation to a minor victim. It has also been laid down in the
relied upon cases that the court cannot conduct a mini trial
while considering a bail application as the same is likely to
prejudice the merits of the main case.
06. I have heard learned counsel for the parties, who almost
reiterated their respective stands taken in the bail application
and the objections respectively.
07. I have perused the instant bail application and objections filed
in rebuttal by the respondents. Considered the rival
submissions.
08. The final report/challan in terms of the provisions of Section
193 of BNSS is reported to have been already filed before the
Trial Court, in which, the taking of cognizance stands barred
pending further orders by this Court as per its order dated 8 th
May, 2024, passed on a petition filed under Section 482 of the
Code by the petitioner/accused.
09. The petitioner/accused, as per the police report/challan, a copy
whereof is enclosed with the instant bail application, is alleged
to have committed the offences punishable under Sections
376,506 IPC and 3/4 of POSCO Act arising out of case FIR
No. 116/2022 of Police Station Katra, Reasi.
10. Admittedly, in case of non-bailable offences which do not
carry a sentence of death or imprisonment for life in alternative,
bail is a rule and its denial an exception especially in cases
where firstly the custodial questioning of an accused is not
imperative for the logical and scientific conclusion of the
investigation and secondly where there is nothing on record to
show that the accused, if admitted to bail, will misuse the
concession by tampering with the prosecution evidence, by
non-cooperation and association with the investigating agency
and also by absconding at the trial.
11. Apart from the statutory bar, if any, two paramount
considerations viz. likelihood of accused fleeing from justice
and tampering with the prosecution evidence relate to the
ensuring of a fair trial of the case in a court of law. It is
essential that due and proper appreciation and weightage should
be bestowed on these factors apart from others. The grant of
bail or the denial of the same falls within the purview of the
judicial discretion meant to be exercised on sound legal
principles upon the logical interpretation and application of the
same in the given facts and circumstances of the case. The
necessary arrests subject to the law of bails as provided under
the Code, BNSS and the provisions of different special
Legislations are permissible under the Constitution of our
Country by way of a reasonable exception to the fundamental
right to liberty guaranteed under Article 21 of the Constitution
and the mandate of the provisions of Article 22 of the
Constitution is meant to be followed upon making any such
necessary arrests.
12. In State of Rajasthan Jaipur Vs. Balchand AIR 1977 S.C.
2447. The Hon‟ble Apex Court has held, "basic rule may
perhaps be tersely put as bail not jail, except where there are
circumstances of fleeing from justice or thwarting the course of
justice or creating other troubles in the shape of repeating
offences or intimidating the witnesses and the like, by the
petitioner who seeks enlargement on bail from the court.
13. It is also well settled that the bar imposed under section 480 of
BNSS on the exercise of the discretion in the matters of bail
subject to proviso contained in the section, is confined to the
offences carrying a sentence of death or imprisonment for life
in alternative and the offences carrying a sentence of
imprisonment for life disjunctive of death sentence are
exempted from the embargo.
14. No single rule or a golden litmus test is applicable for
consideration of a bail application and instead some material
principles/guidelines are needed to be kept in mind by the
Courts and the Magistrates for consideration of a bail
application especially including:-
i. The judicial discretion must be exercised with the
utmost care and circumspection;
ii. That the Court must duly consider the nature and the
circumstances of the case;
iii. Reasonable apprehension of the witnesses being
tampered;
iv. Investigation being hampered or
v. The judicial process being impeded or subverted.
vi. The liberty of an individual must be balanced against the
larger interests of the society and the State.
vii. The court must weigh in the judicial scales, pros and
cons varying from case to case.
viii. Grant of bail quo an offence punishable with death or
imprisonment for life is an exception and not the rule;
ix. The court at this stage is not conducting a preliminary
trial but only seeking whether there is a case to go for
trial;
x. The nature of the charge is the vital factor, the nature of
evidence is also pertinent, the punishment to which the
party may be liable also bears upon the matter and the
likelihood of the applicant interfering with the witnesses
or otherwise polluting the course or justice, has also a
bearing on the matter.
xi. The facts and circumstances of the case play a predominant
role.
15. The Hon‟ble Apex Court in Gur Bakash Singh Sibbia Vs.
State of Punjab AIR 1980 S.C. 1632, referred to the following
extract from the American Jurisprudence having bearing on the
subject of bail,
"where the grant of bail lies within discretion of the
court, granting or denial is regulated to a large extent, by the
facts and circumstances of each particular case. Since the object
of detention order/imprisonment of the accused is to secure his
appearance and submission to jurisdiction and the judgment of
the court, the preliminary enquiry is whether a recognizance or
bond would yeild that end. It is thus clear that the question
whether to grant bail or not, depends for its answer upon a
Variety of circumstances, the cumulative effect of which must
enter into the judicial verdict. Any one single circumstance
cannot be treated as of universal validity for justifying the grant
or refusal of bail".
16. It has been laid down by the Hon‟ble Supreme Court in Sanjay
Chandra vs. Central Bureau of Investigation AIR 20012 SC
830 at Para 14 of its Judgment as under:-
14) In bail applications, generally, it has been laid
down from the earliest times that the object of bail is
to secure the appearance of the accused person at his
trial by reasonable amount of bail. The object of bail
is neither punitive nor preventive. Deprivation of
liberty must be considered a punishment, unless it can
be required to ensure that an accused person will
stand his trial when called upon. The courts owe more
than verbal respect to the principle that punishment
beings after conviction, and that every man is
deemed to be innocent until duly tried and duly
found guilty. From the earliest times, it was
appreciated that detention in custody pending
completion of trial could be a cause of great hardship.
From time to time, necessity demands that some un-
convicted persons should be held in custody pending
trial to secure their attendance at the trial but in
such cases, necessity is the operative test. In this
country, it would be quite contrary to the concept of
personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter,
upon which, he has not been convicted or that in any
circumstances, he should be deprived of his liberty
upon only the belief that he will tamper with the
witnesses if left at liberty, save in the most
extraordinary circumstances. Apart from the question
of prevention being the object of a refusal of bail,
one must not lose sight of the fact that any
imprisonment before conviction has a substantial
punitive content and it would be improper for any
court to refuse bail as a mark of disapproval of
former conduct whether the accused has been
convicted for it or not or to refuse bail to an un-
convicted person for the purpose of giving him a
taste of imprisonment as a lesson."
17. The Hon'ble Supreme Court in Dataram Singh vs State of UP and
Anr. 2018 3 SCC 22 has held that even if grant or refusal of bail is
entirely the discretion of a Judge, such discretion must be exercised
in a judicious manner and in a humane way observing as follows:
"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 circumstance of a case.
3. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best
opportunity to tamper with the evidence or influence
witnesses. If the investigating officer does not find it necessary
to arrest an accused person during investigations, a strong
case should be made out for placing that person in judicial
custody after a charge-sheet is filed. Similarly, it is important
to ascertain whether the accused was participating in the
investigations to the satisfaction of the investigating officer
and was not absconding or not appearing when required by
the investigating officer. Surely, if an accused is not hiding
from the investigating officer or is hiding due to some genuine
and expressed fear of being victimized, it would be a factor that
a judge would need to consider in an appropriate case. It is
also necessary for the judge to consider whether the accused is
a first time offender or has been accused of other offences and
if so, the nature of such offences and his or her general
conduct. The poverty or the deemed indigent status of an
accused is also an extremely important factor and even
Parliament has taken notice of it by incorporating an
Explanation to Section 436 of the Code of Criminal Procedure,
1973. An equally soft approach to incarceration has been taken
by Parliament by inserting Section 436A in the Code of
Criminal Procedure 1973."
18. In Pankaj Jain vs Union of India and Anr. 2018 5 SCC 743 the
Hon'ble Supreme Court has held that the grant of bail has to be
exercised compassionately. Heinousness of crime by itself cannot be
the ground to out rightly deny the benefit of bail if there are other
overwhelming circumstances justifying grant of bail. The Hon‟ble
Apex Court in its Judgments cited as Siddharam Satlingappa
Mhetre Vs. State of Maharastra AIR 2011 SC 312 and Sushila
Aggarwal and Ors. Vs. State (NCT of Delhi) and Anr 2020 SC
online 98, has interpreted law even on the subject of anticipatory
bail with a very wide outlook and while interpreting concept of
liberty guaranteed under Article 21 of the Constitution of our
Country in a flexible and broader sense.
19. This Court is conscious of the legal position that offences under
Sections 376 IPC and 4 of POCSO Act charged against the
petitioner/accused carry a sentence of life imprisonment owing to
which fact attraction or otherwise of the bar under Section 480 of
BNSS, corresponding to Section 437 of the Code is to be addressed
to. As hereinbefore mentioned, the bar imposed under Section 480
of BNSS is not confined to the cases where the imprisonment for
life is provided as an alternative punishment disjunctive of death
penalty. I deem it proper to reproduce the relevant extracts of the
pronouncements of the Hon‟ble Apex Court and also of this Court
to the clarification of the issue:-
Gurcharan Singh & Ors. V/s State (Delhi
Administration) AIR 1978 SC179
"If a police officer arrests a person on a reasonable suspicion
of commission of an offence punishable with death or
imprisonment for life and forwards him to a Magistrate, the
Magistrate at that stage will have no reason s to hold that
there are no reasonable grounds for believing that he has not
been guilty of such an offence. At that stage, unless the
Magistrate is able to act under the proviso to section 437 (1),
bail appears to be out of the question. The only limited inquiry
may then relate to the materials for the suspicion. The position
will naturally change as investigation progresses and more
facts and circumstances come to light section 439 (1) on the
other hand, confers special powers on the High Court or the
court of Sessions in respect of bail. Unlike under section 437
(1) there is no ban imposed under section 439 (1) against
granting of bail by the High court or the Court of Sessions to
persons accused of an offence punishable with death or
imprisonment for life. It is, however, legitimate to suppose that
the High Court or the court of Sessions will be approached by
an accused only after he has failed before the Magistrate and
after the investigation has progressed throwing light on the
evidence and circumstances implicating the accused. Even the
Court of Sessions will have to exercise its judicial discretion in
considering the question of granting of bail under section 439
(1) The overriding considerations in granting bail which are
common both in the case of section 437 (1) and section 439 (1)
are the nature and gravity of the circumstances in which the
offence is committed, the position and the status of the accused
with reference to the victim and the witnesses, the likelihood of
the accused fleeing from justice of repeating the offence of
jeopardizing his own life being faced with a grim prospect of
possible conviction in the case, of tampering with witnesses,
the history of the case as well as of is investigation and other
relevant grounds which in view of so many variable factors,
cannot be exhaustively set out. The two paramount
considerations viz likelihood of the accused fleeing from
justice and his tampering with prosecution evidence relate to
ensuring a fair trial of the case in a court of justice. It is
essential that due and proper weight should be bestowed on
these two factors apart from others."
Jawahar Barwa Vs. State of J&K, 1973 JKLR 74.
"Cases are conceivable in which a person is accused of an
offence punishable with imprisonment for life or in the
alternative with imprisonment for a lesser term. To quote some
instances take for example the offences under section 371,372
and 376 IPC all of which are punishable with imprisonment
for life or imprisonment of either description for ten years and
fine. The question arises, as in fact it was raised by Mr. Beg,
appearing for the petitioner, whether the restriction imposed
in section 497 (1) Cr.P.C. providing that no bail should be
granted where there are reasonable grounds for believing that
the accused is guilty of an offence punishable with
imprisonment for life, applies equally to such cases. The object
of the law in providing an alternate punishment seems to be to
leave room for the court to impose a lesser punishment than
imprisonment for life where, in its opinion, there are some
extenuating circumstances which lessen the gravity of the
offence. As a corollary it must follow that the restriction
imposed by section 497 (1) is not intended to cover a case
involving an offence punishable with imprisonment for life and
in the alternative imprisonment for a lesser term if there are
extenuating circumstances which lessen the gravity of the
offence. Even so the court may decline to enlarge the accused
on bail in such case as in other cases involving non-bailable
offences where larger interests of the state or of the public so
demand or because there is reasonable possibility of the
accused absconding or tampering with the witnesses or for
similar other consideration....."
Assadullah Khan and ors v/s State, SLJ 1980 J&K 31
"The very fact that an offence u/s 376 RPC was punishable
"with imprisonment for life or ten years" amply makes out the
distinction between the categories of cases of this class and
those which fall within the category where punishment
provided is death or life imprisonment. It could not be correct
to equate offences punishable with imprisonment for life or 10
years in their gravity and seriousness and in matter of bail
with those as are punishable either with death or
imprisonment for life. The bar for setting out on bail was
complete in respect of offences which are punishable either
with death or imprisonment for life. That bar in law could not
be extended to any other offence."
Mohinder Singh v/s State, KLJ 1987 237
"Therefore the rule of caution for granting bail is in respect of
any non-bailable offences which carry punishment of either
death or life. The proviso, therefore, classifies the offences on
the basis of punishment as there are huge number of offences
which are non-bailable some of them defined heinous. First
category comes murder u/s 302 RPC while under section
371,372,376,377 RPC etc. Comes later. Thus latter portion of
clause (1) section 497 Cr.P.C excludes the offences which
carry sentences for life or 10 years which we are concerned
here. The gravity of the charge under Murder is definitely
grave. Therefore, punishment provided iis death or life with no
other alternative, the forceful portion of the clause 1st of
section 497 Cr.P.c. is, therefore, to be read in isolation while
the first portion of the clause (1) of section 497 Cr.P.C. which
gives a clear command as in section 498 Cr.p.c. for granting
the bail. But even u/s 498 Cr.P.C. the latter portion of the 1 st
proviso has its play and it should be deemed a ride while
granting bail u/s 489 Cr.P.C. in non-bailable offences
carrying death penalty or life imprisonment. Therefore, there
is clear distinction between offences which carry punishment
of death or life and offense which carry life and 10 years. This
demarcation is very much embedded in clause (1) of section
497 Cr.P.C. In this view of the matter. I am not at all in
agreement with the counsel for the complainant that the life
imprisonment provided as punishment u/s 377 RPC should be
regarded with equal force with offences which carries the
punishment of death penalty or life. In my opinion the offences
u/s 371,372, 376 and 377 RPC and other carrying similar
punishment are out of the clutches of last clause of (1) of
section 497 Cr.P.C. The bail in this case is, therefore, to be
considered on its own merit without applying the rider
indicated in clause (1) of section 497 Cr.P.C."
Satyan, Petitioner Vs State, Respondent Cr.L.J. 1981 1313
"The Magistrate is not justified in holding that he has no
power to grant bail to a person accused on the sole ground
that the offence is punishable with imprisonment for life.
The prohibition against granting bail is confined to cases
where the sentence is either death or alternatively
imprisonment for life. The expression "offence punishable with
death or imprisonment for life" in section 437 (1) does not
extend to offences punishable with imprisonment for life only
(1926 27 Cr.L.J. 401 (Rang) and 1926 27 Cr.LJ 1063 (Nag)
Re1.
The legislature has made a liberal approach in the matter of
granting bail and has shown its disapproval in the matter of
keeping an accused person in custody in cases where he is
ordinarily entitled to bail. The purpose of keeping a person in
custody is to ensure his appearance in court at the time of trial
and that he is also made available for the purpose of execution
of the sentence. The purpose is not penal in character"
20. This Court is also conscious of the fact that provisions of Sections 29
of the POCSO Act presume commission, abetment or attempt of
offences defined under Sections 3,5,7 and 9 of the said Act, in any
prosecution against an accused for commission, abetment and
attempt of said offences. The provisions of Section 30 of the
POCSO Act, also presume existence of the culpable mental state of
the accused in any prosecution for any offence under the said Act,
which requires a culpable mental state on the part of the accused.
However, the accused‟s right in defense to prove that he had no
such mental state with respect to the act charged as an offence is
being protected under the provisions of the aforementioned Section
30 of the POCSO Act.
21. It is also true that as per the Section 31 of the POCSO Act, the
provisions of the Code including the provisions as to bail and bonds
are applicable in the proceedings before a Special Court under the
POCSO Act.
22. The presumptions under Sections 29 and 30 of the POCSO Act are
not absolute but are rebuttable presumptions. Such provisions of the
Act are to be considered at the conclusion of the trial and they do
not operate as a bar for grant of bail if there are other conditions and
circumstances which even before recording the evidence during the
trial make out a prima facie case for not relying upon and
considering such presumptions. Such presumptions are in the form
of an additional advantage to the prosecution and do not absolve the
prosecution from proving the foundational facts of its case. No
doubt it is for the accused to prove his innocence after the
prosecution establishes its case in terms of the foundational facts.
23. The offence under Section 376 IPC charged against the
petitioner/accused carries a rigorous imprisonment of not less than
10 years, but which may extend to imprisonment for life and with
fine. The offence punishable under 4 of the POCSO Act also
charged against the petitioner/accused carries a maximum
punishment of life imprisonment.
24. So in view of the punishments provided for the offence of rape under
Section 376 IPC and for the offence of penetrative sexual assault
under Section 4 of the POCSO Act, the bar created under Section
480 of BNSS is not attracted.
25. Admittedly, the offences charged against the petitioner/accused are
heinous in nature and highly antisocial. A murderer destroys the
physical body of a victim, but a rapist destroys the very soul of the
victim. Society looks with great apathy and hatred an unchaste girl
and it is immaterial whether she becomes so by a voluntary act or
under force or compulsion.
26. It is the admitted case of the prosecution that DNA Analysis of the
victim, the baby and the petitioner/accused has ruled out the later,
i.e., petitioner as being the biological father of the baby.
27. The learned counsel for the petitioner/accused, during his arguments,
submitted that the Hon‟ble Apex Court in a Criminal Appeal No.
537/2020 tiled Jayanat Chatterjee vs. The State of West Bengal
admitted the appellant/accused therein to bail taking into
consideration the DNA Analysis report which did not show him as
father of the child born.
28. The learned counsel for the respondent no. 2, in support of his
arguments, also relied upon the case law holding that DNA evidence
showing a lack of biological connection does not invalidate the
seriousness of rape allegations or justify bail based on such evidence
alone. He also submitted during his arguments that a Court has to
consider the other evidence on the record of the file and shall not
decide only on the basis of DNA Analysis report, which is never
100% accurate.
29. A DNA test has to be lent credibility especially after the
incorporation of Section 53-A in the Code w.e.f. 23rd June, 2006,
which has made it necessary for the prosecution to go for DNA test,
in rape cases, facilitating the prosecution to prove its case against
the accused prior to 2006, the prosecution could have still resorted
to this procedure of getting DNA test for making its case foolproof.
The Hon‟ble Supreme Court in Mukesh and Anr. vs. State for NCT
of Delhi and Ors. AIR2017 SC 2061 decided on 5th May, 2017, has
laid much emphasis on the DNA Analysis being accurate as a
technique outcome of recent scientific development. The Apex
Court in the said case has, inter alia, held at para-87 of the
Judgment that DNA evidence is now a predominant forensic
technique for identifying criminals when biological issues are left at
the scene of crime. It is profitable to reproduce the para-88 of the
Judgment.
88. Observing that DNA is scientifically accurate and
exact science and that the trial court was not justified
in rejecting DNA report, in Santosh Kumar Singh v.
State through CBI (2010) 9 SCC 747, the Court held
as under:-
"65. We now come to the circumstance with
regard to the comparison of the semen stains with the
blood taken from the appellant. The trial court had
found against the prosecution on this aspect. In this
connection, we must emphasis that the court cannot
substitute its own opinion for that of an expert, more
particularly in a science such as DNA profiling which
is a recent development."
30. It is also true that prosecution and the complainant have right under
law to lead evidence as against the accuracy of the DNA Analysis
report during trial of the case. However, during investigation stage
or the initial trial stage, ahead of recording evidence, such analysis
report can be considered for consideration of a bail petition.
31. As hereinbefore, mentioned at para-14, a series of guiding
factors/underlying principles are needed to be kept in mind while
considering a bail application of an accused involved in non-
bailable offences, regarding which there is no immediate statutory
bar, as in case of an offence punishable U/s 103 of BNS
corresponding to Section 302 IPC or in offences punishable U/ss 19,
24, 27-A and offences in relation to commercial quantities under
NDPS Act or, in case of offences mentioned under Chapter-IV and
VI, Unlawful Activities Prevention Act of 1967 etc. etc., for
exercise of judicial discretion among which the factor,
"circumstances under which, offence is committed," also finds its
place which needs to be given due weightage.
32. In the facts and circumstances of the case, especially, while
considering the DNA Profiling report, which does not connect the
petitioner with the alleged crime, and the circumstances under
which the crime is alleged to have been committed, this Court is of
the opinion that it may meet the ends of justice in case the petitioner
is admitted to bail subject to reasonable terms and conditions.
33. It is very needful to mention that petitioner/accused during
investigation of the case FIR against him preferred a petition under
Section 482 of the Code being CRM (M) No. 368/2022 for
quashment of the FIR mainly on the ground that he has been falsely
implicated in the case which is evident from the DNA Analysis
report which does not connect him with the alleged crime. As per
the Order dated 8th May, 2024 of this Court passed in the said
petition, the Police concerned was permitted to file police
report/challan before the competent Court, but the taking of
cognizance on the same has been stayed, pending further orders
from this Court. The trial on the main criminal case/challan is
needed to be started and to be proceeded expeditiously. After all the
outcome of the petition filed under Section 482 of the Code
pending before this Court shall have a direct bearing on the trial of
the criminal case.
34. For the foregoing reasons and discussion, the instant application is
allowed and the petitioner/accused is admitted to bail subject to his
furnishing personal and surety bonds each in the amount of Rs.
50,000/- for complying with the conditions of this order. The
surety/bail bond shall be furnished to the satisfaction of the learned
Trial Court. The bail order shall, however, be subject to the
following conditions:-
a) The petitioner/accused shall remain punctual at the
trial of the case.
b) The petitioner/accused shall not directly or indirectly,
make any inducement, threat or promise to the
prosecution witnesses especially the prosecutrix so as
to dissuade them from making their statements at the
trial of the case.
c) The petitioner/accused shall not leave the limits of the
Jammu, Division of the Union Territory of J&K
without the prior permission of the learned Trial
Court and shall not repeat the commission of crime.
35. In case the requisite surety/bail bond is furnished and attested, the
learned trial court shall issue a formal release order directing the
Superintendent of the concerned Jail, where the petitioner is lodged,
to release him from the custody in the instant case subject to the
furnishing of his requisite personal bond to the satisfaction of
Superintendent of the concerned jail.
36. The observations in this order have been so made for the limited
purposes of disposal of this bail application filed under Section 483
of BNSS [439 of the Code] and shall not be construed as any
interference or prejudging of the merits of the case, to be decided at
the conclusion of the trial.
37. The learned Registrar Judicial, Jammu, shall take necessary steps for
getting the pending petition under Section 482 of the Code being
CRM(M) No. 368/2022 titled Pawan Kumar Vs. UT of JK and
Anr, specially assigned expeditious speedy disposal thereof to an
appropriate Bench of this Court under the orders of Hon‟ble the
Chief Justice, provided the same is not already disposed of. The
pendency of the said petition has halted the trial of the criminal case
against the petitioner/accused, who is alleged to have committed the
serious offences punishable under Sections 376 IPC, 4 of POCSO
Act, being against the society. The petitioner/accused may not be
interested in the speedy disposal of the said petition, which has
halted the trial of the main criminal case.
38. The learned Trial Court shall, notwithstanding the pendency of the
aforesaid petition under Section 482 of the Code before this Court,
in which, by Order dated 8th May, 2024, the cognizance on the
criminal case has been barred till further orders of this Court,
continue to list the same [criminal case/challan] without any
effective proceedings till and subject to disposal of the petition
(refer to order dated 8th May, 2024 passed therein) with short
adjournments, not exceeding 15 days and ensure the presence of the
petitioner/accused at the trial with liberty to proceed under the
provisions of Sections 491,492 of BNSS, corresponding to Sections
446, 446-A of the Code, in case of t he absconding at the trial of the
petitioner/accused.
39. Before parting, it is felt needful to observe that sometimes self
induced environment, life situation, opportunity, fear, helplessness
and undue influence compels a girl child to fall an easy prey to the
sexual assault.
40. The prosecutrix alongwith her sisters and brother was putting up in
the house of the petitioner/accused since the time her parents were
alive. After the death of the parents of the prosecutrix, none of her
relatives came forward to own her and her other sisters. The
petitioner/accused had an opportunity to do the illegal act. The
prosecutrix being a minor child is supposed to be an unaware of the
consequences of the act allegedly committed in relation to her. The
situations are different where the illegal acts are being committed
by persons having an entrustment or custody of females in their
responsible capacities as public servants.
41. Some bare minimum preventive measures in aid of law need to be
taken by the prudent parents and guardians in respect of their
children/wards to save them from exploitation on account of their
vulnerability based on infancy, immaturity, bonafide belief, fear,
reputation etc. etc. Sometimes children are thrown voluntarily by
their parents and guardians in exploitation prone environment
unmindful of the consequences. No doubt the law enforcing
agencies are always at high alert but the criminal minded always
find an opportunity to commit crime. The chastity of a girl is of
predominating factor in the matter of her marriage. The society
looks up with apathy, abhorrence and hatred to an unchaste girl
and this includes the girl ravished by force or under compulsion.
Most of the incidents relating to sex offences are not at all reported
to the police. The court cannot loose sight of the fact that in sexual
offences, the failure to report the incident to the police can be due
to a variety of reasons particularly due to reluctance of the
prosecutrix and her family members go to the police and complain
about incident which concerns the reputation of the prosecutrix and
the honour of the family members. It is only upon a cool thought
that a complaint of sex offences is generally lodged. In the present
society and more particularly in conservative villages, the chastity
of a girl is of a great importance for her matrimonial relations.
42. A little bit reasonable care and precaution in aid of law is sure to
prevent an unfortunate incident of exploitation and save honour and
reputation of a child. The long penal provisions containing Proviso
upon Proviso cannot repair and restore the loss in terms of honour
and reputation. No doubt our Parliament upon taking a serious note
of the incidents of rape and gang-rape of women under the age 16
years and 12 years, has made suitable amendments in the Penal
Laws and also legislated special Acts for protection of children from
sexual offences so as to generate an environment of deterrence by
providing stringent punishments. Article 15 of our Constitution
inter alia confers upon the State powers to make special provisions
for children. Further Article 39 inter alia provides that the State
shall in particular direct its policy towards securing that tender age
of the children is not abused and their childhood and youth is
protected against an exploitation and they are given facilities to
develop in a healthy manner and in conditions of freedom and
dignity.
43. The United Nations Convention on the Rights of the Children,
ratified by India on 11th Dec. 1992, requires the State Parties to
undertake all appropriate national, bilateral and multilateral
measures to prevent the inducement or coercion of a child to
engage in any unlawful sexual activity.
44. The prosecutrix and her other minor sisters being orphans were
living in the home of petitioner/accused even after death of their
parents and their relatives did not bother to come to their rescue.
Even the authorities under the Juvenile Justice (Care and
Protection of Children) Act 2015 (hereinafter for short referred to
as the Act) fail to act in respect of the said children in accordance
with the provisions of Chapter-VI and VII of the aforesaid Act and
the rules framed there under. Guilty are liable for penalty U/s 34 of
the Act for non reporting. Concerned Child Welfare Committee(s)
shall in a discreet manner swing into action, verify the present
position of the prosecutrix/respondent No.2 and her minor sisters
and brother and press into the service the measures for their
rehabilitation and social re-integration if needed in consultation
with their relatives.
45. The learned Trial Court shall verify as to whether an application by
or on behalf of the prosecutrix/respondent no. 2 for award of
compensation under Victim Compensation Scheme in force stands
filed and processed. In case such an application is not found to have
been filed, the learned Trial Court shall take necessary steps in
coordination with the District Legal Service Authority, Jammu, so
that the entitlement of the prosecutrix to compensation under Victim
Compensation Scheme is addressed to at an earliest.
46. Disposed off.
(MOHD YOUSUF WANI)
JUDGE
JAMMU
03.10.2024
Ayaz TF"Shamim Dar PS"
i) Whether the order is speaking: Yes
ii) Whether the order is reportable: Yes
integrity of this document Bail App. No. 150/2024
