Jammu & Kashmir High Court
Pronounced On: 17.10.2025 vs Union Territory Of Jammu & on 17 October, 2025
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Sr. No. 05
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:-Bail App No. 183/2025
CrlM No. 1161/2025
Pronounced on: 17.10.2025
Uploaded on: 20.10.2025
Fareed Ahmed,
Aged 44 years,
S/O Sh. Shabir Ahmed R/O Kalaban
Tehsil Mendhar, District Poonch,
through his wife Ruksana Kouser,
age 39 years, W/O Fareed Ahmed
R/O Kalaban Tehsil Mendhar,
District Poonch .... Petitioner(s)
Through:- Mr. S. S. Ahmed, Advocate&
Mr. Nitin Bhasin, Advocate.
Mr. Tayyab Javed Qureshi, Advocate.
V/s
1. Union Territory of Jammu &
Kashmir
Th. SHO Police Station
Mendhar, District Poonch.
2. The Superintendent, District
Jail, Poonch.
3. Ms X
(name withheld) W/O Mohd.
Arfeen R/O Kalaban, Mendhar,
Poonch. .....Respondent(s)
Through:- Mr. Eishan Dadichi, GA for R-1&2.
None for respondent No. 3.
CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
ORDER(ORAL)
1. By invoking the provisions of the Bhartiya Nagarik Suraksha
Sanhita (BNSS), the petitioner seeks indulgence of this Court
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for the grant of bail in connection with FIR No. 50/2021
dated 21.02.2021 registered under Sections 376 and 109 of
the IPC at Police Station, Mendhar. The petitioner submits
that although the FIR was registered on 21.02.2021, the
investigation lingered for over four years, and despite there
being a specific order passed by this Court restraining the
Investigating Agency from filing the charge-sheet without
prior permission, the same was filed before the trial court on
03.02.2025. It is contended that the charge-sheet is based on
false allegations levelled by respondent No. 3, wherein she
alleged that on 02.02.2021, while she was at her home, the
petitioner came to her residence, showed her nude
photographs and threatened to make them viral on social
media, and that on 05.02.2021, he again visited her house,
outraged her modesty, threw her on the bed, and committed
forcible sexual intercourse repeatedly against her consent. It
is further alleged that the petitioner had consumed some
medicine and recorded the act on video, threatening to
circulate the same if she disclosed the incident to anyone.
2. The petitioner asserts that he was not present at the place of
occurrence on the alleged dates and had, in fact, been staying
with his relatives till 06.02.2021. He further avers that he is
an employee of the Education Department and has been
falsely implicated due to previous enmity. It is stated that
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during the DDC Elections held in December 2020, the
prosecutrix acted as a polling agent for one Zeshan Rana,
against whose supporters the petitioner had lodged FIR No.
283/2020 dated 20.12.2020 under Sections 323, 382, and 147
IPC for indulging in proxy voting. As a counterblast, the
prosecutrix filed FIR No. 288/2020 under Sections 354 and
342 IPC. Thereafter, when the petitioner discovered that the
prosecutrix's husband had secured employment in the IRP as
a constable based on fake qualification certificates, a
complaint was lodged through the petitioner's brother before
the SSP, Poonch, resulting in departmental action and
discharge of the prosecutrix's husband from service.
Aggrieved by this, the prosecutrix fabricated the incidents of
02.02.2021 and 05.02.2021, despite the petitioner being at
Surankote and not at Poonch during that period. The
petitioner contends that even during the initial enquiry, the
police found that he was not seen anywhere near the scene of
the occurrence on the relevant dates.
3. It is further pleaded that the petitioner had approached this
Court through CRM(M) No. 832/2024 seeking quashment of
the FIR, in which notice was issued to the respondents, and
this Court directed the investigating agency not to file the
charge-sheet without prior permission. However, in blatant
violation of the said order, the petitioner was arrested on
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29.01.2025 despite there being no incriminating material
against him. The petitioner maintains his innocence and
asserts that the case has been fabricated out of political
rivalry and personal vendetta. It is also submitted that the
medical evidence does not support the prosecution's case, as
the report shows the presence of dead spermatozoa
suggestive of sexual intercourse within five days preceding
the examination, whereas the alleged incident occurred
sixteen days before the registration of the FIR, thus falsifying
the prosecutrix's version. It is contended that the trial court
rejected the bail application on untenable grounds, ignoring
the material suggesting false implication.
4. The official respondents, in their response, state that the
charge-sheet has been filed for offences under Sections 376
and 109 IPC, and that during investigation it was found that
on 02.02.2021 at about 9:30 P.M., the petitioner entered the
complainant's house at Kalaban, covered her mouth, and
committed forcible sexual intercourse, which he repeated on
05.02.2021. It is alleged that the petitioner also made a video
of the act and demanded ₹1,00,000 from the prosecutrix,
threatening to circulate the video if she failed to pay. It is
further stated that a co-accused was sent by the petitioner to
collect the money, and on 13.02.2021, the prosecutrix, out of
fear of defamation, paid ₹50,000 to him. The respondents
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acknowledge the existence of cross FIRs between the parties
bearing Nos. 283/2020 and 288/2020. During the
investigation, the petitioner's mobile phone was seized, and
call detail records as well as tower location data confirmed
that on 02.02.2021, the petitioner was at Jammu with his
ailing father, and on 05.02.2021, he was at Surankote with his
relatives, where he remained till 06.02.2021. The records also
indicate his visit to the residence of one Hakeem at village
Daleera, Poonch, and later to Ziyarat Sharief of Baba Sain
Miran Sahib Gontariyan Shahpur. It is stated that on
06.03.2021, the petitioner complained of abdominal pain and
was referred from SDH Mendhar to GMCH Rajouri and
subsequently to GMCH Jammu for further treatment. Despite
these findings, the SHO Police Station Mendhar ultimately
filed the charge-sheet against the petitioner.
5. Ld. counsel for the respondents vehemently argued that the
defence projected by the petitioner is wholly without any
legal or factual foundation and rests upon falsehood. It was
contended that the tower location details relied upon by the
petitioner had been manipulated to create a false alibi.
According to him, the prosecutrix has made a categorical and
sworn statement before the learned Magistrate, which prima
facie demonstrates the involvement of the petitioner in the
commission of sexual assault on two occasions, i.e., on
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02.02.2021 and 05.02.2021. Although there is a slight delay
in lodging the FIR, the same stands sufficiently explained, as
the prosecutrix was under a constant apprehension that the
petitioner may upload her nude videos on social media
platforms, thereby subjecting her to humiliation and mental
agony.
6. Per contra, learned counsel appearing for the petitioner
submitted that despite the alleged commission of an offence,
the petitioner had throughout cooperated with the
investigating agency and had joined the investigation and
enquiry on multiple occasions until his arrest in the year
2025. It is urged that at no point in time was the petitioner
served with any grounds of arrest, nor was there any
necessity for the police agency to arrest him, particularly
when the investigation had already concluded and the charge-
sheet was about to be filed. The arrest of the petitioner,
therefore, was not only unwarranted but also in violation of
the directions issued by the competent court. Learned counsel
placed reliance upon the judgment of the Hon'ble Supreme
Court in Siddharth vs. State of Uttar Pradesh and another,
reported in (2022) 1 SCC 676, to contend that there exists no
justification for arresting an accused once the investigation
has been completed and the accused has duly cooperated with
the process of law. It is further submitted that the petitioner
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was not present at or around the scene of occurrence, but the
subsequent Investigating Officer, ignoring the findings
recorded by his predecessor, proceeded to file the charge-
sheet under local political influence. It is alleged that one
Zeshan Rana, wielding considerable political clout in the area
after the change of government in the Union Territory of
Jammu and Kashmir, manipulated the proceedings, thereby
falsely implicating the petitioner to wreak personal
vengeance. The case set up against the petitioner, therefore, is
a concocted story bereft of truth and motivated by extraneous
considerations.
7. The record further reveals that the prosecutrix has been
impleaded as respondent No. 3 in the present petition and, in
terms of the order dated 30.09.2025, was required to file her
response. However, except for the reply submitted by the
official respondents, the prosecutrix, despite having engaged
counsel and having moved an application for her
impleadment, chose not to file any counter-affidavit to rebut
the averments made by the petitioner, particularly the plea of
alibi raised in the application.
8. I have heard learned counsel for the parties at length and
carefully perused the record made available for my
examination.
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9. In Siddharth vs. State of Uttar Pradesh and another (2022)
1 SCC 676, the Hon'ble Supreme Court dealt with a situation
where the accused was arrested immediately before the filing
of the charge-sheet, after seven years of registration of the
FIR. The Apex Court, while deprecating such practice,
observed in paragraphs 12 and 13 as under:
"12. In the present case, when the applicant has
joined the investigation, the investigation has been
completed, and he has been roped in after seven years
of registration of the FIR, we can think of no reason
why, at this stage, he must be arrested before the
charge-sheet is taken on record. We may note that the
learned counsel for the appellant has already stated
before us that on summons being issued, the appellant
will put an appearance before the trial court.
13. We accordingly set aside the impugned order and
allow the appeal in terms aforesaid, leaving the
parties to bear their own costs."
10. Similarly, in Satender Kumar Antil vs. Central Bureau of
Investigation and others, AIR 2022 SC 3386, the Hon'ble
Supreme Court reiterated the well-settled principle that "bail
is the rule and jail is the exception." This proposition has
been consistently recognised in a catena of decisions,
including Nikesh Tarachand Shah vs. Union of India,
(2018) 11 SCC 1 and Sanjay Chandra vs. CBI, (2012) 1
SCC 40. The Court observed that though the Code of
Criminal Procedure empowers a police officer to arrest a
person accused of a cognizable and non-bailable offence
without a warrant, such power must be exercised with
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circumspection and only when necessary for investigation.
The police officer is required to record his reasons in writing
while making the arrest and must be satisfied that the same is
essential for furtherance of the investigation. The principal
purpose of bail, as observed by the Court, is to secure the
attendance of the accused during trial; the accused remains in
custody not by way of punishment but merely to ensure the
due course of justice. It was further held that Section 439
Cr.P.C. confers a wide discretionary power upon the High
Court or the Court of Sessions to grant bail, and such power
must be exercised in a judicious and balanced manner, guided
by the settled principles governing the grant or denial of bail.
11. The consistent legal position that has evolved through
judicial interpretation is that it is not essential in every case
involving a cognizable and non-bailable offence that the
accused must be taken into custody at the time of filing of the
charge-sheet or final report. The occasion to arrest an accused
during investigation arises only when custodial interrogation
becomes necessary, or where the offence is of a heinous
nature, or there exists a likelihood of the accused influencing
witnesses or absconding from justice. Merely because an
arrest is lawful does not imply that it must be made; the
authority to arrest and the justification to exercise such
authority are distinct concepts, and discretion must be
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judiciously exercised to prevent arbitrary or unnecessary
detention.
12. In the present case, the alleged incidents, as per the
prosecution, took place on 02.02.2021 and 05.02.2021, and
the petitioner has been accused of committing serious
offences affecting the privacy of the prosecutrix. Prima facie,
such allegations would ordinarily dissuade this Court from
granting the concession of bail, as the petitioner stands
accused of sexually exploiting the prosecutrix, recording the
sexual act, and subsequently demanding money under the
threat of making the videos public. However, the case also
presents a counter-narrative suggesting that the parties were
embroiled in previous disputes, including cross FIRs
registered around the time of the DDC elections. It is alleged
that the prosecutrix was a polling agent of one Zeshan Rana,
and during that period, a scuffle had taken place between the
parties, resulting in the registration of cross cases. It has
further been brought to notice that the petitioner's brother had
filed a complaint against the husband of the prosecutrix,
alleging that he had secured his government appointment
based on a forged certificate, which ultimately led to his
removal from service. The defence has also placed reliance
on material indicating that the petitioner was not present at
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the scene of the occurrence on the relevant dates, a fact which
finds partial corroboration in the investigation record itself.
13. It is not in dispute that the prosecutrix was a major, residing
with her husband, who was employed in the Police
Department. Notably, despite the alleged incidents having
occurred on 02.02.2021 and 05.02.2021, the FIR came to be
lodged only on 21.02.2021, indicating a considerable delay in
reporting the matter. It is also borne from record that the
petitioner had earlier approached this Court by way of
quashment proceedings, in which, vide order dated
12.11.2024, this Court had permitted continuation of
investigation but had directed that no charge-sheet be filed
without obtaining prior permission. Despite this, the
investigating agency proceeded to file the charge-sheet,
prompting the petitioner to initiate disobedience proceedings
against respondent No. 1 for alleged wilful violation of the
said order. It is also not denied that the petitioner had been
cooperating with the investigation throughout, had remained
available within the town, and that at no stage during the
investigation did the police consider it necessary to arrest
him. These circumstances lend weight to the petitioner's
assertion that his subsequent arrest was unwarranted and
influenced by extraneous considerations.
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14. Be that as it may, without delving into the merits of the rival
versions, this Court observes that the alleged incident pertains
to the year 2021 and the investigation has now culminated in
the filing of the charge-sheet. The plea of alibi raised by the
petitioner, as well as the version of the prosecution, are
matters that can only be adjudicated upon during trial. In such
circumstances, the continued incarceration of the petitioner
would serve no useful purpose. The presence of cross-
allegations and the material indicating pre-existing animosity
between the parties creates a plausible possibility of false
implication, which cannot be ruled out at this stage.
15. At the cost of repetition, it may be observed that had there not
been a cross-version supported by verifiable material, this
Court would have been reluctant to grant indulgence in
favour of the petitioner. However, in light of the facts and
circumstances discussed above, and there being substantial
indications of innocence in favour of the petitioner, the denial
of bail would amount to pre-trial punishment and an
unwarranted curtailment of liberty. Accordingly, the
application is allowed, and the petitioner is ordered to be
released from custody, subject to the following conditions:
i. The petitioner shall furnish two solvent sureties in the
amount of ₹50,000/- each and a personal bond of like
amount to the satisfaction of the trial court.
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ii. The petitioner shall not, during the period of bail, make
any attempt to contact, directly or indirectly, the
prosecutrix or any of the prosecution witnesses.
iii. The petitioner shall appear before the trial court on
each date of hearing unless exempted by the Court for
justifiable reasons.
iv. The petitioner shall not leave the territorial jurisdiction
of the Union Territory of Jammu and Kashmir without
prior permission of the trial court.
16. Nothing observed on merits herein above shall influence the
trial court in its final endeavour in disposal of the main case.
(SANJAY PARIHAR)
JUDGE
JAMMU
17.10.2025
Sahil Padha
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
