Jammu & Kashmir High Court
Arshad Mehmood vs Ut Of J&K Through on 17 October, 2025
Serial No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No:-Bail App No. 181/2025
CrlM No. 1153/2025c/w
CRM (M) No. 395/2025
CrlM No. 786/2025
Reserved on :- 16.10.2025
Pronounced on : 17.10.2025
Uploaded on : 17.10.2025
Whether the operative part or full
judgment is pronounced Full
Arshad Mehmood, Age 29 years, S/o Makhan Din, .....Petitioner/Appellant(s)
R/o Chajjla, Tehsil Mankote, District Poonch.
Through: Mr. P.N. Raina, Sr. Advocate with
Mr. J.A. Hamal, Advocate
Vs
1. UT of J&K through ..... Respondent(s)
SHO P/S Mendhar, District Poonch.
2. Mehnaz Kouser, W/o Abdul Hamied,
R/o Simkan Chajjla, Tehsil Mankote,
District Poonch.
Through: Mr. Eishaan Dadhichi, GA for respondent No. 1
Mr. Qayoom Chowdhary, Advocate for
respondent No. 2.
CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
ORDER
1. After arguing for some time, ld. counsel for the petitioner submitted that
since the charge-sheet is stated to have been completed except of the formal
arrest of the petitioner, he does not wish to press the present petition at this
stage. He, however, seeks liberty to raise all permissible contentions,
including that of alleged false implication, before the trial Court at the time
of consideration of charge/discharge.
2. It may be noted that in terms of the order dated 09.05.2025, while issuing
notice to the respondents, this Court had directed that, though the
investigation in case FIR No. 55/2025 could proceed, the final police report
shall await further orders of this Court.
3. In view of the aforesaid submissions, and since learned counsel for the
petitioner does not seek disposal of the matter on merits, this petition is
dismissed as withdrawn. Liberty is, however, reserved to the petitioner to
urge all legally permissible grounds, including that of false implication,
before the trial Court at the appropriate stage, in accordance with law.
4. Interim direction, if any, shall stand vacated.
1. Yesterday, the matter was taken up for consideration. The case was partly
heard and directed to be listed for continuation. Further, learned counsel for
the petitioner was directed to ensure the presence of the petitioner in
person. In compliance thereof, the petitioner is present in Court today. The
Investigating Officer is also present, along with the case diary.
2. Learned Senior Counsel appearing for the petitioner submits that the case
against the petitioner is false and baseless. It is contended that the alleged
incident is stated to have occurred on 27.04.2025, whereas the FIR came to
be registered on 02.05.2025--after a delay of nearly five days clearly
indicating an afterthought. On a plain reading of the FIR, it emerges that
the petitioner allegedly enquired from the prosecutrix about the
whereabouts of her husband, to which she replied that he was sleeping
upstairs. Thereafter, it is alleged that the petitioner entered the house of the
prosecutrix in broad daylight and committed sexual assault upon her.
3. It is further submitted that the prosecution story is inherently improbable.
As per the FIR itself, the alleged occurrence took place in broad daylight,
and the prosecutrix is stated to have raised an alarm which attracted the
attention of her husband and other locals, who rushed to the spot; however,
the petitioner allegedly managed to escape. Learned Senior Counsel
contends that, given these circumstances, if at all the petitioner had any evil
intention towards the prosecutrix, he would not have dared to enter her
house in broad daylight when her husband was present inside. The
unexplained delay in lodging the FIR, despite the alleged presence of
witnesses and knowledge of the husband, renders the entire prosecution
case doubtful and suggestive of deliberation and false implication.
It is argued that the FIR appears to have been lodged with the oblique
motive of wreaking vengeance against the petitioner.
4. On the contrary, learned counsel appearing for the complainant vehemently
opposed the petition and submitted that the petitioner is an absconder and,
therefore, not entitled to the discretionary relief of pre-arrest bail. It is
submitted that the petitioner has violated the privacy and dignity of the
victim and that the FIR has been registered on a factual basis. The
prosecution has denied any prior telephonic conversation between the
petitioner and the victim before the incident. It is further stated that the
petitioner has been harassing the prosecutrix and her husband, allegedly
using his sister to file a case against the prosecutrix's husband to exert
pressure upon them and deter the prosecutrix from complaining.
5. As per the prosecution's case, on 27.04.2025 at about 11:30 AM, while the
prosecutrix was at home and engaged in household chores, she received a
call from the petitioner enquiring about her husband. Upon being informed
that her husband was sleeping upstairs, the petitioner disconnected the call
but soon thereafter entered the prosecutrix's house, caught hold of her, and
bolted the door from inside. He is alleged to have committed rape upon her.
On hearing her cries, her husband and neighbours rushed to the spot and
knocked at the door, whereupon the prosecutrix opened it, and the
petitioner managed to flee. On this basis, FIR No. 0055/2025 came to be
registered on 02.05.2025 for the offence under Section 64 of the Bhartiya
Nyaya Sanhita. During the investigation, the Call Detail Records (CDRs) of
the mobile number of the prosecutrix were obtained, and the prosecutrix
was also examined before the Magistrate First Class, wherein she reiterated
the allegations made in the FIR.
6. After hearing both the learned counsels and going through the pleadings as
well as the reply filed by the prosecution, particularly the response on
behalf of the prosecutrix, it transpires that the alleged occurrence took place
on 27.04.2025 between 11:00 and 11:30 AM. From the reply filed by the
prosecutrix, there appears to be no effective rebuttal to the petitioner's
contention that the FIR came to be registered after due deliberations. The
occurrence admittedly took place on 27.04.2025 and, as stated by the
petitioner, not only the husband of the prosecutrix but even the neighbours
were aware of the incident. Despite this, no immediate report was lodged
with the police. It was only on 02.05.2025 that the FIR was registered,
indicating a delay of several days, which does not stand explained
satisfactorily.
7. It has been contended by the prosecution that the petitioner had absconded
after the occurrence; however, this assertion is denied by the learned
counsel for the petitioner, who submits that the petitioner has been falsely
implicated and, apprehending arrest, had approached this Court by way of a
bail application, which was declined with liberty to apply before the trial
Court. The petitioner thereafter availed of such liberty by filing a bail
application before the trial Court, which came to be dismissed vide order
dated 30.05.2025, leading to the present application before this Court. The
prosecution further argued that since the petitioner is serving in the Police
Department, he exercised influence over the police agency and delayed the
registration of the FIR. Though the argument on the face of it appears
plausible, yet it is difficult to accept that a constable could have exerted
such influence over his superior officers as to prevent or delay the
registration of the FIR.
8. The case diary produced before the Court reveals that there had been
continuous telephonic interaction between the prosecutrix and the
petitioner. The statement of the prosecutrix indicates that she alleged the
petitioner had taken her photographs and was threatening to upload the
same on the internet while harassing her; however, such allegations are
conspicuously absent from the contents of the FIR. It is not in dispute that
the prosecutrix is a married woman having two children, while the
petitioner is an unmarried person, and from the material on record, there
appears to have been prior acquaintance between the two. As per the FIR,
the allegation is that the petitioner entered the room of the prosecutrix,
bolted it from inside, and subjected her to forcible sexual intercourse. The
prosecutrix claims to have resisted and raised hue and cry, managed to open
the door, and in the process attracted the attention of her husband and
neighbours, but somehow the petitioner managed to escape.
9. Prima facie, the version of the prosecutrix does not fully inspire confidence,
as her statement under Section 164 Cr.P.C. does not indicate that the
petitioner escaped through any other exit except the same door which she
claims to have opened. If indeed her hue and cry had attracted her husband
and other neighbours, it would have been improbable for the petitioner to
make good his escape from the scene. Moreover, the record reflects that
even after the alleged incident dated 27.04.2025, both the prosecutrix and
her husband made calls to the petitioner on his mobile phone in an attempt
to settle the matter. Such conduct lends credence to the argument of the
learned senior counsel for the petitioner that the incident may have been
consensual in nature, and that the subsequent lodging of the FIR could have
been an afterthought, possibly arising out of the prosecutrix being
confronted by her husband upon discovering her association with the
petitioner.
10. The law relating to grant of anticipatory bail has, through judicial
interpretation, evolved on the premise that pre-arrest bail is a legal
safeguard intended to protect an individual from arbitrary or false
implication. The discretion to grant such relief must, however, be exercised
judiciously on the basis of the available material and the facts of each
particular case.
11. It is undisputed that arrest entails serious consequences not only for the
accused but also for the entire family. In the present case, the incident is
alleged to have occurred on 27.04.2025, whereas the FIR came to be lodged
on 02.05.2025. Having regard to this delay, coupled with the admitted prior
proximity between the prosecutrix and the petitioner, the possibility of false
implication cannot be ruled out at this stage. The petitioner has further
alleged that the husband of the prosecutrix, being a local Naib Sarpanch,
had certain disputes regarding developmental works in the locality and, in
order to wreak vengeance upon the petitioner who is serving in the Police
Department and belongs to the same locality the present case has been
fabricated.
12. On perusal of the case diary, though the allegations are of a serious nature,
it is noticed that the version of the prosecutrix in her complaint dated
02.05.2025 and the statement under Section 183 BNSS recorded on
14.05.2025 shows a marginal improvement. In the later statement, she has
alleged that the petitioner used to blackmail her based on certain
photographs, which assertion does not find mention in the initial complaint.
13. The investigation is stated to be substantially complete; statements of the
prosecutrix and other witnesses have been recorded and the prosecutrix has
also undergone medical examination, which has yielded a negative report.
In this backdrop, denial of the concession of anticipatory bail would cause
grave prejudice to the petitioner, particularly when he has been asserting his
innocence and alleging false implication from the very inception. The
petitioner is serving as a Constable in the Police Department and has no
past antecedents of any such misconduct as alleged in the FIR.
14. In view of the above discussion, this application is allowed. The petitioner
is granted anticipatory bail in the event of his arrest in FIR No. 55/2025,
subject to the following conditions:
(i) The petitioner shall appear before the Investigating Officer on
20.10.2025 at 10:00 A.M., and shall continue to remain
available as and when required during further investigation.
(ii) On appearance, he shall furnish a personal bond and surety
bond to the satisfaction of the Investigating Officer.
(iii) In the event of any recovery being affected at his instance,
such participation shall be treated as one under Section 27 of
the Indian Evidence Act.
(iv) The petitioner shall not intimidate the prosecution witnesses
or cause any impediment in the investigation or trial.
15. It is made clear that violation of any of the above conditions shall entitle
the prosecution to seek cancellation of bail before the competent Court.
16. The bail application stands disposed of alongwith connected application(s),
if any. Any observation on merits may not prejudice the parties in trial.
17. Case diary be returned to the learned Government Counsel against proper
receipt. A copy of this order be communicated to the Trial Court as well as
the Investigating Officer for compliance.
(Sanjay Parihar)
Judge
Jammu
17.10.2025
Diksha
