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2012 DIGILAW 286 (JK)

Rajiv Sawhney v. State & Ors.

2012-05-25

MUZAFFAR HUSSAIN ATTAR

body2012
1. Forces of nature have catapulted the human being to a position which is central to everything in this universe. Some times, human beings, by their omissions and commissions and even by indulging in abominable activities, make themselves to fall from grace. 2. An F.I.R No. 580/2011, registered with Police Station Rajouri, unveils one of the ugly human facets which resulted in arrest of two accused persons, namely, Shri Arun Sapotra and Shri Varun Chandan, respondents 2&3 respectively. The learned Magistrate, Rajouri, initially granted interim bail to both the accused but in terms of the impugned order, rejected the bail application of Shri Varun Chandan, respondent No.3, on whose behalf, Bail Application 43/2005 has been filed and the father of the complainant has filed this application seeking setting aside the order where under Shri Arun Sapotra, respondent No.2, has been granted bail by the learned Magistrate. 3. Learned counsel for the petitioner submitted that the learned Magistrate has committed error of law and jurisdiction by allowing the application of respondent No.2. Learned counsel submitted that the offences under the Information Technology Act are continuing offences and further submitted that after the commission of offences, threats were extended to the prosecutrix and on the date the threats were extended, the respondent No.2 had ceased to be a juvenile as defined in the Jammu & Kashmir Juvenile Justice Act 1997 (for short Act of 1997). Learned counsel further submitted that the offences are of heinous and grave nature and the learned Magistrate should not have granted bail to the respondent No.2. Learned counsel for the respondent - State supported the contention of the learned counsel for the petitioner and prayed for setting aside of the impugned order. 4. Learned counsel for the respondent No. 2 submitted that after the grant of interim bail till grant of regular bail, nothing has been brought on record to show or suggest that respondent No. 2 has abused or misused the concession of bail granted to him. Learned counsel submitted that at the time of alleged commission of offence, the respondent No.2 was a juvenile as defined in section 2(h) of the Act of 1997 and in terms of section 18 thereof, he has been rightly enlarged on bail. Learned counsel also referred to the facts of the case and submitted that the respondent No.2 has been harpooned into a fabricated case. Learned counsel also referred to the facts of the case and submitted that the respondent No.2 has been harpooned into a fabricated case. He also submitted that the enquiry about the age of the juvenile, having been conducted and he having been declared to be a juvenile in terms of section 2(h) of the Act of 1997, the bail order cannot be interfered with in this revision petition. He also submitted that after grant of the interim bail, a statutory appeal was filed which was, subsequently, dismissed as withdrawn. Learned counsel, accordingly, prayed for dismissal of the revision petition. 5. Learned counsel for the parties submitted that report u/s 173 Cr.PC has also been filed. 6. The age of a person is to be determined in accordance with the mandate contained in section 32 of the Act of 1997 which is reproduced hereunder : "32. Presumption and determination of age (1) Where it appears to a competent authority that a person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile, the competent authority shall make due inquiry as to the age of that person and for that purpose shall take such evidence as may be necessary and shall record a finding whether the person is a juvenile or not, stating his age as nearly as may be. (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile, and the age recorded by the competent authority to be age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person." 7. Looking to the impugned order, what appears is that the learned Judicial Magistrate has given complete go bye to the mandate of law as contained in section 32 of the Act of 1997 supra, in as much as, he has not conducted any enquiry but, on the report of the police authority, has accepted the age of the respondent No.2 and accordingly declared him to be a juvenile. The learned Magistrate has to himself conduct the enquiry to determine the age of the respondent No.2. The learned Magistrate has to himself conduct the enquiry to determine the age of the respondent No.2. The only mode for determination of age of a person, who is brought before the competent authority/Magistrate, is section 32 of the Act of 1997, which is to be followed. 8. Perusal of the impugned order revealed that the learned Magistrate has not complied with the mandate of section 32 of the Act of 1997 aforementioned. On this ground alone, the impugned order would require to be set aside. 9. The other issues raised in this revision petition by learned counsel for the parties can be raised before the Court where the challan has been filed. Expressing any view in these miscellaneous proceedings, at this stage, one way or the other, may affect the rights of either of the parties. Therefore, the parties are at liberty to raise the issues before the Court below and the Court below will be free to consider the issues raised and return findings in accordance with the law. For this reason, the judgments, cited at bar, are not being dealt with. 10. For the above stated reasons, the impugned order is set aside. However, it is clarified that setting aside of the impugned order shall not result in taking into custody of the respondent No.2. The fate of the claim of bail of the respondent No.2 shall depend upon the results of the enquiry to be conducted by the learned Magistrate. Till then the bail order passed in favour of the respondent No.2 shall remain unaffected. B.A. 43/2012: Varun Chandan Vs. State And Anr. M/S. P. N. Raina, Sr. Adv, & J. A. Hamal for the Petitioner. M/S. Sunil Sethi, Sr. Adv & Sumit Singh for the Respondents. 1. The applicant was arrested in F.I.R No. 580/2011 registered with Police Station Rajouri for having, allegedly, committed offences punishable u/s 363,376, 292,195-A, 109 RFC and 67/67-A of Information Technology Act. Initially he was granted interim bail and subsequently bail application was rejected and he was taken back into custody on 02-03-2012. 2. This application is filed u/s 498 Cr.PC. The bail application of the applicant has been rejected at a stage when challan against him was not filed before the Court of law. There is no direct charge of rape against the applicant but the allegations which are leveled against him are of heinous nature. 2. This application is filed u/s 498 Cr.PC. The bail application of the applicant has been rejected at a stage when challan against him was not filed before the Court of law. There is no direct charge of rape against the applicant but the allegations which are leveled against him are of heinous nature. The allegations leveled in the statement of the prosecutrix recorded u/s 164-A Cr.PC cast serious reflection upon the society itself. The allegations, if proved at the trial, beyond any shade of doubt, would require the trial Court to impose a deterrent punishment on the culprits. The purpose of enacting laws, more particularly penal law, is to maintain and preserve the moral fabric of the society. Degeneration in the moral values would require to be arrested by initiating steps for moral regeneration. 3. Since the challan against the applicant has been filed in the Court of competent jurisdiction, the Court shall have to reconsider the whole issue in respect of grant or otherwise of the bail in favour of the applicant. The applicant was earlier granted interim bail and nothing is brought on record to show or suggest that he, in any manner whatsoever, abused the concession so granted. This bail application, at this stage, is disposed of in the following manner: The applicant is ordered to be released on interim bail for a period of four weeks provided he complies with the directions mentioned herein below: a) He, (applicant) will furnish Bail Bond and Surety Bond to the tune of Rs. 1/-lac each to the satisfaction of the Registrar Judicial, High Court of J&K, Jammu; b) He will undertake to appear before the trial Court on every date of hearing and will not absent himself without any just and lawful cause; c) He will further undertake that he will not make any effort to tamper with the prosecution evidence and will not impede the process of administration of justice; d) He will further undertake to surrender before the trial court on the conclusion of four weeks from today.' The trial Court will consider the issue of grant of interim bail/regular bail if the application for same is filed on behalf of the applicant and will pass appropriate orders in accordance with law. Bail application is disposed of accordingly.