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2017 DIGILAW 883 (JK)

Mohd. Shabbir v. Mehboob-Ul-Rehman

2017-09-22

SANJAY KUMAR GUPTA

body2017
ORDER : 1. Through the medium of petition, petitioners seek quashment of order dated 11.12.2015 passed by learned Additional District and Sessions Judge, Rajouri in File No. 57/Cr. Misc. by virtue of which, respondent has been granted bail in FIR No. 145/2014 for commission of offence under Sections 376/363/343/109 RPC. 2. The case set up by the petitioner No. 1 is that his daughter i.e. petitioner No. 2, i.e. Shahida Shabbir a minor, was raped by respondent No. 1 repeatedly which led to the registration of FIR No. 145/2015 for commission of offence under Sections 376/363/343/ 109 RPC, at Police Station, Thanamandi, Rajouri, which is now pending trial in the Court of learned Additional District and Sessions Judge, Rajouri. On presentation of the final report in the Court against five accused persons including respondent who is the main culprit, learned trial court framed charges against all the accused and statement of petitioner No. 2 favoring challan, was recorded under Section 164-A on 09.12.2014 and also copy of statement of petitioner No. 2 recorded by trial court on 18.09.2015. Respondent No. 1 was arrested on 05.12.2014 and while he was in judicial custody filed an application for grant of bail on 05.10.2015 which was allowed by the trial court vide order impugned dated 11.12.2015 by ignoring the law on the subject as well as the evidence brought on record on an untenable premise that the offence is not punishable with death or life imprisonment. Therefore, order impugned has been challenged on the following grounds:- "(i) That impugned order is contrary to law and facts, same is liable to be set aside and quashed. (ii) That court below has illegally exercised discretion in favour of accused when petitioner No. 2 being minor has been subjected to rape and her testimony in the Court was unshaken, hence the order impugned has caused serious miscarriage of justice as such the same is required to be set aside and quashed which has been issued ignoring the evidence on record. (iii) That trial court has reflected total ignorance of law on the subject and has not taken note of the amendment brought in RPC, Cr.P.C. and Evidence Act by virtue of Criminal Law Amendment Act, 2013. In terms of the amendment in Section 376 the punishment may extend to imprisonment for life." 3. (iii) That trial court has reflected total ignorance of law on the subject and has not taken note of the amendment brought in RPC, Cr.P.C. and Evidence Act by virtue of Criminal Law Amendment Act, 2013. In terms of the amendment in Section 376 the punishment may extend to imprisonment for life." 3. It is further submitted that subsequently the age has been increased from sixteen to eighteen years. That the offence of rape with a victim, who is below the age of eighteen years, is now punishable with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life and shall be liable to fine. That a minor is incapable of giving consent and where consent is denied burden shifts on the accused in case of a major victim to prove the consent. In the instant case petitioner No. 2 is a minor who has been subjected to rape and punishment for rape extends to life imprisonment with fine, hence the exercise of discretion by the trial court on the plea that the offence is not punishable with death or life imprisonment is prima facie illegal. On that score alone the impugned order, on the face of it, is illegal and deserves to be set aside and quashed. That the order of grant of bail is motivated by extraneous consideration otherwise such an order could not have been passed reflecting total ignorance of law on the subject. That the trial court has even failed to take notice of the amendment brought in Section 497 by virtue of which Section 497-C has been inserted which provides formulation of an opinion by the trial court as regards innocence of the accused for grant of bail. In the instant case the trial court has failed to record any opinion as regards the accusation being untrue prima facie hence the discretion exercised suffers from material irregularity and the resultant order has caused serious miscarriage of justice which deserves to be set right by this Hon'ble Court. 4. It is also stated the trial Court has ignored the well settled principle of law for granting bail in heinous offences. Trial Court has also failed to record any satisfaction in terms of proviso to Section 497 as amended before granting bail. 4. It is also stated the trial Court has ignored the well settled principle of law for granting bail in heinous offences. Trial Court has also failed to record any satisfaction in terms of proviso to Section 497 as amended before granting bail. In fact no judicial exercise much less an application of mind to arrive at a satisfaction with regard to innocence of the accused has been recorded which is essential before granting bail. The exercise of jurisdiction is not only irregular but has caused miscarriage of justice in the instant case, hence this petition. 5. Heard learned counsel for both the sides and considered the law on the subject. 6. From the perusal of order impugned, it is evident that after completion of investigation, challan was produced before JMIC Thanamadi on 22.01.2015, who committed the same to Sessions Judge Rajouri, against 4 accused. Thereafter, it was transferred to Additional Session Judge, Rajouri. One of accused was proceeded u/s. 512 Cr.P.C. On 23.3.2015 accused were charge sheeted u/s. 363/376/343 RPC. It is worthwhile to mention here that except petitioner herein, all other accused were granted bail during investigation. 7. It further appears that petitioner moved an application for bail on 05.10.2015, which has been allowed by trial court on the ground that long incarceration will amount to punishment before trial. 8. Bail is a vital and crucial right of an accused enshrined under the right to freedom, once the person is released on bail, it is in exceptional circumstances that the courts cancel his bail. The pre-conditions as defined by various courts for cancellation of bail can be summarized as under: "(i) The interference or attempt to interfere with the due course of administration of justice by the accused. (ii) The evasion or attempt to evade the course of justice by the accused. (iii) The accused has abused to the liberty granted to him by the court. (iv) The accused misuses the liberty by indulging in similar criminal activity. (v) The accused interferes with the course of the investigation. (vi) The accused attempts to tamper with the evidence or the witnesses. (vii) The accused threatens witnesses or indulges in similar activities." 9. The powers as provided under section 561-A Cr.P.C. are wide and sweeping. (iv) The accused misuses the liberty by indulging in similar criminal activity. (v) The accused interferes with the course of the investigation. (vi) The accused attempts to tamper with the evidence or the witnesses. (vii) The accused threatens witnesses or indulges in similar activities." 9. The powers as provided under section 561-A Cr.P.C. are wide and sweeping. The said powers can be exercised for cancelling any bail, however, if the bail has been granted by the Court of Session, the same would be cancelled by the Court of Session or the High Court. If the bail has been granted by the High Court, the same can only be cancelled by the High Court. Generally, an application should be moved before the court, which has granted the bail stating all these grounds or the related grounds stated above for cancellation of bail of the accused. Based on the facts of the case, the court will consider all the grounds and order for the cancellation of the bail, if the said grounds are found to be correct. 10. Rejection of bail, when bail is applied for is one thing; cancellation of bail already granted is quite another thing. It is easier to reject a bail application in a non-bailable case than to cancel a bail already granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can, by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. When a decision of bail already made on merit, after due deliberation, is required to be reviewed on prayer for cancellation of bail, it would require the exercise to be undertaken with the necessary care and circumspection. 11. In present case, accused/respondent was taken into custody on 05.01.2015, he was enlarged on bail on 11.12.2015 after about 11 months. The statement of victim has been recorded; the statement of doctor has also been recorded, who has stated that victim is habitual of intercourse and there was no sign of violence and there was no sign of recent intercourse; the victim has stated her age as 15 years. Out of 11 witnesses, six material witnesses have been examined. Only govt. witnesses are required to be produced. Out of 11 witnesses, six material witnesses have been examined. Only govt. witnesses are required to be produced. The offence alleged is not punishable with death or life imprisonment. 12. No person shall be deprived of his life or personal liberty except according to procedure established by law. Liberty is a dynamic concept; therefore, continual research is necessary to regularly assess the changing dimension of the right to personal liberty guaranteed. Before cancellation of bail in non-bailable offences, the court must from every side of the case should analyse various factor with complete caution and acute sense of judgment. 13. Further inherent power vested in High Court has to be exercised in exceptional and sparingly. It is not the case of petitioners that accused has misused the concession of bail. 14. From the facts and circumstances of case, I don't find any exceptional case is made out for cancellation of bail. This petition is dismissed. File of Court below be sent back forthwith for trial.