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2017 DIGILAW 935 (JK)

Rohit Sharma v. State

2017-10-12

SANJAY KUMAR GUPTA

body2017
JUDGMENT : Sanjay Kumar Gupta, J. 1. Through the medium of this application, the petitioner-Rohit Sharma seeks grant of bail in case FIR No. 59 of 2015, dated 16.06.2015 registered with Police Station Bakshi Nagar, Jammu, under Sections 376/506/420 RPC against the petitioner. It is stated in the application that the police of Police Station Bakshi Nagar has falsely implicated the petitioner in FIR No. 59/2015, dated 16.06.2015 and after concluding the investigation the Final Report No. 44/2015, dated 27.09.2015 was presented before the Court of learned 3rd Additional Sessions Judge, Jammu for adjudication. That the petitioner denied the charges and the prosecution was directed to lead evidence. The prosecution has led almost whole of the evidence, except two witnesses and out of the two witnesses one is Investigating Officer (IO). Mala W/o. Kuldeep Sabharwal who is the mother of the alleged prosecutrix and Bindu Dasuja W/o. Rajinder Dasuja who is the real aunt of the alleged prosecutrix, who are the material witnesses, while making statement before the trial court have stated that Maria Sabharwal, D/o. Kuldeep Sabharwal who is the alleged prosecutrix is married to one Michael Jackson, resident of Udhampur and while recording the statement the proof of marriage of alleged prosecutrix and Michael Jackson has not been made part of the file as many photographs show that the marriage of the alleged prosecutrix and Michael Jackson has taken place. The case of the prosecution is that the petitioner/alleged accused has given a false promise of marriage to Maria alleged prosecutrix and committed social offence, but later on refused to solemnize marriage, as such, the petitioner/alleged accused has committed offence under Section 376 RPC. That it is a settled principle of law held by the Apex Court of India that when the alleged prosecutrix is already married and the case of the prosecution is that the alleged accused has given a false promise to solemnize marriage and refused to solemnize marriage, there is no any ingredients to constitute the offence under Section 376 RPC. The Apex Court has further held in number of cases that trial should not be just for the sake of trial but in the present case the alleged prosecutrix being already married and there being no ingredients to constitute the offence, the trial is just for the sake of trial. The Apex Court has further held in number of cases that trial should not be just for the sake of trial but in the present case the alleged prosecutrix being already married and there being no ingredients to constitute the offence, the trial is just for the sake of trial. As such, when there are no any ingredients to constitute the offence against the petitioner, the petitioner is required to be admitted to bail. 2. That the alleged incident was shown to be on 15th of May, 2015 and the FIR was registered on 16th of June, 2015 after about more than one month of alleged incident. It is settled principle of law held by the Apex Court of India that where there is delay in lodging FIR particularly in an offence under Section 376 RPC, the circumstances prima facie lead to not commission of offence under Section 376 RPC. The Apex Court while deciding the bail application where there was a delay of only 10 days in lodging of FIR, has admitted the petitioner therein to bail and in the present case there is a delay in lodging of FIR of more than one month, so on the principle held by the Apex Court of India that when there is delay in lodging the FIR, the petitioner therein was admitted to bail and in the present case, there being the delay of more than one month, the petitioner is entitled for admitting to bail on the principle held by the Apex Court. 3. That it is apparent from the face of evidence led by the prosecution which prima facie shows that the evidence led by the prosecution is not credible, trustworthy and truthful witnesses and on the evidence which has come before the trial Court, the petitioner cannot be convicted. It is further submitted that the prosecution has developed a new story while making statement before the trial Court and has not corroborated the case of the prosecution. The prosecution being developed a new story which cannot be relied upon, so the petitioner when cannot be convicted on the basis of the evidence led by the prosecution, the petitioner is entitled to be admitted to bail. That the petitioner moved an application before the trial Court for admitting him to bail and the trial Court on 18.04.2017 dismissed the bail application. That the petitioner moved an application before the trial Court for admitting him to bail and the trial Court on 18.04.2017 dismissed the bail application. The trial Court has stated that while dealing with cases of rape of minor, the judicial officers and the Sessions Judges are cautioned in exercising discretion to consider the release on bail. The trial Court decided the bail application on the principle and premise which are not applicable while deciding the bail application filed by the petitioner. The petitioner has been arrested. The FIR was registered pm 16.06.2015 and immediately after that the petitioner has been arrested and since then about two years are going to complete, the petitioner firstly was in the judicial custody and thereafter in the police custody. The petitioner being in the judicial custody since long and there is no chance of conclusion of the trial in near future, as such, the petitioner is entitled to be admitted to bail. 4. With afore mentioned submissions, learned counsel has prayed that the instant application be allowed and petitioner be granted bail. 5. Objections stand filed by the State in which it is stated that the instant bail application moved by the petitioner is not maintainable as the same has been filed by suppressing the real facts of the case, as such, bail application deserves to be dismissed. That the present application is not maintainable and deserves to be dismissed as the same has been filed without change of substantial circumstances between the earlier application which had been filed by the accused/petitioner before the Sessions Judge, Jammu, and stands dismissed vide order dated 18.04.2017. That the accused/petitioner is facing trial in a very heinous offence under section 376/506/420 RPC in which the accused/petitioner is not entitled to release on bail during the pendency of trial. That the applicant does not deserve any leniency or any such relief from this Hon'ble Court because such offences are already on rise and need to be stopped through judicial process. That the present bail application is misconceived inasmuch as the same is not maintainable and deserves to be dismissed out-rightly. That the Trial Court has rejected the bail application of the petitioner/accused keeping in view the facts and circumstances of the case and the law on the point. That the present bail application is misconceived inasmuch as the same is not maintainable and deserves to be dismissed out-rightly. That the Trial Court has rejected the bail application of the petitioner/accused keeping in view the facts and circumstances of the case and the law on the point. That since the evidence collected by the prosecution against the petitioner has directly connected the accused/petitioner with the commission of offence beyond any shadow of doubt and the accused/petitioner is facing trial in very heinous offence in which punishment is life or death as such, the accused/petitioner is not entitled to be released on bail at this stage and since there is every apprehension that the accused/petitioner shall be released on bail at this stage as such, he may again jump over the bail as a result of which the trial may hamper for years together and possibility of tampering with the prosecution witnesses cannot be ruled out. Govt. Advocate lastly prayed that the bail application moved by the petitioner be dismissed. 6. Heard learned counsel for both the sides, gone through the contents of the petitions and considered the law on the subject. 7. Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however, the same are only illustrative and nor exhaustive neither there can be any. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however, the same are only illustrative and nor exhaustive neither there can be any. The considerations being: (a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 8. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & Anr. 2004 (7) SCC 528 ), in para 11 it was noted as follows: "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter or course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge." 9. It was also noted in the said case that the conditions laid down under Section 437(1)(i) are sine qua non for granting bail even under Section 439 of the Code. 10. Keeping in view above law into consideration, I shall decide the present application. 11. From the perusal of application and objections, it is evident that no detail of allegations has been mentioned. In petition, it has been stated that prosecution has led almost whole of the evidence, except two witnesses and out of the two witnesses, one is Investigating Officer (IO). 12. That case of the prosecution is that the petitioner/alleged accused has given a false promise of marriage to alleged prosecutrix and later on refused to solemnize marriage, as such, the petitioner/alleged accused has committed offence under Section 376 RPC. That there is no any ingredients to constitute the offence under Section 376 RPC. That the alleged incident was shown to be on 15th of May, 2015 and the FIR was registered on 16th of June, 2015 after about more than one month of alleged incident. That it is apparent from the face of evidence led by the prosecution which prima facie shows that the evidence led by the prosecution is not credible, trustworthy and truthful witnesses and on the evidence which has come before the trial Court, the petitioner cannot be convicted. That the petitioner moved an application before the trial Court for admitting him to bail and the trial Court on 18.04.2017 dismissed the bail application. 13. I have gone through the order of Court below dated 18.4.2017. It reveals that trial Court has dismissed the bail application on the ground that in case bail is granted, it will against the interest of society at large. 14. The petitioner has himself pleaded that trial is at end stage; so I am of the view that detail appreciation of evidence will definitely prejudice the merit of case before trial court. 14. The petitioner has himself pleaded that trial is at end stage; so I am of the view that detail appreciation of evidence will definitely prejudice the merit of case before trial court. It is not a case of petitioner that victim and witnesses have stated nothing against him. During arguments, learned counsel has brought to the knowledge of Court certain contradiction and improvement made by witnesses during trial. As already held detailed appreciation of evidence and documentation on merit of case that are done at final stage of case, cannot be done at the time of considering the bail application. All the grounds taken in petition and arguments advanced may be of good quality for acquitting the petitioner, but cannot be considered for grant of bail. Merit or demerit of case cannot be done at this stage. 15. Another argument that if there had been any sexual intercourse that was consented sex, so no case of rape has been made out. Learned counsel has relied upon 2005 AIR SC 203 in case titled Dalip Singh v. State of Bihar & 2009 (4) JLJR 632 in case titled Rana Rajender Kumar Singh v. State of Jharkhand. I have gone through these citations. First judgment has been passed after full trial and in appeal. So it is not applicable. The facts of second citation are altogether different from the facts of present case. The law made after appreciating the facts cannot be applied universally. Firstly, facts are to be seen and then law is to applied. 16. While dealing with an application for bail in heinous offences, there is need to indicate reason for prima facie conclusion that accused has not committed such offence. In present case, petitioner has failed to show any valid ground for grant of bail. Hence this petition is dismissed.