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2017 DIGILAW 938 (JK)

Adil Ahmad Churray v. State of J&K

2017-10-12

M.K.HANJURA

body2017
JUDGMENT : M.K. Hanjura, J. 1. By this application, Adil Ahmad Churray S/o Abdul Qayoom Churray R/o Lasjan, Srinagar, has craved the indulgence of this Court in enlarging him on bail for offences under Sections 376, 366, RPC, inter-alia, on the grounds that his marriage with the prosecutrix was solemnized on 9th July, 2017 in accordance with the Muslim Personal Law and after this marriage they lived happily as husband and wife, but to his utter dismay, the father of the prosecutrix lodged an FIR bearing No. 72 of 2017, at Police Station, Nowgam, against him on false and flimsy grounds. On the 12th day of July 2017, he was arrested and the custody of the prosecutrix was handed over to her parents. He has not committed any offence. The statement of the prosecutrix under Section 164-A Cr.P.C. has been recorded under coercion. After four days from his arrest he filed an application before the Chief Judicial Magistrate, Srinagar, for admitting him to bail, who in turn forwarded the same to the respondent No. 2, i.e. State through Station House Officer, Police Station, Nowgam, with the direction to submit the status report. After perusing the report along with the case diary, the learned Chief Judicial Magistrate declined to release him on bail, whereafter, he filed another application before the 2nd Additional, Judge, Srinagar, who by order dated 22.08.2017, rejected his bail on the primary ground that Section 497 Cr.P.C. creates an impediment in releasing him on bail in an offence of rape. To canvas his argument that he is entitled to be released on bail, the petitioner has relied on the law laid down by this Court in case titled Jawaher Barua vs. State. In addition, the petitioner has taken refuge under the oft repeated principles of law enunciated by various courts regarding the grant of bail. 2. In their objections, the respondents have resisted and controverted the petition of the petitioner, chiefly, on the grounds that a case was registered against the petitioner for the commission of offences under Sections 376, 366, RPC with which the investigation commenced. During the course of the investigation of the case, the statements of the witnesses have been recorded; the site plan has been prepared the prosecutrix has been recovered from the custody of the accused and she has been medically examined. During the course of the investigation of the case, the statements of the witnesses have been recorded; the site plan has been prepared the prosecutrix has been recovered from the custody of the accused and she has been medically examined. The medical examination report has been obtained which reveals that she has been subjected to sexual intercourse. It has further been stated that the age of the prosecutrix is 18 years as per the certificate collected by the police authorities. The statement of the prosecutrix has been recorded under section 164-A Cr.P.C. before the Competent Court and in her statement she has stated that she was abducted by the accused forcibly and he raped her against her will and wish. The charge sheet against the petitioner has been laid before the Court of City Judge, Srinagar on 30.08.2017. The petitioner has committed heinous offences which are against the society and, if at all, he is enlarged on bail, he will repeat the crime. In the premises, it has been prayed that the bail application be dismissed in the interest of justice. 3. Heard and considered. 4. From the plain reading of the petition and the objections filed by the state, what gets revealed is that a charge sheet for the commission of offences under Sections 376, 366, has been laid against the accused. It will also be pertinent to state that two applications of the petitioner for the grant of bail in his favour have been rejected by the judicial officers comprising different rungs of the judicial hierarchy. 5. The order of the learned Additional Sessions Judge is loud and clear, it does not call for any interference. It is based on the law and facts involved in the case. The base line of the argument of the learned counsel for the petitioner is that the prosecutrix contracted a marriage with the petitioner out of her own will and wish. This argument appears to be a contrived one when tested on the touchstone of the statement of the prosecutrix recorded under Section 164-A Cr.P.C. a copy of which is attached to the petition. This Court is conscious of the fact that elaborate documentation is not required to be made in the petitions raising questions whether, or not, a person accused of an offence should or should not be admitted to bail. This Court is conscious of the fact that elaborate documentation is not required to be made in the petitions raising questions whether, or not, a person accused of an offence should or should not be admitted to bail. However, the evidence whatever gathered during the investigation has to be tested on its face value in particular the statement of the prosecutrix. The statement of prosecutrix recorded under Section 164-A Cr.P.C. is that the accused forced and coerced her to board a bus under the threat that he will deface her by an acid attack (a bottle of which he was carrying along) in case she does not accompany him. He took her to the house of his friend in a village, the name of which is not known to her, and he seduced her to sexual intercourse against her will. On the strength of this statement of the prosecutrix, the prima-facie involvement of the petitioner in the commission of offences levelled against him cannot be ruled out and whether or not any marriage has taken place between them is a question that will be proved or disproved when the accused petitioner faces the rigor of the trial. 6. Looking at the instant case from another perspective, Section 497-C Cr.P.C. creates a bar and operates as an impediment in the matter of releasing a person on bail under Section 376 RPC with a further qualification that it is only when the Court is of the opinion that the accused is innocent and has not committed any offence, that his application for the grant of bail can be considered. This provision is an exception to the aphorism that bail and not jail or that grant of bail is the rule and its refusal is an exception. The Courts are duty bound to test the case of a person for releasing him on bail for an offence under Section 376 RPC, rigorously on the scales of 497-C RPC, irrespective of the fact whether or not it affects him adversely. The statement of the prosecutrix recorded under Section 164-A RPC, dislodges the claim of the petitioner that he is innocent and has not committed any offence. The dictum of law on which the petitioner places reliance does not hold good now in view of the criminal laws (Amendment) Act, 2013. The statement of the prosecutrix recorded under Section 164-A RPC, dislodges the claim of the petitioner that he is innocent and has not committed any offence. The dictum of law on which the petitioner places reliance does not hold good now in view of the criminal laws (Amendment) Act, 2013. Its effect stands evaporated and the long held axiom enunciated under it does not apply to matters relating to the grant of bail in an offence under Section 376 RPC. 7. Viewed in the context of all that has been said and done above, the application for admitting the petitioner to bail cannot be considered at this stage. It entails dismissal and is, accordingly dismissed. File shall be consigned to records after its due completion. 8. A copy of this order shall be forwarded to the trial court for information.