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2017 DIGILAW 954 (JK)

Sunil Kumar v. State of J&K

2017-10-24

M.K.HANJURA

body2017
JUDGMENT : M.K. Hanjura, J. 1. By this order dated 03.06.2017 the learned 3rd Additional Sessions Judge (Fast Track Court), Jammu, rejected the application of the applicant/accused, namely, Sunil Kumar S/o. Chaman Lal R/o Chanu Chak, Jammu, for admitting him to bail in offences under Sections 366/376 RPC, substantially on the grounds that Section 497-C of the Code of Criminal Procedure is a fetter that prevents the Court in enlarging a person accused of an offence of rape to bail and that the accused a despicable man treated the prosecutrix, a minor, in a reprehensible manner and abused her sexually. Thereafter, the applicant/accused moved the present application, wherein he has craved the indulgence of this Court in releasing him on bail for the aforesaid offences. In order to have a better understanding of the matter and the context in which the trial Court followed the above reasoning it will be profitable to note that the applicant/accused was arrested on 12.12.2014 for seducing the prosecutrix, a girl of plus sixteen years of age, to sexual intercourse on 02.11.2014. On this accusation, a case was registered against the applicant/accused with which the investigation commenced. During the course of the investigation of the case, the statements of the witnesses, conversant with the facts of the case, as also the statement of the prosecutrix under Section 164-A of the Code of Criminal Procedure were recorded. The prosecutrix was subjected to medical examination and on the completion of the investigation of the case, a charge-sheet for the commission of the offences under Section 415, 376/363 RPC was laid against the accused/applicant in the competent Court of law. The learned trial Judge framed the charge against the accused/applicant on 30.01.2015 for the commission of the offences aforesaid. The accused/applicant denied the charge and accordingly, the prosecution was asked to produce evidence in support of its case. 2. The grouse of the petitioner is that the trial of the case has been going on at a snail's pace. The prosecution evidence has not been recorded in its entirety although a lot of water has flown down the Ganges since the date of framing the charge against him. The prosecutrix entered into a marriage agreement with him out of her own will and volition. The medical expert has opined that she is habitual of indulging in sexual intercourse. The prosecution evidence has not been recorded in its entirety although a lot of water has flown down the Ganges since the date of framing the charge against him. The prosecutrix entered into a marriage agreement with him out of her own will and volition. The medical expert has opined that she is habitual of indulging in sexual intercourse. No marks of violence have been found on her body or on her private parts. The Investigating Officer has not conducted the ossification test of the prosecutrix in order to ascertain her exact age which has been put at plus sixteen years as per the school certificate. The learned trial Judge while considering the bail application of the accused/applicant has not/appreciated the evidence on record. This has resulted in the miscarriage of justice. He has not committed any offence. He has been involved in a false and frivolous case and as per the statement of the Gynecologist who examined the prosecutrix, the offence of rape is not made out against him. In the premises, the applicant has prayed that he be enlarged on bail. 3. In the objections, the State has resisted and controverted the application of the applicant chiefly, on the grounds chat the application is not maintainable. It deserves to be dismissed being pre-mature. There has been no change in the circumstances of the case from the date the bail application of the applicant/accused has been rejected by the trial Court. The law laid down by the Apex Court of the Country is that a person accused of an offence has a right to make successive application for the grant of bail, but the Court entertaining such an application has the duty to consider the reasons and the grounds on which the earlier bail application has been rejected. The Court has to see and judge whether any fresh ground has been agitated in the subsequent application that would persuade and compel it to take a view contrary to the one held earlier in point of time. The applicant/accused has committed a heinous offence against a minor girl. His application does not deserve any consideration at this stage. There is a reasonable apprehension that in case the concession of bail is extended to the applicant/accused at this stage, he may abuse the liberty to subvert justice and threaten the prosecution witnesses. The applicant/accused has committed a heinous offence against a minor girl. His application does not deserve any consideration at this stage. There is a reasonable apprehension that in case the concession of bail is extended to the applicant/accused at this stage, he may abuse the liberty to subvert justice and threaten the prosecution witnesses. In the end, it has been stated that taking into consideration the gravity of the accusation, the nature of evidence and the severity of the punishment provided for the offences with which the applicant/accused has been charged, the application deserves to be rejected out rightly and accordingly, the same be dismissed to meet the ends of justice. 4. Heard and considered. 5. The order of the learned 3rd Additional Sessions Judge (Fast Track Court), Jammu, is clear, and distinctly perceptible. It does not call for any interference. It is based on reason, logic and the law/facts involved in the case. The main plank of the argument of the learned counsel for the petitioner is that the prosecutrix is the legally wedded wife of the applicant. He has placed a marriage agreement on record to substantiate his contention. This argument appears to be spurious and a contrived one when tested on the strength of her age, which on the date of occurrence has been stated to be plus sixteen years of age in the order of the learned Additional Sessions Judge, dated 03.06.2017, attached to the file. This Court is conscious of the fact that elaborate documentation is not required to be made in a petition while considering whether or not a person accused of the offence of rape should or should not be admitted to bail. However, taking into consideration the age of the prosecutrix, the prima facie involvement of the applicant/accused in the commission of the offences with which he is involved cannot he ruled out and whether or not any marriage has taken place between the prosecutrix and the petitioner is a question that will be proved/disproved during the course of the trial, the rigour of which is being faced by the petitioner at the moment. The evidence of the prosecution can be weighed and scanned at the final outcome of the trial and not at this stage and to cap it all doing so is within the exclusive domain and power of the trial Court. The evidence of the prosecution can be weighed and scanned at the final outcome of the trial and not at this stage and to cap it all doing so is within the exclusive domain and power of the trial Court. The consent and promiscuous attitude of the prosecutrix in entering into any sexual intercourse in a case like the present one is immaterial and inconsequential keeping in view the age of the prosecutrix. The contention of the learned counsel of the applicant/accused that the evidence adduced in the case does not vouch for the commission of rape by the petitioner is an issue the examination of which is within the jurisdiction of the trial Judge. The trial Judge has to sift and appreciate the evidence to find out on the parameters of law and facts whether the prosecution case can or cannot sustain scrutiny and whether or not a judicial process can be issued in it. 6. As stated herein-before the learned Additional Sessions Judge, has rejected the application of the petitioner for enlarging him on bail. It is well settled law that no successive application for bail can be allowed/entertained unless and until there has been a change in the circumstances of the case. No doubt, the principle of res-judicata does not have its application to the bail applications but the Court has to ponder and see whether there has been any change in the circumstances of the case and in case it is not found to be so the filing of a successive application will lead to a bad precedent. An order rejecting an application of bail would not per-se close the doors of the petitioner in moving another application on a subsequent occasion but the condition precedent is that there should be some fresh material and further developments in the case as will impel and actuate the Court to consider the successive application for bail. There is no legal bar in entertaining the subsequent application if it is pointed out that has been a change of substantial nature in the facts and circumstances of the case since the date of passing the earlier order. Nothing to substantiate so has been stated in the application in hand. 7. There is no legal bar in entertaining the subsequent application if it is pointed out that has been a change of substantial nature in the facts and circumstances of the case since the date of passing the earlier order. Nothing to substantiate so has been stated in the application in hand. 7. Looking at the instant case from another perspective, [Special Provision regarding bail in certain offences against women etc.] Section 497-C of the Code of Criminal Procedure, 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 of the Cr. P.O., irrespective of the fact whether or not it affects him adversely. The claim of the petitioner that he is innocent and has not committed any offence can be considered by the trial Court after having due regard to the evidence adduced in the case and the allied material on record. The age of the prosecutrix dislodges the claim of the petitioner that he is innocent and has not committed any offence. The oft repeated grounds for the grant of bail on which the petitioner places reliance do not hold good now in view of the criminal laws (Amendment) Act, 2013. The effect stands evaporated and the long held axioms enunciated therein do not apply to matters relating to the grant of bail in an offence under Section 376 RPC. 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 compilation. However, before parting it needs must be said that the case has been hanging fire for about the last three years approximately, by now. It entails dismissal and is, accordingly, dismissed. File shall be consigned to records after its due compilation. However, before parting it needs must be said that the case has been hanging fire for about the last three years approximately, by now. Right to speedy trial is a fundamental right. It cannot be given a go by. This Court does hope and trust that the trial Court will make all endeavour to see that the prosecution case is brought to its logical conclusion with utmost dispatch, preferably within a period of four months from the date of making this order. A copy of this order shall be sent to the trial Court for information and compliance.