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2017 DIGILAW 977 (JK)

Imtiyaz Ahmed Bhat v. State of J&K

2017-11-01

M.K.HANJURA

body2017
JUDGMENT : M.K. Hanjura, J. 1. The petitioner/accused filed an application for the grant of bail in his favour before the court of 2nd Additional Sessions Judge, Srinagar and the learned 2nd Additional Sessions Judge, Srinagar, after taking an overall view of the matter concluded that the application of the petitioner is devoid of any merit and accordingly dismissed it by his order dated 22.08.2017. The petitioner/accused filed another application before this court on 24.08.2017 on the grounds, inter alia that a case under section 376/511 RPC was registered against him at P/S Safakadal, with which the investigation commenced. During the course of the investigation of the case the statements of the witnesses under section 161 Cr.P.C. as also the statement of the girl child under section 164 Cr.P.C. were recorded. He was arrested and is presently lodged in Central Jail, Srinagar. He is a baker by profession and the father of the girl child is a mason by profession. The father of the girl child owed him an amount of Rs. 3300/- and when he demanded this money, he filed a false report against him. The investigation of the case is complete and his further detention in the attending circumstances is rendered insignificant more exclusively in the vitality of the criminal administration justice system, as he has an indefeasible right to withstand the trial and prepare for his defence. The current detention tantamounts to punishment which practice is proscribed by the principles of law holding the domain. He has deep roots in the society and cannot thwart the course of trial or intimidate the witnesses. He is not a history sheeter nor is he associated with any crime as of now excepting the instant one in which he has been framed on a false and frivolous allegation as he himself is the father of two children and could never think of associating with the alleged crime. In the premises the petitioner has prayed that he be admitted to bail for the offence aforesaid. 2. The state has resisted and controverted the application of the petitioner chiefly, on the grounds that the petitioner attempted to abuse a child aged 5 years when she went to his shop for purchasing bread. The inhabitants living in the vicinity of the shop came to her rescue and saved her from the clutches of the accused. 2. The state has resisted and controverted the application of the petitioner chiefly, on the grounds that the petitioner attempted to abuse a child aged 5 years when she went to his shop for purchasing bread. The inhabitants living in the vicinity of the shop came to her rescue and saved her from the clutches of the accused. The petitioner/accused has committed a heinous offence of attempting to rape a girl child. It is a crime against the society and in case he is enlarged on bail he will repeat the commission of the crime attributed to him. In the end it has been prayed that the bail application of the petitioner be dismissed in the interests of justice. 3. Heard and considered. 4. It will be pertinent and relevant to give a brief narration of the facts that led to the registration of the case against the accused. In the FIR lodged by the father of the biological child, a girl aged approximately 5 years, he has stated that on 16.04.2017 his daughter had been to purchase bread from the accused, a baker by profession, running his business at Ganderbal. The petitioner/accused closed the door of the shop, caught hold of the child and attempted to rape her. At that juncture, some people who had to purchase the bread from the accused assembled there and they saved his daughter from the accused/petitioner. The statement of the girl child recorded under section 164 Cr.P.C. also assumes significance in the context of the decision of this application. It gives a minute description of the crime alleged to have been committed by the petitioner. She has stated in her statement that on the date of occurrence she was sick. She did not go to her school. Her mother gave her ten rupees for purchasing the bread from the baker. There was no one near that shop. The accused baker took her into the shop, closed the door of the shop and removed her trouser. The petitioner also removed his trouser and started moving his fingers up and down her vagina. At that juncture some persons arrived there and they took an objection to what he was doing. 5. The petitioner is involved in the commission of an attempt to commit rape on a girl child or tender age. The petitioner also removed his trouser and started moving his fingers up and down her vagina. At that juncture some persons arrived there and they took an objection to what he was doing. 5. The petitioner is involved in the commission of an attempt to commit rape on a girl child or tender age. An attempt to commit a crime occurs if a criminal has an intent to commit a crime and takes a substantial step in the completion of the crime but for reasons not intended/contemplated by the criminal the crime does not occur. Attempt to commit a particular crime usually is considered to be lesser in gravity when compared to the particular crime that ended up happening. 6. It is trite to say that elaborate documentation is not warranted to be made while considering the bail petitions but at the same time one has to peep deep to see whether the accused/petitioner is, or is not, prima facie involved in the commission of the crime attributed to him as also the gravity of the alleged offence and the other considerations laid down in various judicial pronouncements. The statement of the girl child recorded under section 164-A Cr.P.C. sends shivers down the spine of everyone. The accused, an adult blessed with children, in moving his fingers up and down the private part of a small child has tried to rip away and steal her tender years. The behavior of the petitioner has virtually caused her to lose the innocence of her childhood. The act attributed to the accused is disgraceful, disgusting and it has destroyed, the semblance of trust that her parents reposed in the petitioner. The crime attributed to the petitioner is an abominable one. It is repugnantly hateful, detestable, abhorrent, atrocious, heinous and horrid. It is a beastly and a contemptible act. It has shaken the conscience of the society as a whole. The petitioner was of the age of her father and he tried to abuse her sexually. The statement of the girl child projects a tale of woe. It portrays the element of human degradation. This statement on the face of it describes that the act of the petitioner is heinous, obnoxious, grave and horrid. Therefore, the petitioner does not deserve to be enlarged on bail taking into consideration the facts and the circumstances of the case. 7. It portrays the element of human degradation. This statement on the face of it describes that the act of the petitioner is heinous, obnoxious, grave and horrid. Therefore, the petitioner does not deserve to be enlarged on bail taking into consideration the facts and the circumstances of the case. 7. Looking at the instant case from another perspective the petition of the petitioner for releasing him on bail has been dismissed by the court of 2nd Additional Sessions Judge, Srinagar by his order dated 22.08.2017. The petitioner has sought the refuge of this court in admitting him to bail by his application dated 24.08.2017 i.e. after of a gap of two days only from the date of the dismissal of his earlier application for bail. Therefore, the question that arises for consideration is, whether, there appears to be any reason or change in the circumstances of the case as would impel the court to take a view contrary to the one expressed by the learned 2nd Additional Sessions Judge in his order. It is well settled law that no successive bail application can be allowed without there being a change in the circumstances of the case. Of course the principle of res-judicata is not applicable to bail applications but the court is duty bound to weigh and consider whether any change has been effectuated/brought about in the circumstances of the case for according consideration to the successive application for the grant of bail. An order, refusing an application for bail, does not necessarily preclude another, on a later occasion, giving more materials, further developments and different considerations. If there is a change of substantial nature in the facts and circumstances of the case and it is pointed out to the court at the time of second or subsequent application for bail, there is no legal bar/impediment against entertaining such an application. The petitioner in this case has not referred to any material as would lead the court to believe that there has been any change in the circumstances of the case from the date the bail application of the petitioner has been rejected by the trial court. Therefore on this count also the application of the petitioner does not deserve any consideration and merits to be dismissed. 8. Therefore on this count also the application of the petitioner does not deserve any consideration and merits to be dismissed. 8. Viewed in the context of all that has been said and done above, the application of the petitioner for releasing him on bail is dismissed and shall be consigned to records. A copy of this order shall be sent to the court below for information and compliance.