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2018 DIGILAW 1039 (JK)

Kamal Kumar v. State of J&K

2018-12-28

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. The instant bail application has been filed by the applicant for grant of bail under Section 498 Cr.P.C. 2. Precisely facts of the case are that the applicant, namely Kamal Kumar, an under trial in case FIR No.14/2016 registered at Police Station, Arnia for commission of offences under Sections 363, 376 and 306 RPC, was arrested on 08 of March, 2016. On 17.02.2016, an information was received from reliable sources that prosecutrix was lying in unconscious condition in her house at Arnia. On this information, inquest proceeding was initiated vide Rapat No.13 dated 17.02.2017. The SHO Arnia, conducted the investigation of the case and ultimately filed the challan on 31.08.2016 against the applicant for the commission of offences under Sections 363, 376 and 306 RPC. 3. It is contended that the name of the applicant was not shown in the proceedings initiated under Section 174 Cr.P.C. In fact, the name of the applicant had appeared for the first time in the statement of the mother of the deceased recorded on 26.02.2016, i.e., after ten days of the incident. It is contended that the circumstantial evidence does not support the prosecution version. The statement of most of the witnesses, i.e., ten most relevant out of the total seventeen witnesses have already been recorded by the trial court, by virtue of which commission of offences viz. kidnapping or rape has not been proved nor even the sexual intercourse has been proved. The witnesses examined by the prosecution before the trial court, have not supported the prosecution case. Even the rest of the witnesses also do not support the prosecution version any more even if taken un-rebutted for the time being. It is further stated that the applicant earlier filed bail application before the learned 3rd Additional Sessions Judge, Jammu, who dismissed the same on 9th of April, 2018. The said order is impugned in this bail application. 4. It is contended that the learned 3rd Additional Sessions Judge, Jammu has passed the impugned order without assessing the factual as well as legal background in its proper perspective. The said order is impugned in this bail application. 4. It is contended that the learned 3rd Additional Sessions Judge, Jammu has passed the impugned order without assessing the factual as well as legal background in its proper perspective. As a matter of fact, although the grant of bail under Section 498 Cr.P.C. is a discretionary power of the Court, yet it has to be ensured that the said discretion is used judicially and properly, more specifically in a case like the instant one where the case of the applicant does not fall within the strict definition of Sections 363, 376 and 306 RPC, particularly when no act attributed in the FIR/Challan has been proved against the applicant herein so as to make him liable for the commission of offences mentioned in the FIR as well as Challan. 5. It is further contended that the impugned order itself is silent as to what act has been attributed to the applicant after the examination of most relevant ten witnesses so that his further detention is justified in respect of the said case. The applicant has been arrested and under-trial in a case, without any act being proved against the applicant by the material witnesses examined before the trial Court till now, ought not to have been the ground for dismissal of the applicant’s bail application by the learned Sessions Judge. The learned Sessions Judge, vide his order impugned, visualized the applicant as a hardened criminal, in spite of the fact that he has a clean record, and dismissed the application of the applicant on the grounds contrary to the established principles underlying the grant of bail and mandate of Cr.P.C. As a matter of fact, the learned Sessions Judge, has mentioned nothing about the merits of the case built up by the applicant for grant of bail. Nothing has been elucidated as to what part or under what circumstances the complicity of the applicant is found so as to disentitle him from the concession of bail. Nothing on the face of the record, perused by the learned Sessions Judge, shows that the applicant has been involved in the said offences, or that he will in any manner tamper or influence investigation or trial, or other participating circumstances that raise a reasonable possibility that the applicant could really be thought of as threat to the society. 6. Nothing on the face of the record, perused by the learned Sessions Judge, shows that the applicant has been involved in the said offences, or that he will in any manner tamper or influence investigation or trial, or other participating circumstances that raise a reasonable possibility that the applicant could really be thought of as threat to the society. 6. Objections have been filed by the respondents. The stand taken in the objections is that the accused is facing trial in the offences which are very serious and heinous; therefore, the petitioner may not be enlarged on bail. The fact of the matter remains that all the issues raised before this Court through the medium of instant bail application have already been dealt with and deliberated upon by the Court of learned 3rd Additional Sessions Judge, Jammu and the application for grant of bail filed by the petitioner came to be rejected by the learned trial court vide its decision dated 09.04.2018. The petitioner has not pleaded/demonstrated any change in the present bail application or any fact or detail that would entitle the petitioner to get enlarged on bail more particularly in the face of the fact that the petitioner is facing trial, as stated herein above, in very serious offences, i.e., under Sections 363, 376 and 306 RPC. It is submitted that the detailed investigation conducted by the Police has found the petitioner herein involved in the aforementioned offences and accordingly, after completion of investigation against the petitioner, a challan has been produced before the trial court. Deceased, Rubina D/o Ram Rakha, caste Paswan R/o Rasool Pur, District Sitamari, Bihar, at present Ward No.05, Arnia, was a minor and the factum of which has been found out in the investigation carried out by the Police. 7. It is further stated in the objections that the petitioner does not deserve to be enlarged on bail. The prosecutrix got forced to take the extreme step of committing suicide because of the rape committed on her by the petitioner. The details in respect of the occurrence in this behalf are fully contained in the report submitted by the police. It is further stated in the objections that the petitioner does not deserve to be enlarged on bail. The prosecutrix got forced to take the extreme step of committing suicide because of the rape committed on her by the petitioner. The details in respect of the occurrence in this behalf are fully contained in the report submitted by the police. That in case the petitioner is enlarged on bail, there is every likelihood of either the petitioner may jump the bail and may not be available to face the trial or the petitioner may interfere with the prosecution witnesses, whose depositions are yet to be recorded by the learned trial court. It is stated that the petitioner is directly involved in the matter and, therefore, the petitioner may not be enlarged on bail. All the issues raised by the petitioner have been answered by the learned trial court quite elucidately and the bail application of the petitioner came to be rejected by the petitioner. 8. Law with regard to bail during pendency of criminal trial especially in heinous offence is quite settled; the nature of accusation, the punishment of offence for which accused has been charged and interest of public at large, are some of relevant considerations. 9. In present case, petitioner has been booked under Sections 363, 376 and 306 RPC for committing rape on victim on 17.02.2016, who was minor and who committed suicide after rape. The facts of the case are that, on 16.02.2016, the accused allured the victim during night at 2 AM and kidnapped her; he committed rape on her without her consent and victim due to fear committed suicide. The allegations are thus serious in nature. The court below has already dismissed the bail petition of the petitioner on the ground that offence is serious one and material witnesses are yet to be examined. 10. After going through the order of court below, I am of the considered view that trial court’s order is correct and does not suffer from any infirmities of law. Further case is dependent upon circumstantial evidence, if accused is enlarged on bail, he will definitely try to influence the prosecution evidence and in case any chain of evidence is snapped, then whole case can go. The act of accused has shaken conscious of general public at large. 11. In view of above, this petition is dismissed.