JUDGMENT : 1. In the instant petition, the petitioner seeks bail in FIR no. 42/2018 registered against him at police station Bandipora under section 376 RPC. In the petition, it is stated that the petitioner is behind the bars for the last two-and-a-half months and the prosecutrix/complainant in her statement recorded under section 164-A Cr.P.C. has stated that she had a love affair with the petitioner for the last four years and in the process they had been physically intimate. It is also pleaded that the prosecutrix has stated in her statement that she is wife of the petitioner and they have performed Nikah and that she wants to live with the petitioner. 2. What needs to be stated at the outset is that the applicant filed an application before the court of the learned Principal Sessions Judge, Bandipora for releasing him on bail primarily, on the same grounds as have been agitated in this application. The application by the court below has been dismissed by an order dated 01.06.2018 of the learned Principal Sessions Judge, Bandipora, holding that the application of the applicant is devoid of merit. It is further stated in the order that the dismissal of the instant application shall not debar the accused/applicant for filing the fresh application in the competent court of law at any changed situation hereafter. 3. Objections have not been filed. Learned counsel for respondents shall be at liberty to file objections, if any, before the next date of hearing. 4. Heard and considered. 5. Risking repetition, what requires to be repeated and reiterated here is that the learned Principal Sessions Judge, Bandipora, has rejected the bail application of the applicant. The question therefore that arises for consideration at first is whether a successive application for bail will or will not lie before this court. The law evolved on the subject is that the jurisdiction of the Sessions Court and the High Court to consider an application for the grant of bail is concurrent. If the Sessions Court has rejected an application for bail, the High Court can consider the prayer afresh particularly when the order of the rejection of the bail is bad and perverse on the face of it. Resort can in this behalf be had from the law laid down in AIR 1978 SC page 179 wherein it has been held as under:- “17. Resort can in this behalf be had from the law laid down in AIR 1978 SC page 179 wherein it has been held as under:- “17. It is significant to note that under S. 397, Cr. PC, of the new code while the High Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided under Sub-section (3) of that section that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. This position has been made explicitly clear under the new Code with regard to the revision when the authorities have concurrent powers. Similar was the position under S. 435 (4), Cr. PC of the old Code with regard to concurrent revision powers of the Sessions Judge and the District Magistrate. Although under Section 435 (1) Cr. PC. of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent powers of revision, the High Court’s jurisdiction in revision was left untouched. There is no provision in the new Code excluding the jurisdiction of the High Court in dealing with an application under S. 439 (2) Cr. PC. to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain the application under S. 439 (2) Cr. PC for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is, therefore, no force in the submission of Mr. Mukherjee to the contrary.” 6. Taking a cue from the law laid down above, the High Court of Bombay in the Judgment reported in Crimes Volume 3 1987 page 363, Para No.7 of which is germane to the issue has held as follows:- “The above view of the learned Single Judge of the Kerala High Court appears to me to be correct. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr. PC. In fact, it is now well-settled that there is no bar whatsoever for a party to approach either the High Court or the Sessions Court with an application for an ordinary bail made under Section 439 Cr. PC. The power given by Section 439 to the High Court or to the Sessions Court is an independent power and thus, when the High Court acts in the exercise of such power it does not exercise any revisional jurisdiction, but its original special jurisdiction to grant bail. This being so, it becomes obvious that although under section 439 Cr. PC. concurrent jurisdiction is given to the High Court and Sessions Court, the fact, that the Sessions Court has refused a bail under Section 439 does not operate as a bar for the High Court entertaining a similar application under Section 439 on the same facts and for the same offence. However, if the choice was made by the party to move first the High Court and the High Court has dismissed the application, then the decorum and the hierarchy of the Courts require that if the Sessions Court is moved with a similar application on the same fact, the said application be dismissed. This can be inferred also from the decision of the Supreme Court in Gurcharan Singh’s case (above).” 7. Looking at the order of the Learned Principal Sessions Judge, Bandipora, whereby the application of the applicant for the grant of bail in his favour has been rejected, the prosecution version is that the prosecutrix has been subjected to rape by the petitioner. 8. The settled position of law as evolved by the Supreme Court in a catena of judicial dictums on the subject governing the grant of bail is that there is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of “bail or jail” in non-bailable offences Court has to utilize its judicial discretion, not only that as per the settled law the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 9. The word “judicial discretion” has been very well explained by an eminent jurist Benjamin Cardozo. In the words of Benjamin Cardozo “The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains. Even so, it is useful to notice the tart terms of Lord Camden that “the discretion of a Judge is the law of tyrants. It is always known, it is different in different men; it is causal, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice, in the worst, it is every vice, folly and passion to which human nature is liable. 10. Deprivation of liberty is tantamount to punishment. The principal that punishment begins after conviction and that every man is deemed to be innocent unless duly tried and duly found guilty has its application to the facts of the instant case in all the fours. The object of the bail is to seek attendance and appearance of the accused at the trial by a reasonable amount of bail. Bail cannot be withheld as a means of punishment. Prison hell destroys the tender sentiments of a person. The applicants have been languishing in the jail for the last more than fourteen months by now. The trial of the case has already commenced. The accused have to prepare for their defence which is of an essence in a criminal trial. The discretion has to be exercised on well based foundations of law and one cannot gets swayed by sentiments. Temper and passion has no role to play in exercising the discretion for the grant of bail. 11. The statement of the prosecutrix recorded under section 164-A Cr. P.C. which forms a part of the file is that the prosecutrix has contracted the marriage with the petitioner and she has expressed the desire to live with her husband. Temper and passion has no role to play in exercising the discretion for the grant of bail. 11. The statement of the prosecutrix recorded under section 164-A Cr. P.C. which forms a part of the file is that the prosecutrix has contracted the marriage with the petitioner and she has expressed the desire to live with her husband. She has also stated that she indulged in sexual intercourse with the petitioner on his assertion that he will marry her meaning thereby that the act was consensual and to crown it all she has stated that they have already performed the marriage. 12. Taking into consideration the statement of the prosecutrix and the fact that the petitioner has undergone long incarceration, the petitioner is admitted to bail in FIR no. 42/2018 registered against him in police station Bandipora. He shall execute a personal bond to the tune of Rs.50,000/- with a surety of the like amount before the Incharge jail wherever he is lodged at the moment. The petitioner shall not tamper with the prosecution evidence and shall produce himself before the Investigating Officer if and when he is directed to do so. This order shall remain in force till next date of listing before the bench. 13. List on 27th July, 2018.