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2018 DIGILAW 460 (JK)

Angat Kumar v. State of Jammu and Kashmir

2018-07-03

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the medium of instant application, petitioner-Angat Kumar prays for his release on bail in case FIR No. 183/2013 registered under Section 376-C/109 RPC with Police Station Bahu Fort, Jammu. 2. Petitioner through counsel has stated in his petition that the petitioner has been falsely implicated in false and frivolous case registered vide FIR No. 183/2013 under Section 376(2)(C)/109 RPC. After completion of investigation, the Special Investigating Team filed challan in the Court of law which is pending in the Court of learned 3rd Additional District and Sessions Judge, Jammu. It is further submitted that the trial Court has discharged six accused persons and framed charges against two accused persons namely Surjeet Kumar and the petitioner-Angat Kumar vide order dated 24.07.2014 and the prosecution was directed to lead evidence. 3. Learned counsel further submitted that the prosecution has cited 51 prosecution witnesses in the challan and out of 51 witnesses, statements of 13 witnesses have been recorded. The statement of the complainant-Arti Mahajan was recorded in-part on 16.05.2015 and was deferred for want of original complaint with the challan at the request of the Special Public Prosecutor but till date neither the original complaint was placed on record before the trial Court by the prosecution nor the statement of the complainant was concluded. The witnesses examined so far by the prosecution have not supported the prosecution case. It is submitted that the petitioner as well as accused-Surjeet Kumar filed applications for grant of bail before the Court below. Court below vide order 04.11.2016 rejected the bail application of the petitioner but accepted the bail application of the co-accused Surjeet Kumar. Learned counsel also submitted that the petitioner and co-accused Surjeet Kumar were charged for the same offences by the trial Court, but granted bail to the co-accused and denied bail to the petitioner. He submitted that the rule of parity demands that the petitioner is also entitle to bail as is granted to the co-accused Surjeet Kumar. 4. Learned counsel also submitted that the petitioner and co-accused Surjeet Kumar were charged for the same offences by the trial Court, but granted bail to the co-accused and denied bail to the petitioner. He submitted that the rule of parity demands that the petitioner is also entitle to bail as is granted to the co-accused Surjeet Kumar. 4. Learned counsel submitted that the petitioner is in custody w.e.f. 04.09.2013 and till date only 13 witnesses have been examined by the prosecution in-spite of the fact that the trial Court has fixed numerous calendars and dates of hearing as well, but the prosecution failed to produce the prosecution witness and therefore the prosecution is only liable for delay in the trial and since about 40 witnesses are still to examine by the prosecution and the pace in which the prosecution is producing witnesses, it will take decades to complete the trial. The fundamental right of the petitioner to speedy trial is also infringed and therefore, the petitioner is also entitled to bail on the ground of delay in trial. It is submitted that the denial of bail at this stage will amount to punishment before conclusion of trial which is against the well settled principles of law. The petitioner cannot be punished without giving him fair opportunity to defend the case properly which he cannot do while in custody and therefore, further detention of the petitioner will be against the mandate of Article 21 of the Constitution. It is stated that there is no likelihood of or otherwise of the petitioner absconding or attempting to temper with the prosecution evidence, therefore, the petitioner is entitle to bail. 5. On the basis of submissions made above, learned counsel seeks release of petitioner on bail. 6. Objections stand filed on behalf of respondents opposing the bail application stating therein that petitioner has been rightly arrested in the case in accordance with the procedure established by law and is presently facing trial in FIR No. 183/2013 registered with Police Station Bahu Fort under Section 376(2)(C) and 109 RPC. There is incriminating evidence against the petitioner to connect him with the crime he has committed. The petitioner is not entitle to the concession of bail as per the statutory law and he is languishing in jail in accordance with the procedure established by law. There is incriminating evidence against the petitioner to connect him with the crime he has committed. The petitioner is not entitle to the concession of bail as per the statutory law and he is languishing in jail in accordance with the procedure established by law. Those who are unruly and wayward having no respect for law of the land and right of the other fellow human beings, cannot seek indulgence of the Court for enforcement of their own rights, as such instant application does not merit consideration and needs outright rejection. The interest of the society and liberty of the individual has to be balanced. The case in hand is a fit one where collective interest of the community outweighs the right of the personal liberty of the petitioner and granting of the bail impede not only the administration of justice but also is going to injure the public interest rather than to serve it, as such the instant application deserves to be rejected on this count also. 7. The petitioner is involved in gang rape upon mentally retarded girls residing in Home for Mentally Retarted Children, Channi Himmat, Jammu. The petitioner has, thus, committed a heinous crime and deserves to be tried and convicted. Moreover, evidence led by the prosecution at this stage cannot be appreciated as material witnesses are yet to be examined in the said case and they may improve their statements in support of the prosecution case. There is no reason to say that the petitioner has not committed the offence for which he is charged. Lastly, it is prayed that the application of the petitioner for grant of bail may kindly be dismissed at this stage being pre mature. 8. Heard learned counsel for the petitioner as well as learned State Counsel and considered the law on the subject. 9. From the perusal of trial Court file, it is evident that the prosecutrix being the minors girls who were inmates of HOME at the hands of petitioner and others were made to sexually abused. This matter was referred to District Magistrate, Jammu, who on 11.7.2013 constituted a five members Committee headed by IAS Sushma Chauhan. There after a report was submitted by Committee on 27.8.2013 in two parts. One part was containing general conditions of HOME and second part was containing sexual ravishment of five mentally retarded girls. This matter was referred to District Magistrate, Jammu, who on 11.7.2013 constituted a five members Committee headed by IAS Sushma Chauhan. There after a report was submitted by Committee on 27.8.2013 in two parts. One part was containing general conditions of HOME and second part was containing sexual ravishment of five mentally retarded girls. The said report was forwarded to SSP Jammu and FIR under section 376 was registered in Police Station Bahu Fort and SIT was constituted which was headed by Rameshwer Singh, SP, City South, Jammu. During investigation five girls were examined by Board of Doctors (Gynecologist) on 09.09.2013. Detailed Investigation was conducted. It was found that five mentally retarded victims, two of them deaf and dumb, all with below average intelligence, were subjected to sexual abuse from time to time in the Home by the petitioner, who was CHOWKIDAR and another (former Chowkidar) of said Home. It was also found that one victim was got pregnant and matter was brought to the knowledge of official of home, but all of them got the pregnancy abort with the help of Doctors at Astha Nursing Home, Ambphala. 10. After completion of investigation, challan was produced and except petitioner and one Surjeet Kumar, all other Girdhari Lal Koul, Principal; Rajinder Kapoor, Secretary; P.N. Dubey Member; Ravi Dubey, President of Managing Committee of HOME; Dr. Raman Sharma and Dr. Raj Sharma, proprietor of Astha Nursing Home were discharged. Accused-Petitioner and Surjeet Kumar have been charge sheeted u/s 376(2) (c) RPC on 24.7.2014; on 4.11.2016 Surjeet Kumar has been granted bail on the same day bail petition of present accused has been dismissed. 11. From the perusal of file, it is evident that both accused have been charge-sheeted u/s section 376 (2) (c) RPC. Accusation is same. Offence u/s section 376 (2)(c) RPC is punishable with minimum ten years and may extend to life imprisonment. Allegations are serious in nature. 12. Both the accused moved two separate bail petitions, but both have been decided on one date. On 04.11.2016 one application for grant of bail by Surjeet Singh has been allowed and that of petitioner has been dismissed by way of separate order. This is not proper; judge should have passed conjoint order. Trial court order does not show any reason for grant of bail to one accused and rejection of another, especially, when both have been charge- sheeted on same accusation. This is not proper; judge should have passed conjoint order. Trial court order does not show any reason for grant of bail to one accused and rejection of another, especially, when both have been charge- sheeted on same accusation. There should not be disparity in two orders, when both stand filed on same grounds. 13. Further, order of rejection in bail petition of petitioner has been passed on 4.11.2016 by trial court, now till today more witnesses would have been examined. 14. So it would be appropriate for petitioner to move fresh application for bail before trial court, who shall pass fresh order keeping in view the fact that other co-accused person has been granted bail on same grounds. Petitioner can also take additional grounds due to change of circumstances. Trial court shall also consider law on the subject. 15. This petition is disposed of accordingly without commenting on merit of petition.