Judgment 1. The petitioner herein is craving for bail consequent upon his arrest on 25.04.2018 in FIR No. 02/2018 registered in Police Station Keran, Kupwara for commission of offence under Sections 376, 506 RPC, and is facing trial at present in the court of Principal Sessions Judge, Kupwara. 2. An application for grant of bail moved earlier before the court of learned Principal Sessions Judge, Kupwara has been rejected by the said court vide order dated 31.12.2018 while making the observations that:— “the allegations against the applicant/accused, in brief are that having committed rape on the prosecutrix, he threatened her to do away with her life, in case she would disclose about the same to the family members. Further that on account of aforesaid rape, the prosecutrix became pregnant and later on she delivered a baby. Admittedly, the DNA report is negative as it has been mentioned in the result of examination that DNA profile of baby was not found to be consistent as biological child of Parvez Ahmed Lone but to my mind merely in the basis of the aforesaid report it cannot be said at this stage of the case that the aforesaid allegation of rape against the applicant/accused is untrue. The aforesaid DNA report is yet to be scrutinized during the course of trial of the case. As noticed earlier that the prosecutrix has categorically stated during the course of her statement recorded under Section 164-A Cr.PC that the accused had committed rape on her. To my mind, there are reasonable grounds for believing at this stage of the case that the accusations against the applicant/accused is prima facie true, as such, in view of the proviso appended to Section 497-C Cr.PC, the accused is not entitled to be released on bail at this stage of the case.” 3. On perusal of the petition and the status report filed by the respondents, it is clear that the investigating agency/prosecution has laid edifice of the case on the set of allegations as were levelled against the petitioner herein in terms of FIR No.02/2018 lodged by the first informant, father of the alleged prosecutrix, before the police station, Keran, Kupwara on 05.04.2018. 4. On registration of the case, the Investigating Officer examined the witnesses including the alleged prosecutrix who had been produced before the learned Magistrate on 04.05.2018. 4. On registration of the case, the Investigating Officer examined the witnesses including the alleged prosecutrix who had been produced before the learned Magistrate on 04.05.2018. In her statement she had portrayed the accusations against the petitioner herein as:— “that the accused/petitioner herein entered the house of the prosecutrix, when she was alone there, and asked for glass of water. After drinking the water, accused/petitioner gave the glass back to the prosecutrix and in the process he caught hold from her back and torn her clothes, thereafter raped her forcibly. After the said occurrence, he threatened to kill her in case she deposed the same to anybody in the family. In the meantime she remained pregnant and after the period of nine months delivered a male baby.” 5. The final report(challan) has been submitted before the learned Magistrate who committed it to the Sessions court. The conclusion of the investigation has been summed up by the Investigating officer as:— “that during the course of investigation the Investigating officer proceeded to the spot and found the victim has delivered a male baby and statement of the victim was recorded u/s 161 Cr.PC. In her statement, the victim had deposed that her father is a handicapped person and her mother being laywoman and due to poverty her parents often remained out of home in connection with livelihood and she always remained alone at home. Taking advantage of her loneliness the accused/petitioner herein often visited her home and forcibly subjected her to illicit intercourse and threatened her if she disclose the same she will be killed. Resultantly she did not disclose the same to anybody and during this time the accused continuously assaulted her sexually, due to which she became pregnant. The victim had requested the accused to marry her keeping in view her pregnancy. The statement of other witnesses were also recorded. The victim and the newborn baby were medically examined and samples for DNA profiling together with the accused/petitioner and the newborn baby were collected and sent to CFSL, New Delhi for resemblance if any. On account of circumstantial/material evidence prima facie offence under Sections 376, 506 Ranbir Penal code was made out against the accused prior to DNA report, who was accordingly arrested in the said case.” 6. On account of circumstantial/material evidence prima facie offence under Sections 376, 506 Ranbir Penal code was made out against the accused prior to DNA report, who was accordingly arrested in the said case.” 6. It may sound proper to state herein that during the investigation of the case, an application had been presented before the learned Judicial Magistrate 1st Class, Kralpora on 01.05.2018, wherein the petitioner had made a request for directing the Investigation Officer to subject him to DNA test, which, according to him, will be relevant for the investigation and conclusion of the case. The concerned Magistrate referred the said application to the investigating agency with the endorsement, “forwarded to SHO, P/S Keran to proceed under law.” 7. Mr. Majid, learned counsel for the petitioner has contended that the power of the Court in terms of Section 498 Cr.PC requires to be exercised herein to meet the ends of justice. The observations made by the learned Sessions Judge while rejecting the bail application should not come in the way of this Court to exercise such power. It is being emphatically contended that the prosecution has laid foundation of its case on the birth of a child to prosecutrix and the paternity of whom was attributed to the petitioner herein and the same having been proved false during the further investigation of case, the petitioner herein had to be set free. It is also being contended that the observations of the learned Sessions Judge, while rejecting the bail application being unjust and having propensity of failure of justice, are required to be reversed. It is also his submission that the petitioner as presumably innocent is entitled to concession of bail and his further incarceration is likely to result in pre-trial punishment. 8. On the other hand, Mr.Sajjad, learned GA has submitted that having regard to the severity of punishment and seriousness of the offence, the bail petition is required to be rejected. He has also referred to the judgment of Delhi High Court rendered in Sulaiman Ahmadi through Pairokar Poorvi Singh Vs. State decided on 21.09.2017, in order to substantiate his arguments for rejecting the bail application. 9. The view of various High Courts regarding the nature and power of High Court in terms of Section 498 Cr.PC is almost consistent. Same is stated to be very wide. State decided on 21.09.2017, in order to substantiate his arguments for rejecting the bail application. 9. The view of various High Courts regarding the nature and power of High Court in terms of Section 498 Cr.PC is almost consistent. Same is stated to be very wide. In Emperor V. Hutchinson ( AIR 1931 All 356 , 358: 32 Cri LJ 1271) (Merut Conspiracy Case), it had been emphasized that the powers of High Court under Section 498 Cr.PC are plenary in nature. May it be so, the power is discretionary in nature and same has to be used in fair and just manner. It would be, thus, unwise to make an attempt to lay down straitjacket formula for use of discretion. Their Lordships in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 while making reference of High court of Calcutta in Nagendra v. King-Emperor [AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732] held that the object of bail is to secure the attendance of the accused at trial and, thus, the Courts have to examine the issue of grant of bail in this context. On survey of various cases, their lordships emphasized that the grant of bail being a rule. The underlying principle to be borne in mind is that a person who is free would be in a better position to look after his case and properly defend himself as presumably innocent person, therefore, is entitled to freedom and every opportunity to look after his own case. The power of High Court has not been restricted by the provisions in terms of which it is granted. It would be pertinent to quote Section 498 Cr.PC herein:— “498. Power to direct admission to bail or reduction of bail. .................the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced...........” 10. The fact remains that there is statutory bar under Section 497-C of Cr.PC for grant of bail for the commission of offence of rape, as alleged. Twin conditions prescribed under Section 497-C of Cr.PC have to be satisfied for enlargement on bail. So it is to be seen whether the petitioner has been able to satisfy these twin conditions. The fact remains that there is statutory bar under Section 497-C of Cr.PC for grant of bail for the commission of offence of rape, as alleged. Twin conditions prescribed under Section 497-C of Cr.PC have to be satisfied for enlargement on bail. So it is to be seen whether the petitioner has been able to satisfy these twin conditions. The first being the Public Prosecutor having been afforded opportunity and secondly the bail having to be granted when there are reasonable grounds to believe that he is not guilty. 11. Their lordships of Hon’ble Apex Court in the case of ‘Zahira Habibulla Sheikh(5) and Anr. Vs. State of Gujarat and Ors. (Best Bakery case) (2006) 3 SCC 374 ,’ while emphasising on need for fair trial made the following observations:— “36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson’s eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.” 12. It has also been observed by their lordships in ‘Zahira Habibulla H.Sheikh and Anr. Vs. State of Gujarat and Ors. (Best Bakery case) (2004) 4 SCC 158 , emphasising on duties of the Public Prosecutor:— “...If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand, appropriately within the framework of law. It is as much the duty of the prosecutor to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.” 13. The impact of the statutory bar created under Section 497-C Cr.PC for grant of bail has to be considered while having in view fundamental concept of criminal jurisprudence and which has not been substituted. The prosecution is required to prove the guilt of the accused beyond reasonable doubt. An accused in a criminal case is to be presumed innocent till his guilt is proved at trial and this settled principle of criminal jurisprudence cannot be said to have overshadowed by the enactment of Section 497-C of Cr.PC. 14. In various statutes, bar has been created for grant of bail, entitlement to which is to be ordinarily considered in terms of Section 497/498 Cr.PC. Principle has been laid to consider the plea of bail while providing an opportunity to oppose bail to the Public Prosecutor and recording reasons that there are reasonable grounds to believe the accused is not guilty or reasonable grounds to believe the accusations against such person are prima facie true, the accused shall not be released on bail. The scope for recording reasons and framing opinion in negative, in the instant case, is thus, to be seen in the above backdrop. It cannot be ignored that 15. Article-21 of the Constitution of India deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. The scope for recording reasons and framing opinion in negative, in the instant case, is thus, to be seen in the above backdrop. It cannot be ignored that 15. Article-21 of the Constitution of India deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is this only Article in the Fundamental Rights Chapter(Part III), which cannot be suspended even in emergency. The said Article has been interpreted liberally in Maneka Gandhi’s case (Maneka Gandhi v. Union of India (1978) 1 SCC 248 ( AIR 1978 SC 597 ), and so no person is to be deprived of his life and personal liberty except according to fair, just and reasonable procedure established by law. The concept of reasonableness runs like a golden thread through the entire fabric of the Constitution and it is not enough for the law to provide some semblance of a procedure. The conditions laid down in terms of Section 497-C of Cr.PC certainly makes drastic inroads into the fundamental right of liberty. The object behind the enactment of same is certainly to curb the recurrence of offences of rape. The principle so laid under the provision cannot be pushed so far to divest the court of power to examine the merit of an individual case. A criminal court appears to be under an obligation to see whether material on record ex-facie indicates probability of innocence of accused. If to a reasonable extent probability swing in favour of the accused the court cannot shut its eyes and wait the conclusion of trial. A fine balance thus, is to be drawn between presumption of innocence available under criminal jurisprudence and the rider placed by Section 497-C of Cr.PC. The interpretation of Section 497-C of Cr.PC is to be made thus, without making the concept of innocence totally redundant. 16. In the instant case on the basis of material produced by the prosecution before the learned trial court, the petitioner herein has been held prima facie guilty for the commission of offence under Sections 376, 506 Ranbir Penal code. At the time of filing of the report under Section 173 Cr.PC, it is being admitted by the Investigating Officer that the result of DNA report is awaited. At the time of filing of the report under Section 173 Cr.PC, it is being admitted by the Investigating Officer that the result of DNA report is awaited. The result of DNA has been submitted as noted above, but the Investigating agency has not added any comment on the impact of its case as projected earlier on submission of said supplementary report. 17. We shall have to remain live to the legal position about the role of an investigating officer while investigating an incident regarding the commission of offence. He is not expected to bloster the case of the complainant. He has to be impartial. On submission of supplementary report, it was, thus, for him i.e., Investigating Officer to apprise the court about impact or significance of the DNA report and why he had opted for same. Taking note of the fact that FIR was lodged after the delivery of the child born to the alleged prosecutrix and core of the prosecution case had been the birth of child was the outcome of the rape committed on the alleged prosecutrix, which had led to consequent pregnancy and delivery of the child, the result of DNA could not melt in insignificance, while considering the entitlement of the petitioner herein to bail. There are sufficient basis to opine for this limited purpose that a cloud has been cast on the authenticity and veracity of this case (which of course the prosecution may try to remove during the ensuing trial). In this view of the matter, I am of the opinion that it would result in miscarriage of justice in case prayer made by the petitioner herein at this stage is ignored without giving a proper thought on the application of principle underlying behind enactment of Section 497-C of Cr.PC. 18. Rape is attributed to the petitioner for having fathered the child. The alleged victim in her statement (under Section 164-A Cr.PC) refers to a single event of sexual intercourse. Investigating officer on his own tried to multiply it in the text of challan, which he has prepared. The alleged victim was not asked by the Investigating Agency to add her explanation after DNA report bracketed the allegation as false. It makes not only it difficult but uncalled to frame tentative opinion against the accused in the absence of any explanation from prosecution. The alleged victim was not asked by the Investigating Agency to add her explanation after DNA report bracketed the allegation as false. It makes not only it difficult but uncalled to frame tentative opinion against the accused in the absence of any explanation from prosecution. Ex-facie the petitioner is able to carve out a case for relaxation of the bar so created and consequently pending trial he is held entitled to bail. 19. Therefore, it is deemed expedient in the ends of justice to admit the petitioner herein to bail subject to furnishing bail bond by two sureties in the amount of Rs.50,000/-, to the satisfaction of learned trial Judge, conditioned that the petitioner herein:— (a) shall appear in person before the trial court on each and every date of hearing; (b) shall not leave the territory of the Valley without prior permission of the trial court; (c) shall not tamper with the prosecution evidence; and, (d) shall not change his place of residence until permitted by the trial court. 20. Trial court is kept at liberty to pass appropriate orders hereinafter for regulating the conduct of the accused for ensuring his presence at trial and the trial being conducted in a fair manner. 21. The Investigating agency shall submit additional report in terms of Section 173(8) Cr.PC in the light of DNA report and may if necessary have further investigation for ascertaining the true and real state of affairs, connected with the birth of child as expeditiously as possible, not exceeding three weeks from today. 22. A copy of this order be supplied to the learned trial court.