JUDGMENT : 1. The petitioner herein is craving for bail consequent upon registration of FIR No. 57/2018 in Police Station Yaripora, Kulgam, for commission of offence under Sections 366, 498, 109, 120-B, 376, 343 RPC, and is facing trial at present in the court of learned Principal Sessions Judge, Kulgam. 2. An application for grant of bail moved earlier before the court of learned Principal Sessions Judge, Kulgam has been rejected by the said court vide order dated 19.02.2019 while making the observations that:- “...In view of the recent incidents of crime against women, particularly, incident of rape of minor, the courts have already sounded that precaution is to be taken by considering the bail plea of the offences of such heinous crime. It has been impressed upon the Judicial Officers and Sessions Judges dealing with such cases to take care and caution in exercising discretion to consider their release or otherwise of accused on bail pending investigation and trial, lest the discretion so exercised adverse the societal interests, investigation and fair play for fair trial. With regard to the contention of learned counsel for the accused that the continuous incarceration of accused is violation of his right to life and personal liberty guaranteed under Article 21 of the Constitution of India, I would like to say that, the said Article not only takes within its fold the enforcement of right of the accused but also the right of the victim. In certain situation, even a witness to the crime may seek for and shall be granted protection by the State. The Hon'ble Supreme Court in case titled Chairman Railway Board Vs. Chandrima Dass 2000 (1) Supreme 265 , where the victim was not a citizen of this country but had come as a citizen of Bangladesh, the Hon'ble Apex Court has observed that although the victim was a citizen of Bangladesh, she was nevertheless entitled to all constitutional rights available to a citizen so far as right of life was concerned, however, she was entitled to avail dignity and was also entitled to the protection of her person as guaranteed under Article 21 of the Constitution. The Hon'ble Apex Court has further held that as a citizen of other country, she could not be subjected to treatment which was below her dignity nor she be subjected to physical exploitation at the hands of government employee, who outraged her modesty, thus, right available to her under Article 21 of the Constitution was violated. So, in the present case, there is no question of violation of right to life and personal liberty guaranteed under Article 21 of the Constitution as the accused is being denied bail under the procedure established by law. Keeping in view the aforementioned facts and circumstances of the case, the nature and seriousness of the charge, the bail application is rejected. Bail application stands disposed off accordingly...” 3. Thereafter, the petitioner herein has approached this Court by medium of the instant petition for his admission on bail while pleading that:- (i) The petitioner who was charge sheeted on 30.11.2018 under Sections 366, 109 & 376 RPC, has denied the charges and seeks to have a fair trial. (ii) While leading the evidence and recording the statement of alleged prosecutrix nothing incriminating has been said by the prosecutrix against the petitioner and she categorically stated that the petitioner was not with the other accused persons on the date of occurrence. (iii) The petitioner continues to suffer incarceration since long. (iv) The allegation against the petitioner in the police challan is that the petitioner facilitated the other accused persons in the commission of offence, however, is not involved in the offence in any manner but is sought to be implicated on surmises of Investigating officer. (v) Since investigation has been completed and there is no scope of petitioner tampering with evidence or influence witnesses, the ends of justice demand released of petitioner on bail. (vi) That while recording the statement of the prosecutrix there is nothing against the petitioner even the presence of the petitioner on the date of occurrence has been ruled out by the witness. (vii) That the petitioner's minor son is suffering from acute ailment and is presently being treated in SMHS, Srinagar through its special Branch Institute of Medical health and Nero Sciences. There is none to attend him. 4. (vii) That the petitioner's minor son is suffering from acute ailment and is presently being treated in SMHS, Srinagar through its special Branch Institute of Medical health and Nero Sciences. There is none to attend him. 4. Respondents in their objections have submitted as under:- (a) That, a case FIR No. 57/2018 was registered against the petitioner in Police Station Yaripora on 19.08.2018 under Sections 376, 498, 120-B, 343 RPC on a written complaint by one Gh. Nabi Sheikh to the effect that he was married with one Sonia R/o Orissa Bihar legally 11 years ago. On 02.08.2018, the wife of the complainant proceeded to the market of Kathpora but did not return back. Thereafter he came to know that his wife has been abducted by one Ali Mohd. Sheikh with the aid of other accused persons including the petitioner herein with the intention to rape her and have confined her at some unknown place. (b) That, during the course of investigation involvement of accused persons including the petitioner herein has been established. The statement of prosecutrix under Section 164-A clearly reflects that she was allured by accused persons to come to Kulgam for the purpose of allotment of a hut/shed. However, after reaching Kulgam, she was taken to Aripora area and was kept in the house of Ali Mohd. Sheikh, where she had been ravished and subjected to gang rape. (c) That, there exists bar under Section 497-C of Cr.P.C. in granting the bail to the accused persons. As such until and unless the other material witnesses including the Medical witness and the I.O are recorded the bail of the accused persons will be against the mandate of 497-C read with 114- B which presumes the commission of rape unless rebutted. 5. Learned counsel for the petitioner laid emphasis on the argument that the offence of rape cannot be said to have been committed as the story drawn in terms of the First Information Report or the deposition before the trial Court reflects the same being improbable to the perception and understanding of a common man. It is also his contention that in case the allegation regarding forcibly taking away the prosecutrix would have some semblance of truth, the Medical Officer, having examined the prosecutrix, would have found the marks of struggle or violence on the person of alleged prosecutrix. It is also his contention that in case the allegation regarding forcibly taking away the prosecutrix would have some semblance of truth, the Medical Officer, having examined the prosecutrix, would have found the marks of struggle or violence on the person of alleged prosecutrix. Furthermore, according to him, it is being admitted in the prosecution story that the alleged prosecutrix was taken from the market of Kathpora to a distant place, in case it would have been so she would have raised hue and cry to save herself from the clutches of the accused/petitioner herein, which being not present in the prosecution case, the allegations are to be treated as untrue and the accused held entitled to bail. The learned Principal Sessions Judge, Kulgam, has failed to take note of these facts while considering the bail application filed in this behalf for disposal. Learned counsel further pleaded that bail and not jail being the principle, this Court is required to be alive to this principle and consider the bail application accordingly. 6. On the other hand, learned AAG submitted that the number of witnesses are yet to be examined and as the petitioner herein has been prima facie held guilty for the commission of offence under Section 376-D, 366 & 109 RPC along-with other accused, it would be improper at this stage to return any finding on the guilt or otherwise of the petitioner herein. Learned Principal Sessions Judge, Kulgam, according to him, has properly dealt with the matter and framed opinion that the petitioner herein has not been able to come out of the rigour of Section 497-C of Cr.P.C. 7. Considered the rival arguments of the learned counsel for the parties. 8. On perusal of the material available before me, it is evident that the bail petition filed before the court of learned Principal Sessions Judge, Kulgam has been rejected by the said court with observation above noted. It may also require a mention herein that the petitioner has been held prima facie guilty for the commission of offence under Section 376 RPC on 30.10.2018. He has been charged to have called the alleged victim herein to Kulgam for the purpose of allotment of a residential hut/shed. It may also require a mention herein that the petitioner has been held prima facie guilty for the commission of offence under Section 376 RPC on 30.10.2018. He has been charged to have called the alleged victim herein to Kulgam for the purpose of allotment of a residential hut/shed. After reaching Kulgam, she was deceitfully taken to Aripora and kept in the house of one of the accused, where she had been subjected to rape by accused Ali Mohammad and his son Sheraz. Learned counsel for the petitioner while putting forth the submission has also pointed out the assertion made by the alleged victim in the cross-examination that the petitioner herein, who figures as accused No. 4, was not accompanying the other accused. In her statement recorded under Section 164- A Cr.P.C., she has indicted accused other than Ali Mohammad and Sheraz Ahmad of facilitating her abduction. In deposition before the court she has however stated that Bashir Ahmad accused was not at fault and the present petitioner was not anywhere. She has also stated that her marriage with Ali Mohammad Sheikh was solemnized to which one Molvi Sahib was reluctant to agree. Complainant has said that prosecutrix who is from Bihar had already solemnized marriage with one Abdul Rehman Sheikh but was living with him as his spouse. It is also being stated that had the accused given her money for construction of shed, she would not have lodged compliant against them. 9. The power of the High Court under Section 498 Cr.P.C. to entertain bail petition is plenary. In Emperor Vs. H.L. Hutchinson, AIR 1931 All 356 (Meerut Conspiracy Case) there lordships have observed that same is unfettered and is not controlled by any condition. It has not been restricted by the provision in terms of which it is granted. It would be proper to quote herein Section 498 Cr.P.C.:- “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. 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. Having regard to the nature of the power vested in the High Court, I am of the opinion that mere decline of learned trial court to grant bail would not come in the way of this Court to exercise this power. The Bombay High Court in Devidas Raghu Naik vs. The State, (1989) CriLJ 252, while considering that the jurisdiction vested with the High Court and the Sessions court under Section 498 Cr.P.C. (Section 439 of Central Code of Criminal Procedure) though concurrent, refusal to grant bail by the Sessions court does not operate as a bar for the High Court in entertaining a similar application 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 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 facts, the said application be dismissed. The co-ordinate Bench of this Court in Tariq Ahmad Dar & Anr. Vs. State & Ors., 2008 (3) JKJ 410 [HC] has made the similar observation on the basis of the principle of law laid down in Devidas case. 11. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan, (2005) 2 SCC 42 , their lordships have held that the principles of res-judicata and principles analogous thereto though are not applicable in criminal proceedings, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in the country. The finding of the higher court has to receive serious consideration at the hands of the court entertaining a bail application at a later stage when same had been rejected earlier. Further it has been observed that ordinarily the issues which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as the same would lead to speculation and uncertainty in the administration of justice and may lead to forum hunting. Further it has been observed that ordinarily the issues which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as the same would lead to speculation and uncertainty in the administration of justice and may lead to forum hunting. Para 20 of the judgment supra shall be advantageous to be extracted hereinunder:- “20. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country.” 12. It is not being denied herein that the petitioner has been held prima facie guilty for commission of offence under Section 376 RPC on 30.10.2018 and thereafter the prosecution has been asked to lead evidence. Only few witnesses have been examined whose deposition have been brought on record. 13. The impact of the statutory bar created under Section 497-C Cr.P.C. 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.P.C. 14. 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.P.C. 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.P.C. Principle has been framed to consider the plea of bail while providing an opportunity to oppose bail to the Public Prosecutor and recording reasons. If reasonable grounds exist to believe the accusations against such person are prima facie true, the accused cannot 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 personal liberty of the accused is sacrosanct and has to suffer eclipse only in terms of the procedure established by law. 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 swings 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.P.C. The interpretation of Section 497-C of Cr.P.C. is to be made thus, without making the concept of innocence totally redundant. 15. In the instant case, the statement of alleged prosecutrix on its face value does not point out sexual aggression having been made by the petitioner herein. In her cross examination she has stated that the petitioner has also not taken her anywhere. Grievance has been restricted to non-payment of money for construction of shed. Nonetheless the fact that the petitioner had been held prima facie guilty of the commission of offence referred above, exercise of power by this Court under Section 498 Cr.P.C. for grant of bail, pending trial is still warranted. The observations so made herein for grant of bail shall not be treated, however, to be any opinion on the merits of the case, which the prosecution has projected against the accused including petitioner herein before the learned trial court. The observations so made herein for grant of bail shall not be treated, however, to be any opinion on the merits of the case, which the prosecution has projected against the accused including petitioner herein before the learned trial court. The prosecution would be at liberty to take all such necessary steps, as may be deemed proper under law to prove guilt of the accused. Accordingly, 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. 16. Trial court shall be at liberty to pass appropriate orders hereinafter for regulating the conduct of accused for ensuring his presence at trial and the trial being conducted in a fair manner. 17. Disposed of, as indicated above.