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2019 DIGILAW 418 (JK)

Naresh Singh v. State of J&K

2019-09-20

TASHI RABSTAN

body2019
JUDGMENT : Tashi Rabstan, J. The applicant who is in judicial custody since 01.11.2018, has moved this application seeking grant of bail in case FIR No. 400/2018, registered by Police Station, Domana for allegedly committing the offense punishable under section 12 of Protection of Children from Sexual Offences Act (hereinafter to be referred as POCSO Act) and section 342 of Ranbir Penal Code (hereinafter to be referred as RPC). 2. The prosecution case in brief is that on 01.11.2018, the complainant namely Bharat Bhusan Raina along with his wife lodged a written report at P/S Domana stating therein that his daughter-presecutrix, 16 years old, is studying in St. Xavier School Barnai and the accused Naresh Singh always used to tease his daughter since 2016 and used abusive words to instigate her for illicit relations. Many times, the accused used to forcibly sit with his daughter in the Metador when she would go for tuition or school and always misbehaved with her due to which she felt ashamed. The parents of the accused were informed number of times about his activities and once they made apology in writing. On 28.10.2018, when his daughter went to School and alighted from the school van, the accused who was already there along with his vehicle bearing registration No. JK02BQ-5672, forcibly pulled her inside his car and molested her and also kept her inside his Car for more than 02 hours. The accused further threatened her that in case she raises cry he will make her naked video and would upload the same on the internet. They started search of her and when they reached near the School, accused on seeing them pushed her outside of Car and fled away. 3. The applicant has already filed application for grant of bail before the learned Principal Sessions Judge, Jammu, which came to be dismissed on 29.05.2019, mainly on the ground that prima facie there are reasonable grounds for believing that the applicant-accused has committed grave and serious offence, which would evoke social disgust and social censure of the act imputed. It is also observed while rejecting the bail that there is possibility of accused tampering with the prosecution evidence and absconding to avoid justice in the face of serious accusation of aggravated sexual assault. Hence, the applicant is before this court praying for grant of bail. 4. It is also observed while rejecting the bail that there is possibility of accused tampering with the prosecution evidence and absconding to avoid justice in the face of serious accusation of aggravated sexual assault. Hence, the applicant is before this court praying for grant of bail. 4. I have heard and considered the rival contentions of the learned counsel appearing on respective sides and also perused the file. 3 Bail App 89/2019 5. Learned counsel for applicant, to cement the case set up by applicant, has submitted that the charges stands framed in the case and trial is already commenced. Out of total nine witnesses, prime witnesses are already examined including statement of prosecutrix has been recorded on oath before the court and there is no question of tempering with the evidence or threatening the witnesses. It is also stated that applicant-accused is pursuing his Master Degree from University of Jammu, so there is no question of absconding or jumping out of bail. He contends that the prosecutrix alongwith her parents have manipulated the whole facts as statement made by her on oath that on 28.10.2018, when she went to School and alighted from the school van, the accused who was already there along with his vehicle forcibly pulled her inside his car and molested and confined her for two hours, is highly improbable for the reason that 28th of October, 2018 falls Sunday, and being Sunday there were no extra classes by the School Authorities to attend the tuition classes and neither any school buses were operated on that day. In support of his averment, applicant has produced the certificate issued by St. Xavier Convent School, wherein the Principal of school has certified that school never conducts any classes on Sunday. School buses also don’t operate on routes on Sunday. 6. The non-applicant State has filed the objections strongly opposing therein the prayer of the applicant by submitting that applicant-accused is involved in a heinous offence against the whole society and carries punishment under the head of an aggravated sexual assault under section 9 of the POCSO Act and carries severe punishment, and if, the accused is enlarged on bail there is every probability/likelihood of his hampering/tempering with the prosecution evidence. It is also contended that applicant-accused has failed to make out a case for his admission to bail before Principal Sessions Judge, Jammu, where the application of the applicant-accused for grant of bail was rejected by the Court after taking into consideration the whole record. 7. It is a trite law that personal liberty is a very precious fundamental right enshrined in Article 21 of the Constitution of India and deprivation of liberty is a matter of grave concern. It should be curtailed only when it becomes imperative to the peculiar facts and circumstances of the case. When a person is arrested on the allegations of commission of non-bailable offence, two conflicting interests are pitted against each other, that is, liberty of individual involved and interest of society so as to prevent crime and punish criminal. It becomes responsibility of the courts to weigh the contrary factors. The object of detaining a person in judicial custody is to direct him to join the investigation, secure his presence at trial, he may not interfere with investigation, intimidate witnesses, tamper with evidence, flee from justice, chances of repeating the offence etc., and if this purpose can be fulfilled by putting certain conditions and securing bail bonds, it would be an ideal blending of two apparently conflicting claims. 8. A fundamental postulate of Criminal Jurisprudence is the presumption of innocence, which means a person is believed to be innocent until found guilty. Another facet of our Criminal Jurisprudence is that grant of bail is the general rule and putting a person in jail is an exception (Bail but not the jail). Grant or denial of bail is entirely the discretion of a Judge considering a case, but such discretion should be exercised judiciously and not arbitrarily. 9. While examining the scope of grant of bail, the Supreme Court in a landmark decision rendered in the case of Sanjay Chandra vs Central Bureau of Investigation, AIR 2012 SC 830 , has held that the object of bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment unless it is required to ensure that the accused will stand his trial when called upon. It was also observed that detention in custody pending completion of trial could be a great cause of hardship. Deprivation of liberty must be considered a punishment unless it is required to ensure that the accused will stand his trial when called upon. It was also observed that detention in custody pending completion of trial could be a great cause of hardship. While refusing the 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 of an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 10. Filing of successive bail application is permissible in law and the applicant herein has a right to make successive applications for grant of bail, however, this Court while entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail application was rejected. In the present case, the court below has rejected the bail mainly on the ground that prima facie there are reasonable grounds for believing that the applicant-accused have committed grave and serious offence. It is also observed by the Court below while rejecting the bail that there is possibility of accused tampering with the prosecution evidence and absconding to avoid justice in the face of serious accusation of aggravated sexual assault. However, the court below has overlooked the fact that alleged date on which the applicant-accused has committed the crime i.e. 28.10.2018 falls Sunday, so the prosecution case that when the prosecutrix went to School and alighted from the school van, the accused who was already there along with his vehicle forcibly pulled her inside his car and molested and confined her for two hours, becomes prima facie false. 11. I am in total agreement with the Court below that any sexual assault upon a girl child is considered as one of the most heinous crimes and dastardly acts having social, psychological, physical and emotional repercussions on the life and prospects of a victim. Such an assault brings bad name to a woman and becomes tool in the hands of insensitive people to ostracize her in society and attach social stigma to her name and in such cases judicial discretion for granting bail in favour of accused cannot be exercised in a routine matter. Such an assault brings bad name to a woman and becomes tool in the hands of insensitive people to ostracize her in society and attach social stigma to her name and in such cases judicial discretion for granting bail in favour of accused cannot be exercised in a routine matter. However, the emotions should not sway a judge to decide the matter before it, howsoever gruesome the incident may be, but the decision must by based upon the facts unfolded before it and the law applicable to it. It is also a settled principle that the gravity and seriousness of the offence with which the accused is charged with may be a ground but cannot be a sole decisive ground to deny bail rather comparative factors like danger of accused absconding or fleeing if released on bail, likelihood of offence being repeated, reasonable apprehension of witnesses being tampered should be taken in consideration while rejecting the bail. 12. In the present case, the fact that out of nine prosecution witnesses, seven material witnesses stands already examined before the court including prosecutrix, so the mere apprehension of the respondent that the applicant-accused if enlarged on bail would temper with the prosecution evidence or possibility of his winning over the prosecution witnesses can be ruled out. It is a settled law that mere apprehension that accused would temper with the prosecution evidence or intimidate the witnesses cannot be a ground to refuse the bail unless the prosecution shows that accused actually tried such tempering/intimidation. My view to release the applicant-accused on bail further gets fortified from the statement of prosecutrix so also from the prosecution story that on 28.10.2018, when she went to School and alighted from the school van, the accused who was already there along with his vehicle forcibly pulled her inside his car and molested and confined her in his car for two hours, and when the parents of the prosecutrix reached near the School, accused on seeing them pushed her outside of his Car and fled away, which prima facie seems false as 28th of October, 2018 falls Sunday, and being Sunday there were no extra classes by the School Authorities to attend the tuition classes and neither any school buses were operated on that day. The apprehension of the respondent that applicant-accused may abscond from justice can be taken care of by imposing certain terms and conditions. The apprehension of the respondent that applicant-accused may abscond from justice can be taken care of by imposing certain terms and conditions. 13. Accordingly, the application, for the reasons stated above, is allowed on the following conditions: (i). Applicant is ordered to be enlarged on bail on his furnishing bail bonds in the sum of Rs. 50,000/- (rupees fifty thousand only) with two sureties of the like sum to the satisfaction of the Trial Court. (ii). Applicant shall appear before the Police Station, Domana, Jammu, on every Tuesday and Saturday during day time. (iii). Applicant shall appear before the court as and when required. (iv). Applicant shall not threaten, induce or allure the witnesses and shall not temper with the prosecution evidence. Applicant shall also not try to contact the prosecutrix. (v). Applicant shall not leave the territorial jurisdiction of trial court without its prior permission. 14. It is made clear that the trial Court shall not be influenced by any of the observations made hereinabove while proceeding further with the trial of the case.