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2020 DIGILAW 617 (JK)

Mohd Akram v. UT of J&K th. SHO P/S Mandi, Poonch

2020-11-24

SANJAY DHAR

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Judgment Sanjay Dhar, J.—Through the medium of the instant petition, the petitioner is seeking regular bail in case FIR No. 47/2020 for offences under Sections 366/109 IPC registered with the Police Station, Mandi, Poonch. 2. It is averred in the petition that the petitioners have been taken into custody by the police of Police Station, Mandi on 27.05.2020 without any basis as they have not committed any offence. It is contended that the allegations made against the petitioners in the subject FIR are concocted and that the said FIR is also without any basis. It is further averred that the subject FIR has been lodged at the instance of one Abdul Majid, the paternal uncle of the prosecutrix, who owed to pay Rs.70,000/- to brother of petitioner No.1 and when brother of petitioner No.1 demanded back his money from said Abdul Majid, he refused to do so and filed a concocted FIR which has resulted in filing of a false challan against the petitioner. It has also been contended that the investigation of the case is complete and the charge sheet stands filed before the Court of Principal Sessions Judge, Poonch (hereinafter referred to as the ‘trial Court’). It is also averred that the police has expressed its inability to produce the petitioners before the trial Court on account of Covid-19 pandemic, as a result of which, even the charges are not being framed by the trial Court and the petitioners continue to be under detention without commencement of the trial of the case. Lastly, it has been contended that order dated 09.07.2020 passed by the trial Court whereby the bail application of the petitioners has been rejected is not in accordance with law. 3. The respondent has resisted the bail application by filing a reply thereto. In its reply, the respondent has contended that the petitioners have committed a heinous offence of kidnapping a girl, as such, they do not deserve the concession of bail. It is further averred that after investigation of the case, the offences stand established against the petitioners and a charge sheet has been laid before the trial Court. 4. I have heard learned counsel for the parties and perused the record of the case. 5. It is further averred that after investigation of the case, the offences stand established against the petitioners and a charge sheet has been laid before the trial Court. 4. I have heard learned counsel for the parties and perused the record of the case. 5. As per the charge sheet, a copy whereof has been placed on record by the petitioners, on 26.05.2020, the complainant Mohd Shafi lodged a report with the police alleging therein that her unmarried daughter, who is aged about 18/19 years was being harassed by petitioner No.1 herein for the last one year in order to get sexual favours from her. It was contended in the report that on 24.05.2020 when daughter of the complainant had gone to the house of her maternal uncle to attend the festival of Eid, during the night hours, petitioner Mohd Akram contacted her on Mobile phone so as to entice her to accompany him, but he did not succeed. At about 11.00 pm when the prosecutrix came out of her room, petitioner Mohd Akram kidnapped her and took her to his house. The family of maternal uncle of the prosecutrix raised an alarm and a search for the prosecutrix was launched by her relatives. It is further stated in the challan that at about 1.00 am in the night, the prosecutrix was recovered from the house of petitioner No.1 where the other accused were also present. After investigation of the case, offences under Sections 366/109 IPC were found established against the petitioners and a charge sheet was laid before the trial Court. However, no evidence regarding commission of any sexual assault upon the prosecutrix was found. 6. Learned counsel for the petitioner has contended that the investigation of the case is complete, inasmuch as chargesheet has already been filed and the petitioners are in incarceration for the last about six months. According to him, no fruitful purpose will be served if the petitioners are allowed to remain in the custody as no proceedings are taking place in the case before the trial Court on account of Covid-19 infection. Learned counsel has further contended that the petitioners are not alleged to have committed an offence which is punishable with death sentence or imprisonment for life, as such, rigor of Sub-section (1) of Section 437 of Cr.P.C is not applicable to the case. 7. Learned counsel has further contended that the petitioners are not alleged to have committed an offence which is punishable with death sentence or imprisonment for life, as such, rigor of Sub-section (1) of Section 437 of Cr.P.C is not applicable to the case. 7. Learned counsel for the respondent, on the other hand, has contended that the petitioners have committed heinous offences and unless and until, at least, the statement of the prosecutrix is recorded, the petitioner should not be enlarged on bail. He has further submitted that after rejection of bail application of the petitioners by the trial Court, there has been no change of circumstances in the instant case, therefore, the instant bail application is not maintainable. 8. The question that arises for consideration is whether or not successive bail application will lie before this Court. The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application. In this behalf, I am supported by the ratio laid down by the Supreme Court in the case titled Gurcharan Singh & Ors vs. State (Delhi Administration), AIR 1978 SC 179 which has been followed by the Bombay High Court in the case of Devi Das Raghu Nath Naik v. State, (1987 Crimes Volume 3 page 363). Thus, the rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 Cr. P. C on the same facts and for the same offence. 9. With the aforesaid position of law, now let me proceed to the merits of the instant bail application. The offence alleged to have been committed by the petitioners is punishable with imprisonment of either description for a term which may extend to ten years. It is not punishable with death or imprisonment for life. Therefore, the rigor of Sub section (1) of Section 437 of Cr.P.C is not applicable to the instant case. The present bail petition is, thus, required to be considered on the touchstone of the principles governing the grant of bail in the cases other than those which are punishable with death sentence or imprisonment for life. In other words, the grant or refusal of bail in a case of instant type is within the discretion of the Court. The present bail petition is, thus, required to be considered on the touchstone of the principles governing the grant of bail in the cases other than those which are punishable with death sentence or imprisonment for life. In other words, the grant or refusal of bail in a case of instant type is within the discretion of the Court. However, the said discretion has to be exercised in accordance with the settled principles of law and precedents. Some of the factors and parameters, which are required to be taken into consideration while exercising the discretion for grant or refusal of bail, are given as under: “(i) Nature and gravity of accusation against the accused; (ii) The antecedents of the accused; (iii) The possibility of the accused fleeing from justice (iv) The reasonable apprehension of tampering with the evidence or apprehension of threat to the complainant; (v) The public interest; and (vi) The stage of investigation”. The above are the only illustrative and not exhaustive factors which are required to be taken into account while exercising the discretion for grant or refusal of bail. It all depends upon the facts and circumstances of each case. 10. In the instant case, though the petitioners are alleged to have committed a grave offence, yet the fact remains that the investigation of the case is complete and the charge sheet has been filed before the trial Court on 06.06.2020. Nothing has been brought on record to even remotely suggest that in case petitioners are enlarged on bail, they are either going to influence the prosecution witnesses or flee from the course of justice. 11. It has been specifically averred by the petitioners that after presentation of the charge sheet, it has not been possible for the prosecution to produce them before the trial Court on account of Covid-19 infection, as a result whereof, even the charges have not been framed in the instant case so far. There is no denial to this assertion by the respondent. So we have a situation where admittedly a grave offence is alleged to have been committed by the petitioners, but their right to speedy trial is getting hampered on account of a situation which is beyond the control of the trial Court as well as the prosecution. There is no denial to this assertion by the respondent. So we have a situation where admittedly a grave offence is alleged to have been committed by the petitioners, but their right to speedy trial is getting hampered on account of a situation which is beyond the control of the trial Court as well as the prosecution. The learned trial Court while rejecting the bail application of the petitioners has taken into account the aspect of the seriousness of the allegations against the petitioners, but other factor i.e. remote possibility of further progress of proceedings against the petitioners before the trial Court, seems to have been lost sight of by the trial Court while passing the order of rejection of bail application of the petitioners. 12. It is true that in an ideal situation, it would have been more appropriate to wait for recording of statement of the prosecutrix by the trial Court before enlarging the accused on bail, but in a situation in which we have been caught on account of circumstances beyond the control of everybody, waiting for improvement of prevailing situation on account of Covid-19 may amount to keeping the petitioners in custody for at least for near future. This will be a case of inflicting punishment upon them without trial. So keeping in view the peculiar facts and circumstances of the case, a balance is required to be struck between the right of personal liberty of the petitioners and their right to speedy justice on the one hand and the factors like the seriousness of offence alleged to have been committed by them. 13. There is yet another factor which needs to be taken note of while considering this application. As per the prosecution case, the prosecutrix was in custody of the petitioners for several hours but she has not been sexually assaulted by any of them when there was every occasion and opportunity available for them to do so. It was a situation where the prosecutrix was pitted against five petitioners who are alleged to have been involved in her kidnapping, but still then, no sexual assault has been committed against her. It was a situation where the prosecutrix was pitted against five petitioners who are alleged to have been involved in her kidnapping, but still then, no sexual assault has been committed against her. Though, it cannot be denied that alleged act of kidnapping of prosecutrix by the petitioners is in itself a serious offence, yet the fact that she was not subjected to sexual assault by the petitioners is a circumstance which goes in favour of the petitioners, at least for the purpose of considering their bail application. 14. Having regard to the facts and circumstances of the case as enumerated hereinabove, it appears that interest of justice will be best served, if the petitioners are enlarged on bail. 15. For the foregoing reasons, the petition is allowed and the petitioners are admitted to bail subject to the following conditions: (i) That they shall furnish bail bond with one surety in the amount of Rs.50,000/- to the satisfaction of the learned trial court; (ii) That they shall not leave the limits of UT of Jammu and Kashmir without the prior permission of the trial Court; (iii) That they shall not tamper with the prosecution witnesses; and (iv) That they shall appear before the trial Court on each and every date of hearing. Copy of this order be provided to the learned counsel for the petitioners through available mode and copy be also sent to the learned trial Court.