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2021 DIGILAW 377 (JK)

Chain Singh v. U. T. of J&K

2021-07-28

RAJNESH OSWAL

body2021
ORDER : Rajnesh Oswal, J.-The present bail application has been filed by the petitioner for grant of bail in challan titled U.T of J&K vs. Chain Singh, arising out of FIR bearing No. 278/2019 initially registered under 377 IPC, after the bail application filed by the petitioner was rejected by the Court of learned Principal Sessions Judge, Kishtwar (hereinafter referred to as the trial court) vide order dated 27.01.2021. 2. In the bail application, petitioner has stated that there has been inordinate and unexplained delay of four months in lodging of the FIR, further that the investigation has been conducted in an unfair manner because no preliminary enquiry was carried out by the Investigating Agency and also that not even a single member of the community, to whom the occurrence is alleged to have been narrated in the month of August, 2019 has been examined. 3. It is further stated that from the Medical record it is evident that there is no evidence that the petitioner is at all guilty of committing offence of sodomy. It is also stated that the trial stands stalled because of the eruption of corona virus pandemic and there is no likelihood of trial being concluded in an expeditious manner. 4. Response stands filed by the respondent, in which it is stated that on 20.12.2019, the written application was produced by one Sushil Kumar, S/o Hans Raj R/o Moori, Bunjwaj, Kishtwar before P/S Kishtwar stating therein that on 31.08.2019, his son had gone to visit a fair at Moori. When he was coming back and reached one kilometer away from Moori, the petitioner grabbed the son of the complainant and forcefully took him in the fields committed unnatural offence/sodomy against him. For about 20 minutes, the son of the complainant kept on weeping and afterwards narrated the whole episode to the complainant. The complainant further stated that some members of the Birdari stopped him by saying that they will look into the matter and in the process three months have passed but nothing was done. Pursuant to this complaint, FIR bearing No. 278/2019 under Section 377/IPC was registered at Police Station Kishtwar. During investigation the statement of the victim was recorded under Section 164 CrPC and the accused was arrested. Later on, offence under Section 4 of POCSO Act was found established against the petitioner. Pursuant to this complaint, FIR bearing No. 278/2019 under Section 377/IPC was registered at Police Station Kishtwar. During investigation the statement of the victim was recorded under Section 164 CrPC and the accused was arrested. Later on, offence under Section 4 of POCSO Act was found established against the petitioner. It is further stated in the objections that the challan stands filed before the Court of Principal Sessions Judge, Kishtwar and the charges stand framed by the said Court on 04.02.2021. It is further stated that the petitioner is guilty of heinous offence, as such, he is not entitled to any bail. 5. Learned counsel for the petitioner has vehemently argued that there was delay of three months in lodging FIR and even the statement of the victim as well as the complainant was recorded after inordinate delay and further that the medical evidence does not support the commission of any offence by the petitioner. In support of his submissions reliance is placed on judgment of Supreme Court in cases AIR 2021 SC 1389 and AIR 2012 SC 830 and judgment High court of J&K, in JKJ2021(1) HC 110. 6. Per contra, Mr. Suneel Malhotra, learned GA appearing the respondent submits that the petitioner is guilty of heinous offence and further after the framing of charges, the statements of the victim as well as complainant are yet to be recorded. Therefore, he is not entitled to bail. 7. Heard and perused the record. 8. Perusal of the challan reveals that complainant has lodged the FIR on 20.12.2019 alleging therein that on 21.08.2019 his son aged nine years was taken by the petitioner to the fields where the petitioner has committed unnatural offence with him. Further it is evident that the charges stand framed against the petitioner vide order dated 4.2.2021. The statements of the victim as well as the complainant are yet to be recorded. Offence under Section 377 IPC is punishable with (imprisonment for life) or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Similarly, Section 4 of POCSO Act is punishable with imprisonment for a term which shall not be less than ten years but may extend to imprisonment for life, and shall also be liable to fine. 9. Similarly, Section 4 of POCSO Act is punishable with imprisonment for a term which shall not be less than ten years but may extend to imprisonment for life, and shall also be liable to fine. 9. The Hon’ble Apex Court in catena of judgments has laid down the following factors to be considered for grant of bail. (i) Whether there was a prima facie or reasonable ground to believe that the accused had committed the offence, (ii) Nature and gravity of accusations, (iii) Severity of the punishment in the event of a conviction, (iv) Danger of the accused absconding or fleeing, if granted bail, (v) Character, behavior, means, position and standing of the accused, (vi) Likelihood of repetition of the offence, (vii) The position and status of accused vis-à-vis victim, (viii) Reasonable apprehension of the witnesses being influenced and (ix) Danger of justice being thwarted by grant of bail. 10. So far as the allegations against the petitioner are concerned, there is no doubt that the nature and gravity of accusations against the petitioner are very serious and also the severe punishment has been provided for the commission of offences for which he has been charged. The statement of the victim and complainant are yet to be recorded. So at this stage, there is every likelihood that the witnesses may be influenced by the petitioner in the event of grant of bail. The contentions raised by learned counsel that there is delay of four months and further statement of the victim and complainant has been recorded with undue delay, cannot be considered at this stage, as these issues pertain to the merits of the case and are required to be appreciated at the time of final adjudication of the challan. Similarly, the contention that medical evidence does not support the guilt of sodomy also cannot be considered at this stage. The judgments referred above are not applicable to the facts and circumstance of the present case. 11. In view of the above, particularly, that the petitioner is involved in the commission of heinous offence under Section 377/IPC and Section 4 of POCSO Act, this Court of the considered opinion that the petitioner does not deserve to be enlarged on bail at this stage. 11. In view of the above, particularly, that the petitioner is involved in the commission of heinous offence under Section 377/IPC and Section 4 of POCSO Act, this Court of the considered opinion that the petitioner does not deserve to be enlarged on bail at this stage. The petitioner shall be at liberty to file the bail application afresh before the trial court after the statement of the petitioner and the victim is recorded by the trial court. The present petition is dismissed.