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2021 DIGILAW 578 (JK)

Mohd. Mushtaq v. Union Territory of J&K

2021-11-03

RAJNESH OSWAL

body2021
JUDGMENT : 1. The present application has been filed by the applicants/petitioners for grant of bail in FIR bearing No.75/2021 dated 21.02.2021 for commission of offences under sections 376, 452, 323 and 506 IPC registered with Police Station, Udhampur at the instance of respondent No. 2, who happens to be the wife and sister in law of the petitioner Nos. 1 and 2 respectively. 2. The petitioners had earlier filed the bail application for grant of bail before the learned Additional Sessions Judge, Udhampur (hereinafter to be referred as the trial court) but the same was dismissed by the learned trial court vide order dated 20.07.2021. 3. The petitioners are seeking bail on the ground that the FIR under reference has been lodged by the respondent No. 2 as a counter blast to the FIR bearing No. 69/2021 dated 18.02.2021 for commission of offence under section 376 IPC lodged by the sister of the petitioners against the brother of the respondent No. 2 and other persons. It is further stated that the Uncle of the respondent No. 2 who is serving in the Police Department has managed the harassment of the petitioners by using his official clout. The respondent No. 2 had earlier approached the Women Cell, Udhampur and the Women Cell Udhampur started calling the petitioners as well as other family members on consecutive days in the Police Station and as such, except petitioner No. 1, all other family members filed the writ petition before this Court, titled Noor Bibi and others vs. Union Territory of J&K whereby this Court vide order dated 17.11.2020 directed the respondents therein not to harass the petitioners. It is further stated that as soon as the said order was passed by this Court, the FIR bearing No. 26/2020 dated26.11.2020 was registered under sections 498-A and 323 IPC against the petitioners and other family members which forced them to challenge the same before this Court and this Court vide order dated 04.12.2020 directed the respondents therein not to harass the petitioners and further not to file the challan without prior permission of this Court. 4. The petitioner No. 1 filed a complaint dated 21.11.2020 under sections 107 and 109 Cr.P.C. before the Tehsildar (Executive Magistrate), Udhampur and the respondent No. 2 and her family members were asked to show cause as to why they not be directed to furnish bonds. 5. 4. The petitioner No. 1 filed a complaint dated 21.11.2020 under sections 107 and 109 Cr.P.C. before the Tehsildar (Executive Magistrate), Udhampur and the respondent No. 2 and her family members were asked to show cause as to why they not be directed to furnish bonds. 5. The petitioners' case is that in order to further harass them, the wife of the petitioner No. 1, respondent No. 2 herein, lodged a false and frivolous FIR and arrayed the petitioner No. 2 as accused also in the said FIR whereas the fact remains that the petitioner No. 2 was serving in the Armed Wing of the Police Department and in the night intervening 05.02.2021 and 06.02.2021, the petitioner No. 2 was very much present on guard duty from 10 PM to 2 AM in his Unit at IRP 7th Bn Seri Amb Gharota Jammu and the time that was given by the respondent No. 2 in the impugned FIR is 3.00 AM dated 06.02.2021 and it is practically not possible to reach at Bali Nallah in Udhampur within one hour which is near about 95 Kms from the place of deployment of the petitioner No. 2. 6. The petitioners have placed on record copy of the FIR under reference, copy of the FIR lodged by the sister of the petitioners, the copy of the orders passed by this Court in the writ petition as well as copy of the petition challenging the FIR registered under section 498-A and 323 IPC of Police Station, Women Cell, Udhampur and the copy of the FIR that was challenged by the family members of the petitioner No. 1 and petitioner No. 2. 7. The response stands filed by the respondent No. 1 in which besides narrating factual facts, it is stated that the petitioners are involved in a heinous offences and the investigation stands completed and the challan in the instant case is to be produced in the court of law very shortly. 8. Mr. Irfan Khan learned counsel for the petitioners has submitted that the challan for commission of offence stands filed whereas Mr. Vishal Bharti, learned, Dy. AG appearing for the respondent No. 1 has vehemently submitted that the petitioners are involved in a commission of heinous offence, as such, they are not entitled to bail. 9. 8. Mr. Irfan Khan learned counsel for the petitioners has submitted that the challan for commission of offence stands filed whereas Mr. Vishal Bharti, learned, Dy. AG appearing for the respondent No. 1 has vehemently submitted that the petitioners are involved in a commission of heinous offence, as such, they are not entitled to bail. 9. The facts as they emanate from the record are that the FIR bearing No. 75/2021 (supra) was registered on 21.02.2021 for commission of offence under sections 376, 452, 323 and 506 IPC pursuant to the direction passed by the concerned Magistrate under section 156(3) Cr.P.C. It is stated in the FIR that on 06.02.2021 at about3 AM, the petitioner No. 1 along with petitioner No. 2 and two others persons not known but she can identify came from Jammu in a vehicle bearing registration No. JK14F 9298 (ECO) and entered the matrimonial house at Bali, Tehsil Udhampur where the respondent No. 2 had been residing with her two minor children and all the accused persons therein administered beating to the respondent No. 2 and thereafter, the petitioner No. 1 asked the other persons to remove all the clothes of the respondent No. 2 so that the lesson be taught to her and all the accused persons forcibly committed the rape upon respondent No. 2 and on raising hue and cry, some villagers rescued her. 10. Heard and perused the record. 11. From the record, it is evident that there are multiple litigations going on between the petitioners and the respondent No. 2 and the petitioner No. 1 happens to be the husband of respondent No. 2 and the petitioner No. 2 is the brother in law of respondent No. 2. As per response filed by respondent No. 1, the investigation has been completed, however, it is not disputed that the challan stands filed against the petitioners as stated by counsel for the petitioners. 12. Without commenting upon the merits of the case and taking into consideration that there are multiple litigations going on between the petitioners and the respondent No. 2 and the brother of the respondent No. 2 is an accused in FIR bearing No. 69/2021 (supra) under section 376 dated 18.02.2021 and further that FIR under reference wherein the petitioners were arrested, was registered on after 15 days of the alleged occurrence i.e.21.02.2021, the petitioners deserve to be enlarged on bail. 13. 13. It is also noticed that the learned trial court has rejected the bail application primarily on the ground that there is possibility of giving threat to the witnesses. It is beyond doubt that both the petitioner No. 1 and the respondent No. 2 have indulged in multiple litigations and at this stage, whether the allegations levelled against the petitioners are true or not cannot be ascertained and can be ascertained during the course of trial, however, the apprehension as expressed by the learned trial court can be taken care of by imposing appropriate conditions while granting bail to the petitioners. 14. As such, it is ordered that the petitioners be released on bail on the following conditions: (i) that subject to furnishing of two solvent sureties to the tune of Rs. 50,000/- each to the satisfaction of the trial court and personal bond of the like amount. (ii) that they shall not contact with any of the prosecution witnesses during the trial by any manner either physically or through any other mode. (iii) that they shall appear before the trial court on each and every date of hearing. 15. In the event of violation of any of the conditions mentioned above, the official respondent can lay a motion for cancellation of bail of the applicant/petitioner before this Court. 16. Disposed of.