Research › Search › Judgment

J&K High Court · body

2021 DIGILAW 644 (JK)

Mukesh Gupta v. Union Territory of J&K

2021-12-08

RAJNESH OSWAL

body2021
JUDGMENT : Rajnesh Oswal, J. 1. The present application has been filed by the petitioner for grant of bail in charge sheet, titled, 'State vs. Mukesh Gupta' pending before the court of learned Sessions Judge, Reasi (hereinafter to be referred as the trial court) for commission of offences under Sections 376 and 506 RPC, arising out of FIR bearing No. 13/2019registered with the Police Station, Katra. 2. The petitioner claims to be a Government employee serving as a Senior Accountant with the Central Government Employees Welfare Housing Organization, Ministry of Urban Affairs at New Delhi and is seeking bail on the ground that he met the prosecutrix for the first time on 29.11.2011 at his office where she was introduced through a common friend. Thereafter, they continued to meet each other. Subsequently, the prosecutrix offered to involve the petitioner in her business activities and as such, the petitioner and the prosecutrix were doing business together wherein the petitioner made huge investment after withdrawing it from the provident fund, bank account and availing few bank loans. The petitioner along with the prosecutrix and her mother had also gone for several outstation vacations and religious trips. The petitioner and the prosecutrix had suffered huge business losses in their business venture. The petitioner and prosecutrix had also instituted several suits together and complaints under section 138 Negotiable Instruments Act either in the name of the petitioner or with the prosecutrix collectively, those were being handled by the prosecutrix on behalf of the petitioner being his attorney holder. As huge amount was stuck in the litigation, so, the prosecutrix became impatient and blamed the petitioner for all such losses. The prosecutrix also refused to return the money invested by the petitioner. The prosecutrix also started exerting pressure as well as threats upon the petitioner through her brother in law and other sources. The prosecutrix along with one Karan Jain relative of the prosecutrix also attacked the petitioner, resulting into the lodging of FIR and various litigations are pending against the prosecutrix. The petitioner has given details of the legal actions in Para 4 of the application, the details of which are not required to be mentioned. It is further submitted that FIR No. 13/2019 (supra) was registered on 20.01.2019 for commission of offences under sections 376 and 506 RPC after the zero FIR was received by the Police Station, Katra. 3. The petitioner has given details of the legal actions in Para 4 of the application, the details of which are not required to be mentioned. It is further submitted that FIR No. 13/2019 (supra) was registered on 20.01.2019 for commission of offences under sections 376 and 506 RPC after the zero FIR was received by the Police Station, Katra. 3. During the course of the investigation, the petitioner was arrested on 24.01.2019 and after the conclusion of the investigation, the charge sheet for commission of offences under Sections 376 and 506 RPC was filed against the petitioner before the committal court on 25.02.2019 and the same was committed to the learned trial court on the same date. Learned trial court vide order dated 06.07.2019 framed the charges for commission of offences under sections 376 and 506 RPC against the petitioner. It is further submitted that the petitioner has been roped in the false FIR because of the business dispute with the prosecutrix and further, Police has cited fifteen witnesses and out of which, only statement of the prosecutrix has been recorded during this period of more than two years. It is further submitted that the petitioner had earlier laid a motion before the trial court for grant of bail and the learned trial court vide order dated 31.08.2020 dismissed the said application. 4. Response stands filed by the official respondent in which factual aspects of the case have been narrated. The same response has been adopted by the respondent No. 2 also. 5. Mr. G.S. Thakur, learned counsel for the petitioner vehemently argued that the false FIR has been lodged just because of the business dispute and further, the petitioner has been in custody for the last nearly three years and out of fifteen witnesses, only one witness has been examined. 6. Per contra, Mr. Jamrodh Singh, GA submitted that the petitioner is not entitled to bail in view of provisions contained in Section 497-C Cr.P.C. 7. Mr. Ankur Sharma, Advocate has also toed the line of arguments of Mr. Jamrodh Singh, GA. 8. Heard and perused the record. 9. Briefly stated, the allegations against petitioner are that on 20.01.2019, a letter was received along with Zero FIR of Police Station, Paharganj, Delhi, which revealed that on 29.12.2011, the petitioner met her and took her mobile number and befriended her. Jamrodh Singh, GA. 8. Heard and perused the record. 9. Briefly stated, the allegations against petitioner are that on 20.01.2019, a letter was received along with Zero FIR of Police Station, Paharganj, Delhi, which revealed that on 29.12.2011, the petitioner met her and took her mobile number and befriended her. The daughter of the prosecutrix was studying at Mussoorie and both the petitioner and the prosecutrix went to Mussoorie where the petitioner gave her soft drink mixed with intoxicant, as a result of which, she became unconscious and the petitioner took her offensive photographs. After that, the petitioner treated the prosecutrix with care and subsequently, asked money from her for investment purpose. The prosecutrix believed him and gave him money. The petitioner also offered to marry her but she refused. In the year 2015, when she demanded her money back, the petitioner told her that after visiting Shri Mata Vaishno Devi Katra, he will return her money. The petitioner also showed offensive photos to her which he had taken and forcibly raped her in a Hotel Katra. The petitioner often used to come to her house, blackmail her and made physical relations. On the basis of this, the FIR was registered and after the conclusion of the investigation, the charge sheet was filed. 10. From the record, it is evident that there was a business relationship between the parties. The minutes of the proceedings of the trial court reveals that on 30.12.2019, the prosecutrix appeared before the trial court forgetting her statement recorded but her statement could not concluded and she undertook to appear on the next date. Thereafter, she did not appear for one reason or another. Ultimately, learned trial court on 27.12.2019issued bailable warrants against her for appearance but still, the prosecutrix never appeared and finally, she appeared before the trial court for conclusion of her statement during the pendency of this petition on 20.08.2021. 11. I have also gone through the statement of the prosecutrix recorded during the course of trial. Though, while considering the bail application, evidence cannot be appreciated but the court can certainly look into the evidence recorded during the course of trial. From the perusal of the statement, it is evident that there were business dealings between the petitioner and the prosecutrix as the prosecutrix was the power of attorney holder of the petitioner. 12. Though, while considering the bail application, evidence cannot be appreciated but the court can certainly look into the evidence recorded during the course of trial. From the perusal of the statement, it is evident that there were business dealings between the petitioner and the prosecutrix as the prosecutrix was the power of attorney holder of the petitioner. 12. The main contention of the respondents is that in view of the in section 497-C Cr.P.C, where the allegations against the accused are for commission of offence under Section 376 RPC, the bail cannot be granted. 13. As per Section 497-C Cr.P.C., the accused is not to be released on bail, if on perusal of the case diary or the report made under section 173 of the Code, the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. This section does not debar the court from looking into the evidence of the prosecutrix recorded during the course of trial. 14. In bail application, titled "Manoj Kumar versus Union Territory of J&K reported in 2021(3) JKJ 393 [HC], this Court has held as under:- "The Ld. trial Court has rejected the bail application in view of the bar contained in section 497-C of the J&K Cr.P.C. Section 497-C of the J&K Cr.P.C. prohibits the grant of bail if after the perusal of the case diary or report under section 173 Cr.P.C. the court is of the opinion that there are reasonable grounds that the accusations against the accused are true. The section under reference does not bar the court from looking into the evidence brought on record after the commencement of trial otherwise it would be a travesty of justice if the accused has to remain in jail till the conclusion of trial even when the prosecution has failed to bring on record any incriminating evidence against the accused and the accused has to wait for his release till the final verdict of the court. Needless to say that the court while deciding bail application is not required to appreciate the evidence." 9. Needless to say that the court while deciding bail application is not required to appreciate the evidence." 9. While considering bail application, the court has not to return any finding with regard to the innocence or guilt of the accused but at the same time in view of the statement of the prosecutrix, at this stage it cannot be said as to whether she has completely exonerated the petitioner or not and further that the allegations against the petitioner are true or not. Be that as it may, the presumption of innocence is in favour of the accused till he is held guilty. 15. From the testimony of the prosecutrix, it cannot be said with certainty that the allegations against the petitioner are true or not particularly when the petitioner has raised a defence that cannot be termed as imaginary. As such, without commenting upon the merits of the case, in view of the fact that the petitioner has been in custody for more than two and a half years and during this period, only one witness i.e. the prosecutrix has been examined and there are fourteen more witnesses yet to be examined and there is no possibility of the conclusion of the trial in near future, I am of the considered opinion that the petitioner deserves to be enlarged on bail, subject to the following conditions:- (i) subject to furnishing of two local solvent sureties to the tune of Rs. 50,000/- each to the satisfaction of trial court and personal bond of the like amount. (ii) he shall not make any attempt to contact with any of the prosecution witnesses during trial either physically or through any other mode. (iii) he shall appear before the trial court regularly. (iv) he shall furnish an undertaking that he shall intimate his whereabouts to the concerned SHO on the first day of every month. 16. In the event of violation of any of the conditions mentioned above, the respondents can lay a motion before this Court for cancellation of bail of the petitioner. 17. Disposed of.