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2021 DIGILAW 663 (JK)

Romesh Kumar v. Union Territory of J&K

2021-12-17

TASHI RABSTAN

body2021
JUDGMENT : TASHI RABSTAN, J. 1. The applicant has moved this application for seeking grant of bail in case FIR No. 75/2021 registered with Police Station, Domana for allegedly committing the offence punishable under Section 376/343/323 IPC, who is in custody since 03.07.2021. It is contended that the applicant has earlier also filed an application for grant of bail before the learned Fast Track court Jammu, which came to be dismissed on 14.09.2021. 2. The prosecution case in brief is that on 06.02.2021 the prosecutrix was locked in the room for two days and tried to rape her by force, however, she had a narrow escape and on 09.02.2021 the prosecutrix approached the SHO, Police Station, Domana for registering complaint against the accused under Section 376/511 IPC but the SHO did not registered the complaint rather he asked the complainant to compromise. 3. The Police Station, Domana, accordingly, registered FIR No. 75/2021 under Section 376/511 IPC against the applicant as well as husband of the prosecutrix, namely, Pawan Kumar and during the course of investigation the statement of the witnesses under Section 161 Cr.P.C. was recorded and medical examination of the victim from the District Hospital, Sarwal, Jammu was conducted and the medical report was also obtained and subsequently statement under Section 164 Cr.P.C. has also been recorded before the learned Sub-Registrar, Munsiff, Jammu. As per the site plan, statement of the victim under Section 164 Cr.P.C. and medical report, the offences under Section 354, 342, 323, 506 IPC have been added, however, the offences under Section 376, 511 IPC have been deleted. It is further averred that during the investigation, the offences under Section 342/323/506 IPC have been proved against the accused, namely, Pawan Kumar, S/o Romesh Kumar R/o Maniyal Brahmana, Tehsil Marh, District Jammu and offences under Section 354/342/323/506 IPC have been proved against the accused/applicant herein, namely, Romesh Kumar, S/o Bansi Lal R/o Maniyal Brahmana, Jammu and accordingly, applicant, namely, Romesh Kumar has been arrested and lodged in police lockup under police remand up to 31.03.2021 and the accused, namely, Pawan Kumar has been bailed out, however, subsequently, the petitioner has also been granted bail on 23.03.2021 which has been made absolute on 31.03.2021. Thereafter, the husband of the complainant has moved a petition under Section 13(1) of the Hindu Marriage Act before the competent court in which the complainant has received a notice on 03.03.2021. 4. Thereafter, the husband of the complainant has moved a petition under Section 13(1) of the Hindu Marriage Act before the competent court in which the complainant has received a notice on 03.03.2021. 4. It is further averred that on the direction of the senior officers further investigation of the case has been carried out and supplementary statement of the complainant was recorded on 29.06.2021 before the competent court of law and on the basis of the statement of the complainant, offences under Sections 376/343/323 IPC have been added and offences under Sections 354/342 IPC have been omitted and accordingly, the accused/applicant herein was again arrested on 03.07.2021 and sent to judicial custody. 5. Heard learned counsel for the parties. 6. Mr. Aseem Sawhney, learned AAG has filed objections and has resisted the bail application. 7. Ms. Rozina Afzal, learned counsel for the applicant submits that the applicant has been falsely implicated in the commission of offences. She further submits that on the basis of the complaint filed by the complainant the matter was investigated and the statement of the prosecutrix was also recorded under Section 164 Cr.P.C. on 20.03.2021 before the learned Sub-Registrar, Jammu, who in her statement stated that on 06.02.2021 at 7:30 PM the applicant after being drunk attempted to force himself on her and threatened to eliminate her if she made a complaint, however, the complainant in her statement has not mentioned about any sexual assault or sexual offence. The complainant further stated in her statement that her husband beat her along with the applicant and locked her inside the room and on 09.02.2021 she reported to Police and on 13.02.2021 the concerned Police asked her to make a compromise and on 19.03.2021 a compromise deed was executed between the son of the applicant herein and the complainant, therefore, the matter was amicably settled. However, keeping in view the conduct of the complainant the husband of the complainant has filed a petition under Section 13(1) of the Hindu Marriage Act of which a notice was received by the complainant. However, keeping in view the conduct of the complainant the husband of the complainant has filed a petition under Section 13(1) of the Hindu Marriage Act of which a notice was received by the complainant. Thereafter, the complainant with a malafide intention just to take revenge approached the higher authorities for again recording her statement under Section 164 Cr.P.C. for the second time and accordingly, statement of the complainant was recorded before the learned 3rd Additional Munsiff, Judicial Magistrate 1st Class, Jammu, wherein the complainant has alleged rape by the applicant herein and accordingly Section 376 IPC was included. Learned counsel for the petitioner vehemently argued that statement under Section 164 Cr.P.C. cannot be recorded on the 2nd time. In support of her contention she relied upon the judgment dated 13.03.2012 passed by the High Court of Rajasthan titled "Tanu Kanwar vs. State of Rajasthan" and the judgment dated 06.05.2015 passed by the High Court of Allahabad titled "Nafeesa vs. State of U.P." 8. 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. 9. 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). 9. 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. 10. 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. 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. 11. In the present case the complainant in her statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. has nowhere mentioned that she has been raped by the accused and about any sexual assault or sexual offence. In fact, she agreed to make a compromise and accordingly a compromise deed was also executed. Thereafter, on the basis of the statement and also medical report offences under Sections 376/511 IPC have been deleted. The complainant seems to have received a notice on 03.03.2021 of the petition under Section 13(1) of the Hindu Marriage Act filed by the son of the applicant and therefore, she again approached the higher authorities to record her statement under Section 164 Cr.P.C. again and accordingly, her statement under Section 164 Cr.P.C. was again recorded wherein the complainant alleged the commission of offence of rape only against the applicant who is stated to be the father-in-law of the complainant, whereas no allegation has been made against Pawan Kumar who is stated to be the husband of the complainant. 12. 12. Therefore, prima facie a case is made out for grant of bail in favour of the petitioner. Accordingly, this application is allowed and the petitioner is admitted to bail subject to the following conditions: i. That he shall furnish bail bond in the amount of Rs.50,000/- with one surety of the like amount to the satisfaction of the Registrar Judicial and personal bond in like amount to the satisfaction of the Superintendent District Jail, Jammu; ii. That he shall appear before the Trial court on each and every date of hearing; iii. That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the Trial court; iv. That he shall not tamper with the prosecution witnesses. 13. Copy of this order be sent to the learned Trial court. 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. 15. It is also made clear that as and when the charges are framed against the accused he shall approach the competent court for regular bail. 16. Bail application along with connected CrlM stands disposed of.