JUDGMENT : MOHAN LAL, J. 1. Applicant/accused indicted in FIR No. 156/2021 dated 17.08.2021 for commission of offences u/s 376/342/506/109 IPC and 67 (a) of IT Act of Police Station Rajbagh District Kathua and lying in custody since 17.08.2021 has claimed bail on the grounds, that he is a citizen of India and a permanent resident of UT of J&K and is entitled to all fundamental, statutory and legal rights enshrined under the Constitution of India including one of individual liberty under Article 21 of the Constitution of India; applicant is not involved in commission of any offence and is aggrieved of order dated 24.09.2021 passed by the Ld. Additional Sessions Judge Kathua whereby his bail application has been rejected; applicant is a young youth of 21 years of age and has old and infirm parents who are suffering from numerous ailments and in absence of his elder brother who is an army personnel serving in Indian Army applicant is the only caretaker of his old parents; it is admitted case of the prosecutrix that it is one Abhi Kumar who called the complainant to his house and thereafter the main accused namely Naman Kumar committed rape upon the complainant/prosecutrix; as per report of the prosecution, and the statement of complainant/prosecutrix it is Abhi Kumar who was recording video from outside the room which prima-facie shows that applicant has not been involved in the alleged offence; the main accused namely Naman Kumar who was juvenile at the time of occurrence has been released on bail by the Juvenile Justice Board Kathua on 28.09.2021; despite knowing the fact that prima-facie no offence is made out against applicant, even the trial court vide order dated 24.09.2021 has rejected his bail application; keeping of the applicant in further custody will amount to punitive detention which goes contrary to the spirit of fair trial as envisaged in the Constitution of India; applicant would neither abscond nor delay the proceedings of the court and will not tamper the prosecution witnesses nor hamper the trial; applicant undertakes to abide by all the terms and conditions set by this Court if released on bail; there is no material on record to believe that applicant/accused is guilty of the offence leveled against him; it is settled law that bail should not be refused as punishment purpose and there is no bar in granting bail when nothing is to be recovered or investigated from applicant, moreso, refusal of bail would amount further incarceration of the applicant in jail. 2. Respondent/non-applicant by filing objections/status report has opposed the bail on the grounds, that the accused is involved in commission of offences u/s 376/342/506/109 IPC and 67(a) of the IT Act on account of the fact that one Abhi Kumar was sitting outside the room while Naman Kumar raped the prosecutrix/victim inside the room. 2. Respondent/non-applicant by filing objections/status report has opposed the bail on the grounds, that the accused is involved in commission of offences u/s 376/342/506/109 IPC and 67(a) of the IT Act on account of the fact that one Abhi Kumar was sitting outside the room while Naman Kumar raped the prosecutrix/victim inside the room. It is contended that as per statement of the witnesses, FSL report, medical report and other circumstance which came to fore during course of investigation, offences u/s 376/342/506/109 IPC and 67(a) of the IT Act have been fully established against applicant/accused, and the accused deserves not to be enlarged on bail. 3. Sh. Jasbir Singh Jasrotia Ld. Counsel for applicant/accused while making out a strong case for enlargement of applicant/accused on bail, has vehemently argued, that the gravity of offence alone cannot be decisive ground to deny bail, protection of personal liberty is required against securing attendance of accused at trial, accused is presumed to be innocent till he is found guilty and convicted, even in the case where prima-facie case exists against the accused the approach of court should be that bail should not be denied as a measure of punishment to teach lesson to the accused for an offence which is yet to be proved. It is argued, that the principal accused who was juvenile at the time of occurrence has already been granted bail, accused has not participated in a crime, bail is rule and jail an exception, personal liberty of an individual is of paramount importance which cannot be curtailed, and the accused cannot be kept in detention for an indefinite period, as the punishment only begins after the conviction. 4. Sh. Dewakar Sharma Ld. Dy. AG for respondent, per contra, has opposed the bail by projecting arguments, that applicant/accused is involved in commission of serious and grave offences u/s 376/342/506/109 IPC and 67(a) of IT Act which are against the society, and the grant of bail would encourage applicant/accused to indulge in similar offences again and again which would flash wrong signal to the society. 5. Heard Ld. Counsel for applicant/accused and Ld. Dy. AG for respondent. I have perused the contents of bail application and objections filed by the respondent. I have also bestowed my thoughtful consideration to the material aspects involved in the case and have gone through the relevant law on the subject matter. 5. Heard Ld. Counsel for applicant/accused and Ld. Dy. AG for respondent. I have perused the contents of bail application and objections filed by the respondent. I have also bestowed my thoughtful consideration to the material aspects involved in the case and have gone through the relevant law on the subject matter. Hon’ble J&K High Court in a case law reported in Jagdish Kumar and Others vs. State and Others, 2010 (3) JKJ 129 , the judgment/order rendered by Hon’ble Mr. Justice Sunil Hali (His Lordship the then was Hon’ble Judge of J&K High Court) while granting bail to accused indicted for commission of offences u/s 306/498-A RPC and while discussing the principles of law in regard to ‘prima-facie case’ and ‘approach of court in matter of bail’ and ‘question of influencing prosecution witnesses’ in Paras 17, 18 and 19 of the judgment held as under: “17. While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other circumstances. Even where a prima-facie case is established, the approach of the court in the matter of bail, is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence. 18. The circumstances which have been brought into focus by the respondents as also by the Ld. sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the Ld. Principal Sessions Judge to substantiate this plea. It is mere bald assertion, which cannot be accepted unless there is some material to that extent. 19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent. It is mere bald assertion, which cannot be accepted unless there is some material to that extent. 19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent. Ratio of the judgment (Supra) makes the legal proposition abundantly clear, that even if prima facie case is established against accused, the approach of the court in granting bail should be that the accused should not be detained by way of punishment, and regarding influencing of witnesses, the material witnesses cannot be expected to be win over by the accused. In another case law reported in Naresh Singh vs. State of J&K, 2019 Supreme (J&K) 220. His Lordships Hon’ble Mr. Justice Tashi Rabstan while granting bail to the accused indicted for commission of offences u/s 12 POCSO Act r/w 342 RPC and while discussing the principles of ‘personal liberty’ enshrined in Article 21 of the Constitution of India vis-a-vis the general rule that “bail is rule” and “jail is an exception” in Paras 7, 8 and 12 of the judgment held as under: 7. 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. 8. A fundamental postulate of Criminal Jurisprudence is the presumption of innocence, which means a person is believed to be innocent until found guilty. 8. 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 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. 12. In the present case, the fact that out of nine prosecution witnesses, seven material witnesses stands already examined before the court including prosecutrix, so the mere apprehension of the respondent that the applicant-accused if enlarged on bail would temper with the prosecution evidence or possibility of his winning over the prosecution witnesses can be ruled out. It is a settled law that mere apprehension that accused would temper with the prosecution evidence or intimidate the witnesses cannot be a ground to refuse the bail unless the prosecution shows that accused actually tried such tempering/intimidation. My view to release the applicant-accused on bail further gets fortified from the statement of prosecutrix so also from the prosecution story that on 28.10.2018, when she went to School and alighted from the school van, the accused who was already there along with his vehicle forcibly pulled her inside his car and molested and confined her in his car for two hours, and when the parents of the prosecutrix reached near the School, accused on seeing them pushed her outside of his Car and fled away, which prima facie seems false as 28th of October, 2018 falls Sunday, and being Sunday there were no extra classes by the School Authorities to attend the tuition classes and neither any school buses were operated on that day. The apprehension of the respondent that applicant-accused may abscond from justice can be taken care of by imposing certain terms and conditions. Ratio of the judgment (Supra) also makes the legal proposition manifest, that fundamental postulate of criminal jurisprudence is the presumption of innocence lies in favour of accused who is presumed to be innocent till guilt is proved, grant of bail is a general rule and its refusal is an exception and deprivation of personal liberty must be considered as punishment. Ratio of the judgment (Supra) also makes the legal proposition manifest, that fundamental postulate of criminal jurisprudence is the presumption of innocence lies in favour of accused who is presumed to be innocent till guilt is proved, grant of bail is a general rule and its refusal is an exception and deprivation of personal liberty must be considered as punishment. In Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 Hon’ble Supreme Court of India while granting bails to accused indicted in 2G Spectrum Scam Case for commission of offences u/s 420-B, 468,471/109 IPC r/w Sec. 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 and while expounding the principle of law that ‘the object of bail is to secure appearance of accused persons at trial and deprivation of liberty is a punishment’ in Paras 21, 22, 24, 25, 29, 34, 35 and 36 of the judgment/order observed as under: 21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases ‘necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 24. 24. In the instant case, as we have already noticed that the “pointing finger of accusation” against the appellants is the seriousness of the charge. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather “recalibration of the scales of justice.” 25. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the Ld. District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. 29. In Gudikanti Narasimhulu vs. Public Prosecutor, V.R. Krishna Iyer, J. sitting as Chamber Judge, enunciated the principles of bail thus: SCC pp. 242-246, Paras 3, 5-9 and 13. “3. What, then, is “judicial discretion” in this bail context? In the elegant words of Benjamin Cardozo: The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains.” Even so it is useful to notice the tart terms of Lord Camden that “the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable....” 5.......Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Articles 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr. Bottomley. 6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of he highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell, C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows: “I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial. It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death.” 7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. 8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. 9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. 9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record -particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant is therefore not an exercise in irrelevance. 13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding - if that be so - of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal.” 34. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal.” 34. More recently, in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra this Court observed that: (SCC p. 728, Para 84) “(84) just as liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. Both are equally important.” 35. This Court further observed: (Siddharam Satlingappa case SCC p737, Para 116) “116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.” 36. This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba vs. State of Maharashtra, Vivek Kumar vs. State of U.P. and Mahesh Kumar Bhawsinghka vs. State of Delhi]. Ratio of Sanjay Chandra’s Case (Supra) further makes the legal provisions vis-a-vis bail abundantly clear, that the principle rule to guide release on bail is “to secure the presence of accused during trial, the object of bail is neither punitive nor preventative, deprivation of liberty must be considered a punishment, the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and duly found guilty.” 6. In view of the plethora of judgments (Supra) and ratios deduced therefrom, it can be safely held, that a balance has to be struck between the “right to individual liberty” and “interest of the society.” The law as discussed above is no longer res-integra that while considering an application for grant or refusal of bail in non-bailable offence, concept of ‘personal liberty’ as enshrined in Article-21 of the Constitution of India is of paramount importance and the general rule is that ‘bail is rule’ and ‘jail an exception’. Applicant/accused is lying in detention for the last more than 6 months from the date of his arrest on 17-08-2021 and is not required for the purpose of investigation any more. Applicant/accused is lying in detention for the last more than 6 months from the date of his arrest on 17-08-2021 and is not required for the purpose of investigation any more. The fundamental postulate of criminal jurisprudence is that an accused is presumed to be innocent till guilt is proved against him. Keeping of applicant/accused in continuous detention would amount to infringement of his fundamental right to life and liberty which would amount to his incarceration and inflicting pre-trial punishment which is against the mandate of criminal jurisprudence as punishment can only be inflicted after full flagged trial and after holding the accused guilty. As per the prosecution story, on 02-08-2021 victim alongwith her sister were at home, accused Abhi Kumar came in their house and told the victim that his mother is going somewhere so she should come in his house to collect books of 12th class, victim went in the house of Abhi Kumar who told her to go inside the room to collect the books, when the victim went inside the room Abhi Kumar locked the victim in the room and made the telephonic call to accused Naman Kumar that he has brought the victim in his house and he should come there, Abhi Kumar and Ajay Kumar were standing outside the room whereas Naman Kumar forcibly raped the victim. Be it noted, that the principal accused namely Naman Kumar has been granted bail on account of his juvenility by the order of learned CJM Kathua (Principal Magistrate Juvenile Board Kathua). Copy of the statement of the victim recorded u/s 164 Cr.P.C. appended with the record depicts, that juvenile accused Naman Kumar is alleged to have committed rape upon the victim/prosecutrix, whereas, Abhi Kumar and Ajay Kumar were standing outside the room. Applicant/accused, as per the contents of FIR and the statement of victim/prosecutrix recorded u/s 164-A Cr.P.C. has not participated in the commission of crime and was standing outside the room while the victim was allegedly raped by principal accused Naman Kumar. In view of the aforesaid discussion, it is amply clear, that there would be no danger of the course of justice being thwarted if applicant/accused is granted bail. Therefore, applicant/accused have carved out a strong case for grant of bail in his favour. The bail application succeeds and the same is allowed. In view of the aforesaid discussion, it is amply clear, that there would be no danger of the course of justice being thwarted if applicant/accused is granted bail. Therefore, applicant/accused have carved out a strong case for grant of bail in his favour. The bail application succeeds and the same is allowed. Accordingly, applicant/accused is admitted to bail subject to his furnishing one surety bond in the sum of Rs. 50,000/- to the satisfaction of Registrar Judicial this Court with furnishing of personal recognizance of like amount before Superintendent District Jail Kathua. However, before parting, the following conditions are imposed upon the applicant/accused: (i) that the applicant/accused shall not influence the prosecution witnesses or intimidate them or dissuade them from deposing before the court. (ii) that the applicant/accused shall appear before the trial court on each and every date of hearing during the trial except for special circumstances beyond their control. (iii) that the applicant/accused shall not leave the territorial jurisdiction of the trial court without seeking prior permission from it. (iv) that in case respondent collects any material during the period the applicant/accused is on bail that he is influencing the witnesses or have tried to intimidate them, the prosecution would be within it’s right to move an application before this court for cancellation of the bail. 7. Disposed of accordingly.