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2023 DIGILAW 719 (JK)

Pritam Singh v. UT of Jammu and Kashmir

2023-12-16

RAJNESH OSWAL

body2023
JUDGMENT : Rajnesh Oswal, J. 1. Both the applicants in these two bail applications had filed separate bail applications before the Court of learned Principal Sessions Judge, Udhampur (hereinafter to be referred as 'the trial court') for grant of bail in Charge-sheet titled UT of J&K v. Ravi Kumar & Anr. and the learned trial court vide common order dated 04.06.2022 dismissed both the applications. 2. Now, the applicants have filed two separate applications for grant of bail. The applicant, namely, Pritam Singh has filed an application bearing No. 273/2022 for grant of bail on the ground that the mother of the prosecutrix had levelled false and frivolous allegations against the petitioner that obscene pictures/photos were sent on her Whatsapp account by the petitioner. It is stated by the petitioner that he is illiterate and he knows nothing about Whatsapp messages or call to the prosecutrix and had never sent any obscene picture. It is further stated that even the alleged photographs are not annexed with the charge-sheet by the Investigating Officer. He has raised a defence that his Whatsapp account might have been hacked by someone. 3. The applicant, namely, Ravi Kumar has filed an application bearing No. 406/2022 for grant of bail, thereby stating that he was arrested on 17.05.2021 in a false and frivolous FIR and the allegations levelled against the petitioner are vague. The applicant was charged on 01.01.2022 and the prosecutrix as well as her mother were examined on 24.02.2022 and 22.04.2022. Both of them have made contradictory statements to each other and there is no incriminating material against the applicant and whole of the story of the prosecution revolves around Suman, Jyoti and Sunny. The applicant has referred to the cross-examination of the prosecutrix as well as her mother to demonstrate that the applicant has been implicated in false and frivolous case. 4. Objections have been filed separately in both the applications and the bail applications are being objected on the ground that the allegations levelled against the applicants are very serious in nature as they were found to be involved in commission of offences under section 363,376, 201 IPC, Section 6 of the Protection of Children from Sexual Offences Act (for short, the POCSO Act) and Section 67, 67-A of IT Act. It is further stated that the learned trial court has rightly rejected the bail applications filed by both the applicants. It is further stated that the learned trial court has rightly rejected the bail applications filed by both the applicants. Besides, the official respondent has also narrated the factual aspects of the case. 5. Mr. Arjun Singh, learned counsel for the applicant in Bail Application No. 273/2022 argued that the applicant was arrested on 07.05.2021 and has been in custody for the last more than two and a half years and further there are no allegations against the petitioner that he has committed any offence under section 363 and 376 IPC. He further submitted that the continuous incarceration of the applicant on the vague allegations amount to punishment, as such, the applicant who is having no criminal antecedents deserves to be enlarged on bail. 6. Mr. Sachin Dogra learned counsel for the applicant in Bail Application No. 406/2022 argued that the prosecutrix and her mother have made contradictory statements, which clearly shows that the applicant has been falsely implicated in the commission of offences. He placed reliance upon the judgments of this High Court in Vishal Bhagat & Anr. v. UT of Jammu and Kashmir, Badri Nath v. UT of J&K & Anr. 2023 (3) JKJ 45 [HC], Asgar Ali v. UT of J&K & Anr. 2023 (3) JKJ 5 2 [HC], Abid Hussain Mir v. UT of J&K, 2023 (6) JKJ 187 [HC] and Devinder Singh & Ors. v. UT of J&K & Anr. 2023 (3) JKJ 5 [HC]. 7. Per Contra, Mr. Dewakar Sharma, learned counsel for the respondents argued that the applicants have committed offences against the society, as such, they are not entitled to concession of bail. 8. Heard and perused the record. 9. A perusal of the record reveals that on 26.03.2021 the mother of the prosecutrix submitted a written application with the Police Station, Ramnagar, thereby stating that her daughter who was 14 years of age went to school on 24.03.2021 at about 09.30 A.M. but she did not return. Despite frantic efforts she could not be found. It was also mentioned in the application that she was receiving threats and unwanted calls from Mobile No. 7889373484 and the caller was abusing and threatening her of dire consequences. She was also sent obscene pictures from the said phone on her Whatsapp account. On receipt of the application, FIR No. 42/2021 under section 363 IPC was registered at Police Station, Ramnagar. She was also sent obscene pictures from the said phone on her Whatsapp account. On receipt of the application, FIR No. 42/2021 under section 363 IPC was registered at Police Station, Ramnagar. During the course of investigation, a request was also made for obtaining the CDR of Mobile No. 7889373484 to DPO Udhampur, from which the complainant received obscene photos. The CDR/SDR of the abovementioned number was obtained and on analysing the same, the number was found to be that of the applicant-Pritam Singh. The search of the victim/prosecutrix was also made and for that purpose team of Police Station, Ramnagar was also sent to Delhi. Photo copies of the obscene pictures were also obtained from the complainant and offences under relevant sections of the IT Act were also added. During the course of investigation, the applicant/accused Pritam Singh was arrested along with the phone and SIM card. Efforts were made to search the prosecutrix at various places including Jammu, Kathua and Delhi. On 17.05.2021 while the team was returning after conducting search at various places in Delhi, the prosecutrix alongwith the accused-Ravi Kumar was apprehended at Roun Domail Railway Station, Ramnagar, Udhampur on the basis of identification by Mohinder Kumar. Medical examination of the victim was got conducted from SDH Ramnagar and thereafter she was handed over to her father after completion of the legal formalities. The statement of the prosecutrix was recorded under section 164 Cr. P.C. Thereafter, the complainant again produced the victim before the Investigating Officer with a prayer that the statement of the victim recorded earlier under section 164 Cr.P.C. was not true and she wanted to record her statement again. The victim was again produced before the JMIC, Ramnagar for recording of her statement and after completion of the investigation, allegations of commission of offences under sections 363, 376 IPC Section 6 of the POCSO Act were proved against the applicant, namely, Ravi Kumar and offences under sections 201 IPC, 67 and 67-A of IT Act were proved against the applicant, namely, Pritam Singh. The charge-sheet was produced before the Court on 14.08.2021. The Date of Birth of the prosecutrix is 13.03.2006. 10. Notice was issued to the respondent No. 2- complainant, but the complainant has not chosen to cause appearance before the Court. 11. The trial court record was also summoned. The charge-sheet was produced before the Court on 14.08.2021. The Date of Birth of the prosecutrix is 13.03.2006. 10. Notice was issued to the respondent No. 2- complainant, but the complainant has not chosen to cause appearance before the Court. 11. The trial court record was also summoned. A perusal of the trial court record reveals that the applicant-Ravi Kumar was charged for commission of offences under Sections 363, 376 IPC and Section 6 of POCSO Act, whereas the applicant-Pritam Singh has been charged for commission of offences under Section 67 IT Act and Sections 506 and 509 IPC. A perusal of the challan/charge-sheet filed against the applicants reveals that 30 witnesses have been cited by the prosecution. The victim, the complainant and father of the prosecutrix have already been examined during the span of almost one year. The applicant Ravi Kumar was arrested on 17.05.2021 whereas the applicant namely Pritam Singh was arrested on 07.05.2021. The record of the trial court available before this court is only till 10.12.2022. 12. So far as applicant, Pritam Singh is concerned, he has only been charged for commission of offences under sections 67 IT Act and 506, 509 IPC and the allegations against him are that he from his mobile phone bearing No. 7889373484 sent obscene photos to the mother of the prosecutrix on her phone and had threatened her not to disclose the same to anyone that the other accused, namely, Ravi Kumar had enticed and taken the victim to Delhi and sexually assaulted her. There are no allegations against the applicant-Pritam Singh in respect of commission of offences under sections 363 & 376 IPC and Section 6 of POCSO Act. The minimum punishment which can be awarded to the applicant-Pritam Singh for offences, in respect of which he has been charged, is seven years. The applicant has already been under custody for more than two and a half years and conclusion of the evidence may take some time, as such, the petitioner has succeeded to make out a case for grant of bail. 13. So far as the accused/applicant Ravi Kumar is concerned the allegations against him are that he on 24.03.2021 enticed the minor girl fifteen years of age and took her to Delhi and retained her in his custody till 17.05.2021 and during that period sexually assaulted her. 13. So far as the accused/applicant Ravi Kumar is concerned the allegations against him are that he on 24.03.2021 enticed the minor girl fifteen years of age and took her to Delhi and retained her in his custody till 17.05.2021 and during that period sexually assaulted her. The applicant has been charged for commission of offences under section 363, 376 IPC and Section 6 of POCSO Act. So far as Section 376 IPC is concerned, the same is punishable for imprisonment for a term not less than 20 years extendable up to imprisonment for life when the victim is minor. So far as offence under section 6 of POCSO Act is concerned, the same provides for an imprisonment for a term not less than 20 years extendable to imprisonment for life. Section 29 of the POCSO Act prescribes that when a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and Section 9 of the Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. The victim was almost 15 years of age at the time of commission of offence, whereas the applicant/accused Ravi Kumar was 21 years of age. The statement of the victim has been recorded before the learned trial court and this Court has gone through the statement of the victim. From the record it is evident that the victim has not turned hostile. Whether her evidence is sufficient to bring home the guilt of the applicant or not is a matter of appreciation of evidence. Though, the applicant/petitioner, namely, Ravi Kumar has been in custody for more than two and a half years, but the allegations levelled against him are very serious in nature and in the event the prosecution succeeds in proving the case, then he can be inflicted with a minimum imprisonment for a term of 20 years. 14. The Supreme Court in Rohit Bishnoi v. State of Rajasthan & Anr. has held as under: “22. 14. The Supreme Court in Rohit Bishnoi v. State of Rajasthan & Anr. has held as under: “22. While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail, courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing on the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. While considering an application for grant of bail, a prima-facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-a-vis the offence/s alleged against an accused.” (Emphasis added) 15. The contention of the applicant-Ravi Kumar that the prosecutrix and her mother have made statements to the prosecution story cannot be appreciated at this stage, while considering the issue of grant of bail or refusal thereof, lest it shall cause prejudice to either of the parties during the course of trial. 16. This Court is of the considered view that the difference of age between the victim and accused is also one of the relevant considerations for grant/refusal of bail in POSCO cases. The judgment relied upon by the learned counsel for the applicant in Vishal Bhagat & Anr. v. UT of Jammu and Kashmir (supra), the age of victim was 17 years, whereas in the present case, the age of the victim is 15 years. As such, the same is not applicable to the instant case in the facts and circumstance of the case. The other judgments relied upon by the learned counsel for the petitioner are also not applicable in the present facts and circumstances of the case. 17. The law is well settled that the Court should refrain from appreciating the evidence, while considering the bail application. Further the Hon'ble Supreme Court of India in Satish Jaggi v. State of Chhattisgarh, has held as under: “12. 17. The law is well settled that the Court should refrain from appreciating the evidence, while considering the bail application. Further the Hon'ble Supreme Court of India in Satish Jaggi v. State of Chhattisgarh, has held as under: “12. Normally if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges leveled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial. 13. In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amount to the regular trial pointing out the deficiency and reliability/credibility of the prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain.” (Emphasis added) 18. In light of above, the applicant-Ravi Kumar is held not entitled to bail at this stage. Equally true is that the right to speedy trial is a fundamental right and after perusing record of the learned trial court this Court finds that from May 2022 till December 2022 i.e. for a period of seven months, only one witness has been examined by the prosecution. The right to speedy trial of the applicant can be protected by directing the trial court to expedite the trial. The right to speedy trial of the applicant can be protected by directing the trial court to expedite the trial. Accordingly, the bail application of applicant-Ravi Kumar is dismissed and the trial court is directed to conclude the trial with in the period of six months from today and in the event, the trial is not concluded, the applicant-Ravi Kumar shall be at liberty to move fresh application before the trial court for grant of bail. 19. In view of the above, the application filed by the applicant-Pritam Singh is allowed on the following terms and conditions: (i) Subject to furnishing of bail bonds with two solvent sureties to the tune of Rs. 25,000/- each to the satisfaction of learned 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 bail either physically or through any other mode. (iii) He shall appear before the learned trial court on each and every date of hearing. (iv) He shall not leave the territorial jurisdiction of UT of Jammu and Kashmir without prior permission of the learned trial court. 20. Disposed of.