Sr.No.

91

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Bail App No. 416/2021

Reserved on :18.03.2023
Pronounced on:31.03.2023

….Petitioner(s)
-
Versus
1. UT of J&K through Secretary to Government,
2. Home Department, Civil Secretariat, Jammu/Kashmir,
3. SHO Police Station Katra District Reasi,

….Respondent(s)

CORAM: HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

O R D ER
31 – 03 -2023
1. Petitioner has sought regular bail in terms of Section 439 of the Code of

Criminal Procedure (hereinafter referred to as the ‘Code’) in case FIR No.

112/2021 registered with Police Station Katra for commission of offences
punishable under sections 376 IPC r/w Section 4 of POCSO Act. It is
averred, that petitioner has been falsely implicated in the case, respondent
No.3 filed a false and frivolous complaint against the petitioner on
instigation by respondent No.4 who is working as teacher and manipulates
a story to dragged the petitioner in heinous offence, whereby, petitioner
has been arrested on 24.06.2021 after six (6) days from the date of alleged
occurrence of 18.06.2021; petitioner is an innocent person has done
nothing in connection with crime, in fact dispute between the petitioner
and respondents. 3 & 4 is civil in nature in regard to a passage towards the
house of respondent No.4 which does not exist in revenue records,
however, they were quarreling and fighting for the said dispute but
compromised amicably on 26.06.2021. It is averred, that the petitioner was
working as a laborer, few years back from the date of alleged occurrence
he decamped stones with the tractor trolley near his house where the
 2 Bail App No. 416 of 2021

passage passed through towards the house of respondent Nos. 3 & 4, on

this they were irritated and had a planned to put the petitioner behind the
bar, ultimately with the help of police they succeeded and detained him
illegally in police custody in Police Station Katra since 24.06.2021 and
now he is languishing in District Jail Reasi, petitioner is the only earning
members of the family and due to his arrest, the family members are at the
verge of starvation, Challan is pending in the court of Ld. Principal
Sessions Judge Reasi, petitioner is ready to furnish personal and surety
bonds to the satisfaction of this Court and undertakes to abide by all the
terms and conditions imposed by this court.

2. Respondent/UT of J&K has opposed the bail on the grounds, that accused

has committed heinous offence against society and any concession of bail
to him would not be in the interest of the society at large. It is contended,
that on 24.06.2021 complainant
alongwith his minor
daughter whose age is approximately 10 years came in Police Post
Kakryal, filed an application written in Urdu to I/C P/P Kakryal, wherein it
stated that on 18th of June in the afternoon his daughter/prosecutrix went at
„Nali‟ for taking water with her younger brother aged 05 years, and at that
time the complainant was at his home, in the meantime, suddenly one
person namely came on the
spot and committed rape with his daughter/prosecutrix forcefully, and
threatened her that if she disclose about the incident at home, he will kill
her. It is contended, that his daughter is underage and is not aware of social
cause, effect and she did not narrate at home about the incident, and on 23rd
of June her daughter narrated about the incident, due to which he delayed
to give report, on the basis of application, offences under section 376 IPC
and 4-POCSO Act have been made out and the report of cognizable
offence entered in the Daily Diary and DD extract submitted to SHO
Police Station Katra through SPO Karan Singh No. 562-RSI with request
to lodge FIR. It is stated, that as per the contents of DD extract and request
of I/C PP Kakryal, a case FIR No. 112/2021 under section 376 IPC & 4-
POCSO Act stands registered and investigation of the case was entrusted
to I/C P/P Kakryal Inspector Vishal Dogra PID No. ExJ-109535, during
 3 Bail App No. 416 of 2021

investigation of the case I.O visited the spot, prepared the site plan, I.O got
conducted the medical examination of the victim through MO CHC Katra,
I.O collected the vaginal slides of the victim sent at FSL Jammu for
chemical analysis and expert opinion, during further course of
investigation I.O recorded the statement of the victim u/s 164 CrPC before
the competent court and other witnesses u/s 161 CrPC, after that the
potency test of the accused was conducted by the MO at CHC Katra and
obtained the report, I.O got the FSL report and final medical opinion from
the Gynecologist CHC Katra and on the basis of site plan, statement of the
victim as well as the statement of other witnesses recorded u/s 161 CrPC
and the medical report, offences u/s 376 IPC, 4-POCSO Act have been
established against the accused on 01.09.2021 after
completion of investigation Challan of the case has been produced before
the Court of Ld. Principal Sessions Judge Reasi, prayer has been made for
rejection of the bail.

3. Ld. Counsel for petitioner has vehemently sought release of accused on

bail by canvassing arguments, that the FIR in question is motivated and

tainted with personal gauge, as such, the incident as alleged in the FIR has
never occurred and a totally false and frivolous story has been projected,
which is for away from the truth. It is argued, that for the last more than
one 1 year & 9 months petitioner is languishing in District Jail Reasi, “bail
is a rule” and “refusal is an exception”, personal liberty of accused is of
paramount importance as he is presumed to be innocent till guilt is proved
against him, keeping of accused in incarceration in the jail for indefinite
period would amount to inflicting pre-trial punishment to him which is
against the basic principle of criminal jurisprudence, accused is resident of
has deep roots in
the society and therefore does not possess the golden wings to flee from
justice. Prayer has been made for enlargement of the petitioner on bail.

4. Ld. GA for the official respondents with Counsel for private respondents

have opposed the bail by vehemently articulating arguments, that the

prosecutrix/victim at the time of occurrence on 18-06-2021 was minor
child of about 10 years of age, accused has committed rape upon the minor
child and the criminal act of accused is squarely covered by the definition
 4 Bail App No. 416 of 2021

of Section 3(b) of POCSO Act 2012 as petitioner/accused has inserted his

finger into the vagina of the prosecutrix/victim. It is argued, that
prosecutrix in her statement recorded before the trial court has not ruled
out the complicity of accused from commission of crime, accused has
created sensational threat in the society against weaker sex, granting of
bail at this stage would shake the confidence of people in the society,
offence indicted against accused is punishable u/s 4(2) of POCSO Act and
the maximum imprisonment is for life which means the natural life of a
person, whereas, the minimum imprisonment shall not be less than 20
years and taking into account the gravity of offence and the severity of
punishment, there is every likelihood that the accused will abscond during
trial and flee from justice. It is moreso argued, that to constitute an offence
of rape, it is not necessary that there should always be penetration by penis
and even by the definition of penetrative assault u/s 3(b) of POCSO Act
2012, a person is said to commit offence of penetrative sexual assault
(rape) by inserting to any extent any object or part of body not being the
penis into the vagina of the victim, therefore, even the medical reports that
there is not rupture of hymen or emission of semen, fully support the case
of prosecution as by inserting a finger no semens can be ejected.

5. Heard Ld. Counsel for petitioner/accused, & Ld. GA with counsel for

private respondents. I have pursued the contents of bail application,

certified copy of the statement made by the prosecutix/victim before the
trial court, bestowed my thoughtful consideration to material aspects
involved in the case and have also gone through the relevant law on the
subject matter meticulously.

6. Before deciding the case in hand, I would like to enumerate the factors

which should be taken in consideration while granting or refusing bail in a

non-bailable case. Hon'ble Supreme Court of India in a case law titled
State of U.P vs Amarmani Tripathy, reported in 2005 (8) SCC 21, vide
paragraph-18 has culled out certain factors to be taken in consideration
while deciding bail application in non-bailable offences as under:-
"It is well settled that the matters to be considered in an application
for the bail are:-
(i) whether there is any prima-facie or reasonable ground to believe that the
accused has committed the offence;
 5 Bail App No. 416 of 2021

(ii) nature and gravity of charge;

(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing if released on bail;
(v) character, behavior, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with; and
(viii) danger, of-course the justice being thwarted by grant of bail.
Indeed, these guidelines are not exhaustive, nonetheless, these have to be
considered while passing an order in a bail application in a non-bailable
offence. The aforementioned factors for grant or refusal of bail in non-
bailable offences are discussed in the case in hand, under the following
headings.
7. Prima-facie or reasonable ground to believe that the accused has

Committed the offence:-

It is profitable to reiterate here, that law was set into motion by
lodging FIR No. 112/2021 u/s 376 IPC r/w Section 4 of POCSO Act in
Police Station Katra to the effect, that on 18-06-2021 in the afternoon
when prosecutrix went at Nali for fetching water with her younger brother
age 5 years, petitioner/accused came on spot and committed rape upon her
and threatened her that if she disclosed about the incident at home she
would be killed. Therefore, there is a prima-faice or reasonable ground to
believe that the petitioner/accused has committed the offence of rape upon
the prosecutrix.

8. Nature and gravity of charge:-

The nature and gravity of charge is very serious, as the petitioner/accused
committed rape upon the prosecutrix. The lustful designs of the
petitioner/accused crossed all borders of indecency as he raped the minor
victim unmindful of the shattering mental trauma the later suffered, as a
raspiest not only causes physical injuries upon the possession of a women,
but more indelibly leaves a scar on her dignity, chastity, honour and
reputation in the society. Enlargement of the petitioner/accused on bail in
the case in hand at this stage when the trial is yet incomplete, is sure to
shake the confidence of the people at large whose interests are involved in
the case. Instant case is a case of huge public importance.
In AIR 2007 S.C 451(Rajesh Ranjan Yadav @ Pappu Yadav Vs.
C.B.I through its Director), Hon'ble Apex Court, while comparing the
general interest of society with individual liberty of a person enshrined in
Article 21 of the Constitution of India, in head note of the case law, held
 6 Bail App No. 416 of 2021

as under:-
"While it is true that Article 21 of the constitution of India is of great
importance because it enshrined the fundamental right to individual
liberty, but at the same time a balance has to be struck between the
right to individual liberty and interest of society. No right can be
absolute, and reasonable restrictions can be placed on them. While it
is true that one of the considerations in deciding, whether to grant bail
to an accused or not is, whether he has been in Jail for a long time, the
court has also to take into consideration other facts and circumstance,
such as the interest of the society. Thus, grant of bail depends on facts
and circumstances of each case and it cannot be said there is any
absolute rule that because a long period of imprisonment has expired
bail must necessarily be granted."
In AIR 2004 S.C 433 (State of Karnatka...Appellant Vs.
Putaraja..Respondent) Hon'ble Mr. Justice Arjit Pasayat(His Lordships the
then was Judge of Supreme Court) while describing the gravity and
magnitude of offence of rape against minors, in paragraph-1 held as
under:-
"A rapist not only causes physical injuries but more indelibly leaves
a scar on the most cherished possession of a woman i.e. her dignity,
chastity, honour and reputation. The deprivation of such animals in
human form reach the rock bottom of morality when they sexually
assault children, minors and like the case in hand."
In AIR 1996 S.C 922, Hon'ble Mr. Justice Kuldeep Singh and
Hon‟ble Mr. Justice S. Sagir Ahmed( Their Lordships then were Judges of
Supreme Court) while describing rape as most hated crime in the society
observed as under:-
"Rape is not only a crime against the person of a woman
(victim) it is crime against the entire society. It destroys
the entire psychology of a woman and pushes her into
deep emotional crises. It is only her sheer will power
that she rehabilitates herself in the society which
oncoming to know of the rape, looks down upon her in
derision and contempt. Rape is, therefore, the most hated
crime. It is crime against basic human rights and is also
violative of victims most cherished of the Fundamental
Rights namely the Right to life contained in Article-21."
In AIR 1996 SCW 998 in para 20, the Apex court while describing
the gravity of offence of rape, held as under:-
"Rape is not merely a physical assault, it is often destructive of
the whole personality a victim, a murderer destroys the physical
body of his victim, a rapist degrades the very soul of the helpless
female. The court, therefore, shoulder a great responsibility while
trying an accused on charges of rape. They must deal with such
cases with utmost sensitivity. The courts should examine the
broader probabilities of a case and not get swayed by minor
contradictions or insignificant discrepancies in the statement of
 7 Bail App No. 416 of 2021

the prosecutrix."
The tests of law and the ratios of the Judgments (supra), make it
abundantly clear, that rape is the most hated crime in the society which
leaves a scar upon the most cherished personality of a victim, and,
therefore, no self-respecting woman would normally concoct a story of
rape. In the case in hand, the crime alleged against the petitioner/accused
has a deleterious effect on the civilized society. Gravity of crime is to be
necessarily assessed from the nature of crime. A crime may be grave, but
the nature of the crime may not be so grave. Similarly, a crime may not be
so grave but the nature of the crime may be very grave. It is
unambiguously reiterated here, that since rape leaves a permanent scar on
the most cherished possession of woman and serious psychological impact
on the victim and her family, the prosecutrix as in the case in hand, would
not therefore, have concocted story of rape against petitioner/accused to
falsely implicate him by putting her honour, character, reputation and her
future marriage prospects on stake in the society. Ordinarily, the offence
of rape is grave by its nature.
9. Severity of Punishment and danger of accused absconding or fleeing if

released on bail:-
The maximum punishment provided for the offence of penetrative sexual
assault u/s 4(2) of POCSO Act indicted against petitioner/accused, when
the victim child is below 16 years of age is life imprisonment which shall
mean imprisonment for the reminder of natural life of a person, and the
minimum imprisonment shall not be less than 20 years. Where the
punishment provided for an offence is severe in nature, there is every
danger of the accused absconding or fleeing from justice if released on
bail. More severe the punishment is, more are the chances of the accused
to abscond during to the trial or flee from justice if released on bail. In the
case in hand, the prosecutrix during trial in her deposition before the trial
court has not ruled out the complicity of accused in the crime as she has
not turned hostile. There is every danger that the petitioner/accused will
abscond or flee during trial if enlarged on bail.
10. Character, behavior, means and position of the accused:-
Petitioner/accused does not enjoy special status in the society as compared
to the victim as both of them are residents of Katra District Reasi and
 8 Bail App No. 416 of 2021

none of them enjoy special status in the society. As per the allegations
against petitioner/accused, on 24-06-2021 he committed the crime of
penetrative sexual assault upon minor prosecutrix aged 10 years. No self-
respecting woman would normally concoct a story of rape just to falsely
implicate a person. Petitioner/accused therefore does not enjoy any special
status in the society so as to succeed in his case for grant of bail.
11. Likelihood of the offence being repeated:-
In view of the aforesaid discussion, it is clearly gatherable, that there is
prima-facie or reasonable ground to believe that the petitioner/accused has
committed the offence indicted against him. Punishment provided for
offence of rape u/s 4(2) of POCSO Act is life imprisonment. More grave
is the offence, more are the chances of the accused absconding and fleeing
from justice. If the petitioner/accused is enlarged on bail, there is every
likelihood of the offence being repeated by him, as grant of bail would
encourage the petitioner/accused in repeating the offence.
12. Reasonable apprehension of the witnesses being tempered with:-
It is profitable to reiterate here, that Challan against petitioner/accused is
pending trial before the Court of Ld. Pr. Sessions Judge Reasi. Charges
have been framed wherein petitioner/accused has pleaded not guilty and
preferred trial. Prosecutrix/victim has deposed before the trial court as
prosecution witness, wherein she has not turned hostile and has not ruled
out the complicity of petitioner/accused in the crime. The remaining
witnesses of the prosecution are yet to be examined, therefore, there is
reasonable apprehension that if enlarged on bail, petitioner/accused may
influence/win over the remaining witnesses and temper the prosecution
evidence.
13. Danger, of the course of justice being thwarted by grant of bail.:-
In view of the plethora of judgments referred above, it can be safely held,
that a balance has to be struck between the „right to individual liberty‟ and
„interest of the society‟ and no right can be absolute and reasonable
restriction can be placed on it. The grant of bail depends upon facts and
circumstances of each case, and it cannot be said, that there is absolute
rule that because a long period of imprisonment has expired, bail must
necessarily be granted. Rape has been considered as a scar on the dignity,
chastity, honour and reputation of a woman, and a crime against the entire
society, and is violative of the most cherished fundamental right of the
 9 Bail App No. 416 of 2021

victim, namely " Right to Life" contained in Article 21 of the constitution

of India. It is profitable to reiterate here, that the petitioner/accused has
been arrested on 24-06-2021 and at present is lying in Judicial Custody in
District Jail Reasi for the last more than 1 ½ years . In view of the ratio of
judgment rendered in AIR 2007 S.C 451 (Rajesh Ranjan Yadav @ Pappu
Yadav v.s CBI through its Director), Hon'ble Supreme Court has held,
"that the interest of society outweighs the individual interest of a person,
and the longer period of imprisonment cannot be a ground for grant of
bail", and therefore, while applying the ratio of judgment (supra), the
longer period of incarceration of the petitioner/accused in the case in hand,
is not a ground for his enlargement on bail. There is every danger of the
course of justice being thwarted, if the petitioner/accused is enlarged on
bail.
14. Courts cannot loose sight of the fact that crime of violence upon women

and minor children are on increase and therefore the perpetrators of the
crime must be dealt with iron hands. A dastardly, diabolic and fiendish
manner in which the crime has been committed by the petitioner/accused
upon the prosecutrix, sends the shivers down to the spines of everybody
who is concerned with the administration of justice and maintenance of
rule of law. Leniency in matters involving sexual offences is not only
undesirable, but also against public interest. Such types of offences are to
be dealt with severity and with iron hands. Showing leniency in such
matters would be really a case of misplaced sympathy. The act of
petitioner/accused is not only shocking, but outrageous in contours. The
granting of bail to the petitioner/accused would lead to the danger of the
course of justice being thwarted. There is no plea for grant of bail on health
grounds, therefore, I hold that this is a fittest case where, "Jail" and not
"Bail", is the appropriate remedy. The basic law of bail can be found in
1962 SC 253 (Capitan Jagjit Singh's case) and then in the most-talked
about the case reported in 1978 SC 429 (GudikantiNarasimula and others,
Appellants v. Public Prosecutor, High Court of Andhra Pradesh,
Respondent) on the basis of which a sacred citation usually echoes in all
the courts of country, viz; "Bail or Jail", has also been mis-understood and
mis-applied on various occasions. These Judgments, do not lay down an
invariable law that it is always the "BAIL" that should be awarded by the
 10 Bail App No. 416 of 2021

court hearing a bail petition in a non-bailable case. I am afraid, if that were

the intention of legislature, then there ought not to be two categories of
offences, viz; “bailable” and “non-bailable”.

15. On these considerations and in view of the aforesaid discussion, I am of

the considered opinion, that this is the fittest case, where bail ought not be
granted and petitioner/accused too has failed to carve out a strong case for
bail in his favour. The bail application being utterly misconceived under
law, is disallowed, rejected and dismissed. As the speedy trial is the
fundamental right of an accused enshrined in Article 21 of the Constitution
of India, the Trial Court is directed to conclude the trial as expeditiously as
possible.

16. Dispose of accordingly.

Jammu: (Mohan Lal)
31.03.2023 Judge
Vijay

Whether the order is speaking: Yes/No

Whether the order is reportable: Yes/No