Kuldeep Kumar vs Union Territory Of J&K on 20 January, 2025

Jammu & Kashmir High Court

Kuldeep Kumar vs Union Territory Of J&K on 20 January, 2025

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

                                       h475




      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                              Bail App No.164/2024


                                                  Reserved on : 14.01.2024
                                                 Pronounced on : 20.01.2024


Kuldeep Kumar, age 35 years
S/o Sh. Des Raj
R/o Kotli Jijjan, Barola, Uhampur
Through his wife namely Preeti Devi, age 32 years
W/o Kuldeep Kumar R/o Kotli Jijjan, Udhampur                    ...Petitioner(s)


                           Through:-Mr. Gagan Basotra, Sr. Advocate with
                                   Mr. Mohinder Kumar, Advocate
      V/s

1.    Union Territory of J&K
      Through SHO Police Station,
      Rehambal District Udhampur

2.    Superintendent,
      District Jail, Udhampur.

3.    Miss X
      C/o SHO Police Station
      Rehambal District Udhampur
                                                             ...Respondent(s)
                          Through:- Mr. Sumeet Bhatia, GA
Coram: HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                                  JUDGMENT

1. This is an application by the petitioner under Section 483 of BNSS

seeking his enlargement on bail in case FIR No.251/2020 under Section 376

IPC read with Section 5(n)/6 of the Protection of Children from Sexual

Offences Act, 2012 (POCSO Act), who is facing trial before the Principal

Sessions Judge, Udhampur [“the Trial Court”]. Prior to approaching this
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Court, the petitioner had moved a similar application before the Trial Court

where the trial against the petitioner is pending adjudication. The Trial

Court after appreciating the rival contentions did not find it a fit case to

enlarge the petitioner on bail pending trial and as a result, rejected the

application for bail filed by the petitioner vide its order dated 7th June, 2024.

2. Being dissatisfied and aggrieved by the order dated 7th June, 2024

passed by the Trial Court, the petitioner has filed the instant petition

seeking indulgence of this Court to grant him bail in the aforementioned

case.

3. The petitioner seeks his enlargement on bail, inter alia, on the

following grounds:-

i) The petitioner is innocent and has been falsely implicated in

the FIR registered for commission of offence under Section

376 IPC read with 5(n)/6 of the POCSO Act.

ii) That there is huge unexplained delay of 8th months and two

days in the alleged occurrence and lodging of FIR, which fact

has escaped consideration of the Trial Court.

iii) That the medical record of the prosecutrix does not support the

case of the prosecution.

iv) That the family of the prosecutrix and the petitioner were

having some dispute in relation to the property and the FIR has
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been lodged with an oblique motive just to settle the civil

dispute.

iv) According to the prosecutrix, daughter of the petitioner was

also sitting in the car but the she has not been arrayed as

witness by the prosecution.

4. Per contra, in the objections filed by the official respondents the bail

plea has been opposed on the count that the petitioner is involved in a

serious offence and the bail application filed by him before the Trial Court

has already been dismissed. The complainant, though served and caused her

appearance, chose not to file any objections. During the course of

arguments, learned counsel have reiterated the contents of bail application

and memo of objections.

5. Heard learned counsel for the parties and considered the matter.

6. It seems that on 27th September, 2023, a letter was received from One

Stop Centre for Women Udhampur along with an application given by the

prosecutrix alleging that on 25th January, 2023 the petitioner had committed

rape upon her at about 0730 in the evening and he threatened that if she

informs anyone about the incident, he would kill her brother and mother.

Upon this, FIR No.251/2023 for offences under Section 376 IPC & 5/6

POSCO Act was registered at Police Station, Rehambal and the

investigation was undertaken by the concerned Police Station. During

investigation, medical examination of the prosecutrix was got conducted,

the Investigating Officer visited the scene of crime, prepared the site plan
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and photography was also done. The date of birth certificate of the

prosecutrix has been obtained from the concerned school, which indicates

her date of birth as 10th September, 2009. The statement of prosecutrix was

recorded under Section 164 Cr.P.C. and the statements of other witnesses

were recorded under Section 161 Cr.P.C. On 29th September, 2023, the

petitioner was taken into custody. On the basis of the investigation, offences

under Section 376 IPC read with Section 5(n)/6 POSCO Act have been

found established against the petitioner and challan came to be produced

before the Trial Court on 28th November, 2023. The petitioner has been

charged on 11th January, 2024, the petitioner denied the charge and claimed

to be tried. Statement of the prosecutrix stands recorded by the Trial Court

on 29th November, 2024.

7. Mr. Basotra, learned senior counsel appearing for the petitioner

referred to and relied upon the judgments of this Court rendered in the cases

of Vishal Bhagat and another v. Union Territory of Jammu and

Kashmir, JKJ Online 79997 and Nawaz Ahmad Sheikh v. Union

Territory of J&K and others, JKJ Online 85138.

8. The petitioner is involved in an anti social penal offence but at the

same time his involvement presently is at the stage of accusation only. The

factum of alleged commission of crime has been disputed by the learned

counsel for the petitioner on various factual and legal grounds. Law is well

settled that in any case bail cannot be withheld as a measure of punishment

and ordinarily withholding it, should be an exception only, to be involved in

exceptional circumstances attending a particular case. Nothing has been
Bail App No.164/2024
5

pointed out or brought on record to suggest that the case in hand has any

such exceptional features as could justify withholding bail to the petitioner

particularly because the petitioner has already suffered incarceration for

around one year and four months and the case having been already

instituted, charge framed and prosecution witnesses are being examined

before the Trial Court, there is no scope of hampering the investigation.

9. The Apex Court in case titled Satender Kumar Antil v. Central Bureau of

Investigation and another reported as (2022) 10 SCC 51 has laid down certain

guidelines for the courts to be followed while determining the bail applications.

The paragraphs 12 and a portion of paragraph 13 being relevant are reproduce

hereunder:

“BAIL IS THE RULE

12. The principle that bail is the rule and jail is the exception has
been well recognised through the repetitive pronouncements of this
Court. This again is on the touchstone of Article 21 of the
Constitution of India. This court in Nikesh Tarachand Shah v.
Union of India, (2018) 11 SCC 1, held that:

“19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980
SCC (Cri) 465], the purpose of granting bail is set out with
great felicity as follows: (SCC pp. 586-88 , paras 27-30)
’27. It is not necessary to refer to decisions which deal
with the right to ordinary bail because that right does
not furnish an exact parallel to the right to
anticipatory bail. It is, however, interesting that as
long back as in 1924 it was held by the High Court of
Calcutta in Nagendra Nath Chakravarti, In re [
Nagendra Nath Chakravarti, In re, 1923 SCC OnLine
Cal 318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] , AIR
pp. 479-80 that the object of bail is to secure the
attendance of the accused at the trial, that the proper
test to be applied in the solution of the question
whether bail should be granted or refused is whether it
is probable that the party will appear to take his trial
and that it is indisputable that bail is not to be
withheld as a punishment. In two other cases which,
significantly, are the “Meerut Conspiracy cases”

Bail App No.164/2024
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observations are to be found regarding the right to bail
which deserve a special mention. In K.N. Joglekar v.
Emperor [ K.N. Joglekar v. Emperor, 1931 SCC
OnLine All 60 : AIR 1931 All 504 : 1932 Cri LJ 94] it
was observed, while dealing with Section 498 which
corresponds to the present Section 439 of the Code,
that it conferred upon the Sessions Judge or the High
Court wide powers to grant bail which were not
handicapped by the restrictions in the preceding
Section 497 which corresponds to the present Section

437. It was observed by the Court that there was no
hard-and-fast rule and no inflexible principle
governing the exercise of the discretion conferred by
Section 498 and that the only principle which was
established was that the discretion should be exercised
judiciously. In Emperor v. H.L. Hutchinson
[Emperor v. H.L. Hutchinson, 1931 SCC OnLine All
14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p.

358 it was said that it was very unwise to make an
attempt to lay down any particular rules which will
bind the High Court, having regard to the fact that the
legislature itself left the discretion of the court
unfettered. According to the High Court, the variety
of cases that may arise from time to time cannot be
safely classified and it is dangerous to make an
attempt to classify the cases and to say that in
particular classes a bail may be granted but not in
other classes. It was observed that the principle to be
deduced from the various sections in the Criminal
Procedure Code was that grant of bail is the rule and
refusal is the exception. An accused person who
enjoys freedom is in a much better position to look
after his case and to properly defend himself than if
he were in custody. As a presumably innocent person
he is therefore entitled to freedom and every
opportunity to look after his own case. A presumably
innocent person must have his freedom to enable him
to establish his innocence.

28. Coming nearer home, it was observed by Krishna
Iyer, J., in Gudikanti Narasimhulu v. State [Gudikanti
Narasimhulu v. State, (1978) 1 SCC 240 : 1978 SCC
(Cri) 115] that: (SCC p. 242, para’1)
‘1…. the issue [of bail] is one of liberty, justice,
public safety and burden of the public treasury,
all of which insist that a developed
jurisprudence of bail is integral to a socially
sensitised judicial process. … After all,
personal liberty of an accused or convict is
fundamental, suffering lawful eclipse only in
terms of “procedure established by law”. The
Bail App No.164/2024
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last four words of Article 21 are the life of that
human right.’

29. In Gurcharan Singh v. State (UT of Delhi) [
Gurcharan Singh v. State (UT of Delhi), (1978) 1
SCC 118 : 1978 SCC (Cri) 41] it was observed by
Goswami, J., who spoke for the Court, that: (SCC p.
129, para 29)
’29. … There cannot be an inexorable formula
in the matter of granting bail. The facts and
circumstances of each case will govern the
exercise of judicial discretion in granting or
cancelling bail.’

30. In AMERICAN JURISPRUDENCE (2 nd, Vol. 8,
p. 806, para 39), it is stated:

‘Where the granting of bail lies within the
discretion of the court, the granting or denial is
regulated, to a large extent, by the facts and
circumstances of each particular case. Since
the object of the detention or imprisonment of
the accused is to secure his appearance and
submission to the jurisdiction and the judgment
of the court, the primary inquiry is whether a
recognizance or bond would effect that end.’
It is thus clear that the question whether to
grant bail or not depends for its answer upon a
variety of circumstances, the cumulative effect
of which must enter into the judicial verdict.
Any one single circumstance cannot be treated
as of universal validity or as necessarily
justifying the grant or refusal of bail.”

24. Article 21 is the Ark of the Covenant so far
as the Fundamental Rights Chapter of the
Constitution is concerned. It deals with nothing
less sacrosanct than the rights of life and
personal liberty of the citizens of India and
other persons. It is the only article in the
Fundamental Rights Chapter (along
with Article 20) that cannot be suspended even
in an emergency [see Article 359(1) of the
Constitution]. At present, Article 21 is the
repository of a vast number of substantive and
procedural rights post Maneka Gandhi v.

Union of India [Maneka Gandhi v. Union of
India, (1978) 1 SCC 248] .”

13. Further this Court in Sanjay Chandra v. CBI (2012) 1
SCC 40, has observed that:

Bail App No.164/2024

8

“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 is
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.”

10. It is also a well recognized principle of granting bail that frivolity in

prosecution should always be considered and it is only the element of

genuineness that shall have to be considered in the matter of grant of bail

and in the event of there being some doubt as to the genuineness of the

prosecution case, in the normal course of events, the accused is entitled to

an order of bail.

11. Admittedly, there is a long delay of eight months and two days

between the alleged occurrence and filing of complaint. Further, daughter of

the petitioner, namely, Jhanvi, who according to the prosecutrix, had also

gone to the market to purchase some material along with the petitioner and

the prosecutrix on the day of alleged occurrence, has not been cited as

prosecution witnesses. Learned senior counsel appearing for the petitioner

would submit that the petitioner has been implicated in a false and frivolous

case just to settle civil/property dispute. He submits that according to the

statement of the prosecutrix, on 25th September, 2023, a quarrel had taken

place between her brother and the petitioner in which wife of the petitioner

got injured, she reported the matter to the police and the FIR in question

was lodged on the next day as a counter blast. He submits that all these facts
Bail App No.164/2024
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raise serious doubt about the genuineness of the prosecution case, as such,

prays for enlarging the petitioner on bail.

12. Before concluding the matter, I would like to observe that I have

consciously avoided consideration of the rival contentions touching merits

of the matter as the gravity of the offence that can be said to have been

committed; and other technicalities including delay in lodging the FIR, non

inclusion of the sole witness, who as per the prosecutrix was accompanying

the prosecutrix and the petitioner on the day of incident etc attending the

matter, deserve to be better left for appreciation of the Trial Court. The only

apprehension projected by the learned counsel for the respondents that the

petitioner may try to win over the prosecution witnesses if bail is granted in

his favour can be well taken care of by imposing stringent conditions while

granting bail.

13. For all that has been discussed above, the petition is allowed and the
applicant/accused is admitted to bail subject to the following conditions:

i) That he shall furnish personal bond in the amount of Rs.50,000/- with

one surety of the like amount to the satisfaction of the Trial Court.

ii) That he shall appear before the Trial Court on each and every date of
hearing;

iii) That he shall not leave territorial limits of Union Territory of J&K,

without seeking prior permission of the Trial Court;

iv) That he shall not directly or indirectly try to influence the prosecution
witnesses in any manner whasoever.

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v) In the event of violation of any of the conditions imposed while
granting bail, any of the respondents may approach this Court for
cancellation of the concession bail granted to the petitioner under this
order.

14. The bail application shall stand disposed of on the above lines.

(Moksha Khajuria Kazmi)
Judge
Jammu.

20.01.2024
Vinod.

Whether the order is speaking : Yes
Whether the order is reportable: Yes

Vinod Kumar
2025.01.20 14.31
I attest to the accuracy and
integrity of this document
Jammu