Jammu & Kashmir High Court
Ajay Singh vs Ut Of J&K & Ors on 27 December, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
(THROUGH VIRTUAL MODE)
Reserved on: 17.12.20242
Pronounced on: 27.12.2024
Bail App No.02/2024
AJAY SINGH ... PETITIONER(S)
Through: - Mr. Maneesh Rampal, Advocate.
Vs.
UT OF J&K & ORS. ...RESPONDENT(S)
Through: - Mr. Sumeet Bhatia, GA.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has, through the medium of present petition under
Section 439 of the Cr. P. C, sought regular bail in a case arising out of
FIR No.184/2022 for offences under Sections 376, 511, 382, 354, 506,
341 and 323 IPC read with Section 8 of POCSO Act registered with
Police Station, Reasi, which is stated to be pending before the Court of
Principal Sessions Judge, Reasi.
2) As per the prosecution case, on 21.07.2022, respondent No.3,
mother of the prosecutrix, lodged a report with Police Station, Reasi,
alleging therein that his daughter, aged about 13 years, who is a student
of 9th class, after coming back from her school at about 5.30 pm,
narrated to her that on her way back, the petitioner, who was riding a
motorcycle, stopped his motorcycle and offered lift to her. The daughter
2 Bail App No.02/2024
of the complainant (hereinafter referred to as “the prosecutrix”)
accepted the offer of the petitioner but while proceeding towards her
village, the petitioner stopped the motorcycle near a jungle. He asked
the prosecutrix to get down from the motorcycle and thereafter started
obscene conversation with her. The petitioner is alleged to have
dragged the prosecutrix inside the jungle, where he tried to commit rape
upon her. The prosecutrix raised a hue and cry and somehow managed
to get back to her home.
3) The complainant upon hearing the story from her daughter
narrated the same to her father and both of them proceeded to the house
of the petitioner. According to the complainant, at the relevant time, the
petitioner was not in his house but his father told them that he would
rebuke him and he also tendered apology on his behalf. While the
complainant and her husband were coming back to their house, at about
7.00 pm, the petitioner along with another person launched an attack
upon the complainant and her father. He also snatched a sum of
Rs.3000/ from the pocket of her father and when they raised hue and
cry, the petitioner fled away from the spot. On the basis of this report,
the police registered FIR No.184/2022 for offences under Section 376,
511, 341, 323 and 382 of IPC and started investigation of the case.
4) During investigation of the case, it was found that the age of the
prosecutrix at the relevant time was 13 years and her statement under
Section 164 of the Cr. P. C was recorded before the Magistrate.
3 Bail App No.02/2024
5) The prosecutrix in her statement made before the Magistrate has
stated that on 21.07.2022 at about 4.00 pm, when she was proceeding
to her home from her school, the petitioner came over there and offered
to carry her on his motorcycle to her home. While proceeding to her
home, the petitioner stopped his motorcycle near a jungle and started
abusing her, whereafter he took her towards jungle. The petitioner
touched her breasts and thereafter put her hand inside her shalwar and
tried to open it but she resisted. The petitioner threatened her that in
case she discloses the incident to anybody else, he would kill her. She
raised a hue and cry, whereafter the petitioner left the spot. She went to
her home and narrated the whole occurrence to her mother.
6) The petitioner has sought bail on the ground that the chargesheet
against him has been laid before the learned trial court on 10.08.2022
but till date only one prosecution witness has been examined. It has
been contended that the petitioner is in custody for the last about two
and a half years and there is no prospects of conclusion of the trial in
near future as 14 prosecution witnesses are yet to be examined in the
case. It has been further contended that the statement of the prosecutrix
has already been recorded and, as such, there is hardly any chance for
the petitioner to tamper with the prosecution witnesses. Lastly, it has
been submitted that the petitioner is ready to abide by any condition
that may be imposed upon him by this Court while granting bail in his
favour.
4 Bail App No.02/2024
7) The respondent-State has filed its objections to the bail
application, in which, besides narrating the prosecution story, it has
been contended that the petitioner is involved in a heinous crime and
there is every apprehension that he may influence the prosecution
witnesses.
8) Respondent No.3, the complainant, has, upon her appearance
before the Court, submitted that she is adopting the stand taken by the
official respondents.
9) I have heard learned counsel for the parties and perused the
material on record.
10) The legal position relating to grant of bail in heinous offences
like murder or rape has been laid down by the Supreme Court in its
catena of judgment, according to which the matters to be considered in
such cases are:
(i) Whether there is any prima facie or reasonable
ground to believe that the accused has committed
offence;
(ii) Nature and gravity of the charge;
(iii) Severity of punishment in the event of conviction;
(iv) Danger of the accused absconding or fleeing after
releaseon bail;
(v) character, behaviour, means, position and standing
of theaccused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
tamperedwith; and
(viii) danger of justice being thwarted by grant of bail.
11) Adverting to the facts of the present case, there is no doubt to the
fact that there is enough material on record in the shape of statement of
5 Bail App No.02/2024the prosecutrix recorded under Section 164 of the Cr. P. C as also during
the trial of the case to, prima facie, connect the petitioner to the alleged
crime. It is also not in dispute that the charge which the petitioner is
facing is grave in nature. So far as the maximum punishment for the
charge for offence under Section 8 of POCSO Act, for which the
petitioner is facing trial, is concerned, the same extends to five years of
imprisonment of either description with a minimum punishment of
three years of imprisonment along with fine. The petitioner has been in
custody for the last about two and a half years. As per Section 436-A
of Cr. P. C, if a person has, during the period of investigation, inquiry
or trial, undergone detention for a period extending upto one half of
the maximum period of punishment specified for that offence under that
law, he has to be released by the Court on his personal bond with or
without sureties. Although the petitioner has not spent one half of the
maximum punishment specified for Section 8 of the POCSO Act as yet,
but in another approximately one month’s time, he is going to serve
more than one half of the maximum punishment specified for offence
under Section 8 of the POCSO Act. This factor has to be taken into
account while considering the plea of bail made by the petitioner.
12) So far as the stage of trial is concerned, a perusal of the trial court
record would show that charges against the petitioner have been framed
on 07.10.2022 and till date only the statements of the prosecutrix and
her mother have been recorded. A perusal of the minutes of the
proceedings reveals that the case is being fixed by the trial court for
6 Bail App No.02/2024recording of evidence of the prosecution after almost every fifteen days
but the prosecution has been unable to produce its witnesses, as a result
of which only two prosecution witnesses have been examined for the
last more than two years. It is a settled law that long incarceration of an
accused without any significant progress in trial violates his
fundamental right to life guaranteed under Article 21 of the
Constitution. On this ground alone, the petitioner is entitled to grant of
bail in the present case.
13) Apart from the above, statement of the prosecutrix has already
been recorded and her mother has also been examined. Most of the
witnesses who are yet to be examined happen to be either the police
officials or the Government officials including the doctor. Therefore,
even if the petitioner is enlarged on bail, there is no chance of his
tampering with the prosecution witnesses at this stage because the
material witnesses have already been examined by the trial court. Even
otherwise, there is nothing on record to show that the petitioner is a
habitual offender or that he has the potential of tampering with the
prosecution witnesses. The petitioner, as per the material on record, is
a young boy having no previous criminal antecedents.
14) For what has been discussed hereinabove, the application is
allowed and the petitioner 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 learned trial court;
7 Bail App No.02/2024
II. That he shall appear before the trial court on each
and every date of hearing;
III. That he shall not intimidate or tamper with
prosecution witnesses/evidence.
IV. That he shall not leave the territorial limits of
Union Territory of J&K without prior permission of
the learned trial court;
15) The bail application shall stand disposed of.
(SANJAYDHAR)
JUDGE
Srinagar,
27.12.2024
“Bhat Altaf-Secy”
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document
30.12.2024 08:55
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