Jammu & Kashmir High Court
Shahista Begum And Others vs Ut Of Jammu And Kashmir And on 7 July, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
Bail App No. 163/2024
Shahista Begum and others ....applicant
Through :- Mr. Mohd Latief Malik Advocate.
V/s
UT of Jammu and Kashmir and
another
Through :- Mr. Eishan Dadeechi G.A.
I.O is present in person.
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT(ORAL)
1 This is an application filed under Section 438 of the Code of
Criminal Procedure seeking grant of anticipatory bail in favour of the
petitioners in connection with FIR No. 56/2024, registered on 06.07.2024 for
offences punishable under Sections 376-D and 109 of the Indian Penal Code
at Police Station Gool, District Ramban
2 The petitioners have submited that they have been falsely
implicated in a baseless and motivated case. Petitioner No.1 is the real sister
of the complainant (respondent No.2); petitioner No.2 is her husband; and
petitioner No.3 is her brother-in-law. It is stated that respondent No.2 is
married to one Abdul Hamid, and has two children, and is currently pregnant.
It is alleged that prior to her marriage, respondent No.2 had a child whose
paternity is unknown to the petitioners and that the said child was
subsequently given away to another person.
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3 The petitioners have further alleged that respondent No.2 has
filed a false and fabricated complaint against them and several family
members, including her real brother, maternal uncles, and other relatives, at
Police Station Kulgam in July 2024. The said complaint pertains to an
incident allegedly having occurred in December 2023. Initially, a zero FIR
was registered at Police Station Kulgam, which was subsequently transferred
to Police Station Gool, where it was registered as FIR No. 56/2024 for
offences under Sections 376-D and 109 IPC. It is contended by the petitioners
that they are innocent and that the FIR does not attribute any specific role to
them. It is alleged that the FIR has been lodged with the sole intention of
falsely implicating them for extraneous and monetary considerations. It is
further alleged that had any such incident actually occurred, respondent No.2
would have promptly lodged a report at Police Station Gool instead of
approaching the police after an unexplained and inordinate delay of nearly
seven months. The petitioners have claimed that they are being summoned to
the police station on a daily basis despite their innocence and apprehend arrest
in connection with a false and malicious complaint, thereby causing
irreparable damage to their personal reputation and social standing.
4 On 24.07.2024, this Court issued notice to the respondents and
directed that no illegal or undue harassment be caused to the petitioners.
5 Pursuant thereto, objections have been filed by the respondent-
UT. It is stated therein that in FIR No. 56/2024, offences under Sections 376,
452, and 342 IPC are made out against one Abdul Rehman, and under
Sections 376 and 341 IPC against one Mohd Rafiq. It is further stated that this
Court, in CRM(M) No. 955/2024, has already directed that investigation in
the case may proceed but no charge-sheet shall be filed without prior
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permission of this Court. It is further stated in the objections that the incident
in question has caused public outrage, and therefore, the interim protection
granted to the petitioners should be vacated.
6 On 06.06.2025, the Investigating Officer was directed to remain
present in person along with the case diary. Today, the I.O. is present in Court
and a copy of the status report filed in CRM(M) No. 955/2024, arising out of
the impugned FIR, has also been produced.
7 As per the status report (supra), the initial offences under
Sections 376-D and 109 IPC have been dropped, and the case now pertains to
offences punishable under Sections 376, 452, 342, and 341 IPC. The report
further states that the petitioners have not been arrested so far, and that the
complainant has not cooperated with the investigation, particularly by
refusing to undergo a DNA test of the child, despite repeated requests made
by the I.O.
8 Heard learned counsel for the parties and perused the material on
record.
9 Learned counsel for the petitioners has submitted that the
complainant’s refusal to undergo the DNA test seriously undermines the
credibility of the allegations. It is further submitted that there is no material on
record warranting custodial interrogation of the petitioners. The petitioners
have clean antecedents and are willing to cooperate fully with the
investigation.
10 Per contra, learned counsel for the UT has opposed the bail
application but has admitted that despite repeated requests, the complainant
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has failed to appear for the DNA test, which has hampered the progress of
investigation.
11 Upon consideration of the rival submissions and perusal of the
record, it is evident that the complainant has not extended the requisite
cooperation in the investigation, particularly by refusing to undergo the DNA
test, which is crucial for corroborating the allegations made in the FIR. Such
non-cooperation raises serious doubts about the veracity of the allegations and
has resulted in a delay in the investigation, which cannot be attributed to the
petitioners.
12 In the facts and circumstances of the case, especially keeping in
view the conduct of the complainant, and the willingness of the petitioners to
cooperate with the investigation, this Court is of the considered opinion that
custodial interrogation of the petitioners is not warranted. Accordingly, the
application is allowed. It is directed that in the event of arrest in FIR No.
56/2024, registered at Police Station Gool, District Ramban, for offences
punishable under Sections 376, 452, 342, and 341 IPC, the petitioners shall be
released on bail, subject to the following conditions:
(i) The petitioners shall furnish personal bonds along with
surety bonds in the amount of Rs.50,000/- each, to the
satisfaction of the Investigating Officer.
(ii) They shall cooperate with the investigation and appear
before the I.O. whenever required.
(iii) They shall not leave the Union Territory of Jammu &
Kashmir without prior permission of the I.O.
(iv) They shall not tamper with the prosecution evidence or try
to influence any witness.
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(v) If the petitioners violate any of these conditions, the
respondent-UT may approach this Court for cancellation of their
bail.
The application is disposed of accordingly.
(MOKSHA KHAJURIA KAZMI)
JUDGE
Jammu
07.07.2025
Sanjeev
Whether approved for judgment: Yes/No
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