Jammu & Kashmir High Court – Srinagar Bench
Umar Bashir Khan vs Ut Of J&K & Others on 24 December, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No.16
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Bail App No.104/2024
UMAR BASHIR KHAN ... PETITIONER(S)
Through: - Mr. Syed Irfan Masoodi, Advocate.
Vs.
UT OF J&K & OTHERS ...RESPONDENT(S)
Through: - Mr. Mubashir Majid Malik, Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER(ORAL)
24.12.2024
1) The petitioner has sought bail in a case arising out of FIR
No.112/2018 for offences under Section 451, 376/511, 354 and 506 RPC
registered with Police Station, Aishmuqam.
2) The prosecution case discernible from the challan is that on
07.12.2018, the prosecutrix lodged a report with the police after getting
it endorsed from the jurisdictional Magistrate, alleging therein that
during the intervening night of 5th/6th December, 2018, the petitioner
trespassed into her house, whereafter he gave a thrashing to her. It was
further alleged that the petitioner tried to commit sexual assault upon her
but she raised a hue and cry. It was also alleged that the prosecutrix was
dragged by the petitioner by her hair and she was given life threats by
him. On the basis of aforesaid report, the police registered FIR for
Bail App No.104/2024 Page 1 of 6
offences under Section 451, 376/511, 354 and 506 of RPC and started
investigation of the case.
3) During investigation of the case, the statement of the prosecutrix
under Section 164 of the Cr. P. C was recorded before the Magistrate, in
which she repeated and reiterated the allegations which she had leveled
in her report. After investigation of the case, offences under Section 451,
376/511, 354 and 506 of RPC were found established against petitioner
and the chargesheet was laid before the trial court on 29.11.2021.
4) It seems that at the time of presentation of aforesaid charge sheet,
the petitioner was in custody in connection with FIR No.69/2019 for
offences under Section 8/20, 27A of the NDPS Act of Police Station,
Gangyal Jammu. After the petitioner was released on bail in FIR
No.69/2019 of P/S Gangyal, Jammu, he moved an application for grant
of bail before the trial court on 12.07.2024. The said application came to
be rejected by the trial court in terms of order dated 02.09.2024. It is
pertinent to mention here that the charges for offences under Section 345,
376/511, 506 RPC came to be framed against the petitioner on
10.07.2024.
5) The petitioner has sought bail on the grounds that the trial of the
case has already progressed and the statement of the prosecutrix has been
recorded wherein she has resiled from the version of occurrence which
she had given while making her statement under Section 164 of the Cr.
P. C. It has been further contended that the learned trial court has, in a
most mechanical manner, rejected the bail application of the petitioner
Bail App No.104/2024 Page 2 of 6
by assuming as if the petitioner was facing the charge of rape and not
one of attempt to rape.
6) The reply to the bail application has been filed by the respondents
wherein it has been contended that the petitioner has committed a grave
offence which is against society, as such, he cannot be enlarged on bail.
It has been further contended that if the petitioner is enlarged on bail,
there is every chance that he may tamper with prosecution witnesses. It
has also been contended that in the previous past, the petitioner has been
involved in offences under NDPS Act, as such, due to his past criminal
antecedents, he does not deserve to be enlarged on bail.
7) I have heard learned counsel for the parties and perused record of
the case.
8) 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
judgments, 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 release
on bail;
(v) character, behaviour, 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 justice being thwarted by grant of bail.
Bail App No.104/2024 Page 3 of 6
9) Adverting to the facts of the instant case, as already stated
hereinbefore, the charge against the petitioner is that he has attempted to
commit rape upon the prosecutrix during the dead of night by trespassing
into her house. The charge sheet against the petitioner has been laid
before the trial court in the year 2021 and charges against him have been
framed on 10.07.2024. A perusal of the trial court record reveals that the
statement of the prosecutrix has been recorded on 14.10.2024, in which
she has categorically narrated that the petitioner has only thrashed her
and he has never tried to commit rape upon her. In fact, in her cross-
examination, she has stated that there is a family dispute going on
between family of the petitioner and family of the prosecutrix, which
resulted in exchange of abuses and nothing more happened on the day of
occurrence. In the face of this statement of the prosecutrix, prima facie,
it appears that there are reasonable grounds to believe that the petitioner
has not committed the offence of attempt to rape against the prosecutrix.
At best, the petitioner may be involved in the offence of criminal trespass
which is not heinous in nature.
10) There is yet another aspect of the matter, which is required to be
highlighted. The learned trial court, while dismissing the bail application
of the petitioner vide its order dated 02.09.2024, has observed that it is a
case of sexual intercourse having been committed by the petitioner upon
the prosecutrix on the false promise of marriage. It would be apt to
reproduce the relevant extracts of the order dated 02.09.2024 passed by
the learned trial court, while declining to enlarge the petitioner on bail.
The same are reproduced as under:
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“6. Even from the statement of the prosecutrix
recorded in the court, it transpires that the
accused from the very beginning ellured the
prosecutrix. On the basis of promise of marriage
the accused time and again sexually exploited the
prosecutrix. When the sexual lust of the accused
from the prosecutrix was fulfilled, he avoided to
perform marriage with the prosecutrix. In such like
situation, a genuine inference can be drawn that
the accused from the very beginning of the
relationship with the prosecutrix was not honest
and he had maintained the relationship with the
prosecutrix only for the purpose of satisfying his
sexual lust.
7. From the circumstances appeared on going
through the statement of the prosecutrix, it could
conveniently be gathered that the intention of the
accused from the very beginning was not honest
and he was exploiting the woman ship of the
prosecutrix just to fulfill his sexual lust. If at all in
such process, the consent has been given by the
prosecutrix, it falls within the purview of Section 90
RPC as the consent was given under
misconception of fact that the accused is
intending to marry the prosecutrix…….”
11) From a perusal of the afore-quoted observations of the trial court
and, in fact, from a perusal of the order passed by the trial court on
02.09.2024 as a whole, it appears that the said court has decided the bail
application of the petitioner on the basis of facts of some other case. This
clearly reflects absolute non-application of mind and casual approach on
the part of the trial court. It is unimaginable that an officer of the level of
a Sessions Judge would approach the bail application of a person, who
is in incarceration, in such a casual manner.
12) While considering the bail application of a person who is in
custody, a Court is expected to be alive to the fact that it is dealing with
the life and liberty of an individual. Even a single day’s delay in grant of
bail to a person who is otherwise entitled to it amounts to violation of his
Bail App No.104/2024 Page 5 of 6
fundamental right to life and liberty. In the present case, had the learned
trial court taken pains to go through the contents of the challan filed
against the petitioner and the charge framed against him by the same very
trial court, perhaps the petitioner would have been saved from the agony
of languishing in jail for all these months and also from approaching the
High Court by way of the present application. The manner in which the
learned trial court has decided the bail application of the petitioner leaves
much to be desired.
13) For the foregoing reasons, while the petitioner is admitted to bail
subject to furnishing bail bond with one surety in the amount of
Rs.25,000/ each to the satisfaction of the trial court and subject to any
other conditions that may be imposed upon him by the trial court, it is
impressed upon the criminal courts under the jurisdiction of the High
Court of Jammu & Kashmir and Ladakh to remain sensitive and careful
while dealing with bail applications and avoid the copy paste syndrome
which, of late has crept in the functioning of the courts.
14) The bail application shall stand disposed of.
15) A copy of this order be sent to the trial court for information.
(SANJAYDHAR)
JUDGE
Srinagar,
24.12.2024
“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
27.12.2024 08:40 Bail App No.104/2024 Page 6 of 6