Sakida Begum vs State And Ors. on 24 November, 2017

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

Cr. Rev. No. 44/2017, MP No. 01/2017
Date of decision: 24.11.2017

Sakida Begum V State and ors.
Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge

Appearing counsel:

For the appellant(s) : None.
For the Respondents(s) : Mr. Ahtsham Bhat, GA.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal

1. In the instant Criminal Revision, the petitioner has assailed the order dated
26th August, 2017 passed by the learned Principal Sessions Judge, Reasi,
vide which respondent Nos. 3 to 5 were ordered to be enlarged on bail in
FIR No. 03/2017 dated 04th February, 2017 under Sections 366, 376,
382/343 RPC registered by the Police Station, Arnas.

2. The case of the petitioner is that a criminal complaint came to be lodged
by the petitioner before Police Station Arnas, District Reasi, stating therein
that she was kidnapped on 10th January, 2017 by (i) Manzoor Ahmed, S/o
Mohd. Shafi, (ii) Mushtaq Ahmed S/o Jameel Ahmed, (iii) Saddam
Hussain S/o Hakim Din and (iv) Mohd Iqbal S/o Farid Ahmed; that
aforementioned persons had kept her in illegal confinement in the MARG
(Narkote Jungle) in a house, where the petitioner was raped by the accused,
i.e., private respondents herein. Accordingly, the aforesaid FIR came to be
registered on the basis of Complaint filed by the petitioner in the Police
Station, Arnas. Thereafter, the petitioner was taken by the Police before
the learned Trial Court, i.e., the Court of learned Judicial Magistrate First
Class, Reasi, for recording her statement in terms of Section 164-A Cr.
P.C. Since the petitioner had filed a Complaint before the Police Station,

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Arnas, in respect of her kidnapping by the aforementioned persons and she
having been raped as well by the respondent Nos. 3 to 5, the learned Trial
Court, was in terms of Section 164-A Cr.P.C required to determine the true
and correct facts from the complainant/petitioner herein in this behalf.

3. The statement of the prosecutrix was required to be recorded in the
backdrop of the Complaint filed by her with the police and on the basis of
which, the aforesaid FIR came to be registered by the Police Station, Arnas
under the aforesaid Sections.

4. The recording of the statement under Section 164-A Cr.P.C cannot be
permitted to be a hollow exercise, particularly, once the statement is
recorded by the village girl not knowing the niceties of law. In fact, more
particularly, the learned Trial Court was required to specifically mention as
to whether she had been kidnapped or raped by the aforementioned
persons. The perusal of the statement of the learned Trial Court in terms of
Section 164-A Cr.P.C nowhere mention that any such question came to be
put to the prosecutrix/petitioner herein by the learned Trial Court and thus,
very serious snag crept in, in the aforementioned statement. Accordingly,
for re-recording the statement of the prosecutrix/petitioner herein afresh in
terms of Section 164-A Cr.P.C, an application came to be preferred before
the learned Trial Court, which came to be dismissed by the learned Trial
Court.

5. It is submitted that perusal of the said statement inter alia provides that the
prosecutrix had stated that “Jabardasti” had been done with her; that the
petitioner being a village girl, unmindful of the niceties of law and the
requirements of recording the statement in terms of Section 164-A Cr. P.C
stated the expression “Jabardasti”. For the redressal of the grievances of
the petitioner, for re-recording of her statement in terms of Section 164-A
Cr.P.C and for directing the respondents to investigate the case, i.e., the
aforesaid FIR, registered under the aforesaid Sections by the Police

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Station, Arnas, a petition titled, “Sakida Begum Vs. State of Jammu
and Kashmir and ors. ” came to be filed before this Court in terms of
petition under Section 561-A Cr.P.C, which is at present pending disposal.
The aforementioned matter came to be registered as petition under Section
561-A Cr.P.C No. 94/2017.

6. It is further stated that after hearing the learned counsel for the petitioner
and in view of the law that governed the subject matter of the
aforementioned petition, the Hon’ble Court was pleased to pass an order
dated 22nd February, 2017 providing inter alia that the case was required to
be investigated by the Investigating Agency in terms of Section 376 RPC
as well as to investigate into the aspect of alleged commission of offence
under Section 376 RPC. Subsequently, it appears that a Challan has been
filed before the learned Trial Court, i.e., the Court of learned Principal
Sessions Judge, Reasi, where an application came to be filed by the
respondent Nos. 3 to 5 for the grant of bail to them. It is submitted that
before the learned Trial Court, the prosecutrix has already recorded her
statement in detail in the Challan.

7. That an order came to be passed by the learned Trial Court, i.e., the Court
of learned Principal Sessions Judge, Jammu dated 26th August, 2017,
enlarging respondent Nos. 3 to 5 on bail despite the statement recorded by
the petitioner, stating firmly that she had been raped by respondent Nos. 3
to 5.

8. I have considered the grounds raised in the instant petition. I have also
gone through the concluding para of the aforesaid order of the Principal
Sessions Judge, Reasi, which reads as under:-

“It is now well settled by a catena of decisions of this Court that
the power to grant bail is not to be exercised, as if the punishment
before trial is being imposed. The only material considerations in
such a situation are whether the accused persons would be readily
available for their trial and whether they are likely to abuse the
discretion granted in their favour by tampering with evidence. In
such circumstances, keeping the accused persons except Mohd.
Iqbal in custody will not serve any useful puspose, as it will

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amount to pre-trial punishment. The accused are the residents of
the State of JK. Their presence in the Court for trial can be
secured by imposing reasonable conditions to eliminate the
chances of fleeing from justice. Accordingly, the accused persons,
namely, Manzoor Ahmed, Mushtaq Ahmed and Sudam Hussain
are ordered to be released on interim bail, if they furnish personal
bond of Rs. 50,000/- each and with one surety bond of the like
amount with the condition that they shall remain present in the
Court during trial and shall not threaten/influence the prosecution
witness and further, they shall not leave the State of Jammu and
Kashmir without seeking prior permission from this Court.”

9. From the perusal of the concluding para of the aforesaid judgment, it is
evident that respondents had been enlarged on interim bail, revision against
interim bail is not maintainable, because petitioner has right to oppose the
bail before court below; even otherwise once a bail is granted, judicial
propriety demands that, petitioner/victim is required to file a petition for
cancellation of bail at first instance before court below. Hence, this petition
is dismissed at this stage, with liberty to petitioner to approach before court
below to oppose the interim bail by filing objections and if interim bail has
been made absolute, then petitioner has liberty to file application for
cancellation of bail. If any such application is filed by the petitioner, the
same shall be considered by court below expeditiously.

(Sanjay Kumar Gupta
Judge
Jammu,
24.11.2017
Ram Krishan

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