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Rajesh Kumar Abrol vs State Of J And K And Others on 19 February, 2018


Bail Application No. 12/2018, MP No. 01/2018

Date of decision: .02.2018
Rajesh Kumar Abrol vs. State of JK and others
Hon’ble Mr. Justice M. K. Hanjura, Judge

For petitioner (s) : Mr. Sunil Sethi, Senior Advocate with
Mr. Aseem Sawhney, Advocate.
For Respondent(s) : Mr. Sanjeev Padha, Government Advocate

Ms. Deepika Singh Rajawat, Advocate.

i/ Whether to be reported in Press/Media? : Yes/No
ii/ Whether to be reported in Digest/Journal? : Yes/No

By order dated 30.01.2018, the learned 3rd Additional Sessions Judge (Fast
Track Court), Jammu, rejected the application of the applicant/accused, namely,
Rajesh Kumar Abrol S/o Late I. D. Abrol R/o 136/2, Roop Nagar, Jammu (at
present lodged in District Jail, Jammu), for admitting him to bail in FIR
No.06/2018, registered at Police Station, Janipur, for the commission of offences
under sections 376 and 420 RPC, primarily, on the grounds that the petitioner,
who is a Judicial Officer, should have avowed to the principles of judicial ethics
and should have avouched to the cautions that need to be taken while occupying
the divine chair of justice; that Section 497-C of the Code of Criminal Procedure
is a fetter which prevents the Court to enlarge on bail a person accused of an
offence of rape. Not only this, the learned trial Court has also opined that the
offence of rape imputed to the petitioner is a serious one and any person, who is,
prima facie, found to have committed rape, is not entitled to the concession of bail
and above all that the investigation of the case is at the threshold.

The petitioner has moved, dissatisfied with the order of the learned trial
Court, another application wherein he has sought the indulgence of this Court in

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releasing him on bail for the aforesaid offence. In order to have a better
understanding of the matter in controversy, it would be profitable to give a brief
narration of the facts/grounds urged by the petitioner in the petition. At the outset,
the petitioner has given a resume of how and in what manner he came to hold the
reigns of the office of a Judicial Officer. Thereafter the petitioner has stated that
he is innocent. He has not committed any offence. A false and frivolous case has
been lodged against him. He is suffering from the disease of Cancer and has
undergone twelve cycles of Chemotherapy. God has given him an additional lease
of life and it is just by a freak of fortune that he is surviving. It has further been
stated by the petitioner that he filed an application for bail in anticipation of his
arrest before this Court which was rejected, whereafter he filed a regular bail
application before the Court of learned 3rd Additional Sessions Judge, Jammu,
which met the same fate on 30.01.2018. The petitioner has proceeded to state that
the grant of bail is the rule and its refusal is an exception, as has been held by the
Apex Court of the Country in a catena of judicial pronouncements. There is delay
in lodging the FIR. Vague and general allegations of rape have been levelled
against the petitioner in the First Information Report which is totally false and
devoid of any substance. The complainant is a married woman. Since the
petitioner did not have cordial relations with his wife, the complainant tried to
exploit his loneliness. Assuming but not admitting that the petitioner lived in a
live in relationship with the prosecutrix, the law is well settled that such an act can
at the most plunge within the definition of offences under section 493, 494 and
495 RPC but it will not fall under the purview of an offence of rape. The
consequences of pre-trial detention are grave and unless exceptional
circumstances are carved out, the Court cannot decline the grant of bail to any
person in an offence which is punishable with imprisonment of life. In the
premises, the petitioner has prayed that he be released on bail.

In the objections, the State has resisted and controverted the application of
the petitioner on the grounds, inter alia, that the application is not maintainable. It
deserves to be dismissed as there has been no substantial change in the

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circumstances of the case, from the date, the bail application of the
applicant/accused has been rejected by the trial Court till such time that the
present application has been moved by the applicant. The law laid down by the
Apex Court of the Country is that a person accused of an offence has a right to
make successive application for the grant of bail, but the Court entertaining such
an application has the duty to consider the reasons and the grounds on which the
earlier bail application has been rejected. The Court has to see and judge whether
any fresh ground has been agitated in the subsequent application that would
persuade and compel it to take a view contrary to the one accepted earlier. The
applicant/accused has committed a heinous offence. His application does not
deserve any consideration at this stage. There is a reasonable apprehension that in
case the concession of bail is extended to the applicant/accused at this stage, he
may abuse the liberty to subvert justice and threaten the prosecution witnesses. In
the end, it has been stated that taking into consideration the gravity of the
accusation, the nature of evidence and the severity of the punishment provided for
the offences levelled against the applicant/accused, the application deserves to be
rejected out rightly and accordingly, the same be dismissed to meet the ends of

Heard and considered.

The order of the 3rd Additional Sessions Judge (Fast Track Court), Jammu
is lucid and clear. It does not call for any interference. It is based on reason, logic
and the law/facts involved in the case. Elaborate documentation is not required to
be made in a petition while considering whether, or not, an accused is, or is not,
entitled to be admitted to bail. However, taking into consideration the material on
record evaluated and assessed in his order by the Learned 3rd Additional Sessions
Judge, Jammu, the prima facie involvement of the accused/petitioner in the
commission of the crime imputed to him, cannot be ruled out. The effect of the
delayed FIR on the case in hand, and the contention of the learned counsel for the
petitioner is that the consent and promiscuous attitude of the prosecutrix. The

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sexual intercourse does not vouch for the commission of rape are such issues have
to be determined by the trial Judge during the course of trial of the case and any
comment on these issue at this stage when the investigation of the case is at its
infancy is neither warranted nor justified. The trial Judge has to evaluate and
appreciate the evidence on the parameters of the law and the facts to find out
whether the prosecution case is based on the foundations of credible evidence and
whether any judicial process can be issued on such evidence.

As stated herein-before the learned Additional Sessions Judge, has rejected
the application of the petitioner for enlarging him on bail. It is well settled in law
that no successive application for bail can be allowed/entertained unless and until
there has been a perceptible change in the circumstances of the case. No doubt,
the principle of res-judicata does not have its application to the bail applications
but the Court has to ponder and see whether there has been any change in the
circumstances of the case and in case it is not found to be so the filing of a
successive application will lead to a bad precedent. An order rejecting an
application of bail would not per-se close the doors of the petitioner in moving
another application on a subsequent occasion but the condition precedent is that
there should be some fresh material and further developments in the case as will
impel and actuate the Court to consider the successive application if it is pointed
out that there has been a change of substantial nature in the facts and
circumstances of the case since the date of passing the earlier order. Nothing to
substantiate so has been stated in the application in hand.

Looking at the instant case from another perspective, Section 497-C of the
Code of Criminal Procedure, creates a bar and operates as an impediment in the
matter of releasing a person on bail under Section 376 RPC with a further
stipulation that it is only when the Court is of the opinion that the accused is
innocent and has not committed any offence, that his application for the grant of
bail can be considered. This provision is an exception to the aphorism that bail
and not jail or that grant of bail is the rule and its refusal is an exception. The

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Courts are duty bound to test the case of a person for releasing him on bail for an
offence under Section 376 RPC, rigorously on the scales of 497-C of the
Cr.P.C., irrespective of the fact whether or not it affects him adversely. The
claim of the petitioner that he is innocent and has not committed any offence can
be considered by the trial Court having due regard to the evidence adduced in
the case and the allied material on record. The claim of the prosecutrix dislodges
the claim of the petitioner that he is innocent and has not committed any offence.
The oft repeated grounds for the grant of bail on which the petitioner places
reliance do not hold good now in view of the criminal laws (Amendment) Act,
2013. The effect stands evaporated and the long held axioms enunciated therein
do not apply to matters relating to the grant of bail in an offence under Section
376 RPC.

Testing the instant application on yet another scale what cannot be lost
sight of is that the petitioner is a judicial officer. The Judicial Officers are
supposed to possess the sterling quality of integrity and integrity includes within
its fold an admirable and exquisite studying character with firm adherence to the
Code of moral values. The Apex Court in the case of Tarak Singh v/s Jyoti Basu
2005(1) SCC 2001 while rummaging through this issue held as under :

“Integrity is the hallmark of judicial discipline, apart from
others. It is high time the judiciary took utmost care to see that
the temple of justice does not crack from inside, which will lead
to a catastrophe in the judicial-delivery system resulting in the
failure of public confidence in the system. It must be
remembered that woodpeckers inside pose a larger threat than
the storm outside.”

In Udhav Singh reported in 1997(5) SCC 129 while delving on the same
subject the Supreme Court held as follows:

“…….Maintenance of discipline in the judicial service is a
paramount matter. Acceptability of the judgment depends
upon the credibility of the conduct, honesty, integrity and
character of the officer. The confidence of the litigating public
gets affected or shaken by lack of integrity and character of
Judicial Officer.”…..

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The Supreme Court in the case Shashikant S. Patil reported in 2001 (1)
SCC 416 while emphasizing the need of judicial decorum held as follows:

“Having regard to certain sporadic instances of lack of probity
and integrity among some of the personnel who man this high
office, it is high time that specific standards are set with regard
to value system to be adopted and followed by the members
serving in the temple of justice. No doubt, they are more self
imposed than imposed. While dispensing justice, the messenger
is also important as the message itself. A judge is judged not
only by the quality of his judgments, but also by the quality and
purity of his character and the measurable standard of that
character is impeccable integrity reflected transparently in his
personal life as well. One who corrects corruption should be
incorruptible. That is the high standard, the public has set in
such high offices of institutional integrity. Therefore, any
departure from the pristine codes and values of discipline and
disciplined conduct on the part of the judicial officers will have
to be viewed very seriously lest the very foundation of the
system would be shaken and, if so, that will be the death knell
of democracy………

………Honesty and integrity are the hallmarks of judicial
probity. Dishonesty and lack of integrity are hence the basic
elements of misconduct as far as a Judicial Officer is

……..We may end up this epilogue quoting from the decision of
the Supreme Court regarding the role of the High Court in
such situations, reported in High Court of Judicature Vrs.
Shashikant Patel (Supra):

“Dishonesty is the stark antithesis of judicial probity. Any
instance of a High Court condoning or compromising within a
dishonest deed of one of its officers would only be contributing
to erosion of the judicial foundation. Every hour we must
remind ourselves that the judiciary floats only over the
confidence of the people in its probity. Such confidence is the
foundation on which the pillars of the judiciary are built.”

The above dictums of law lay down the elements of judicial discipline and the
character of a judicial Officer which has to be above board under all the
circumstances. If a Judicial Officer transgresses the scales of justice the effect
would be disastrous and deleterious. The rules of conduct to be observed by a
Judicial Officer to maintain the integrity and independence of the Judiciary and to
afford the dignity of the office of Judicial Officer have been elaborated in the
large number of judicial pronouncement a few of which are quoted above. The

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petitioner has brought the institution of justice to a ridicule. The offences levelled
against the petitioner are horrid and heinous. The conduct of the judicial officer in
indulging in the activities of which he is accused makes the crime all the more
grave and the act in which he indulged cannot be equated or treated on par with
an ordinary citizen/individual. No one can be allowed to erode the faith of people
in the temple of justice. Therefore, the application for admitting the petitioner to
bail cannot be considered at this stage. It entails dismissal and is, accordingly,
dismissed with the direction that proper medical care shall be provided to the
petitioner, if and when the need arises.

(M. K. Hanjura)


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