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Aijaz Ahmad Malla vs State Of J&K; And Others on 24 July, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
BA No. 89/2018
IA No. 01/2018
Date of Order: 24.07.2018
Aijaz Ahmad Malla
Vs.
State of JK and Others
Coram:
Hon’ble Mr Justice M. K. Hanjura, Judge
Appearance:

For petitioner(s): Mr Sheikh Feroz, Advocate
For respondent(s): Mr Irfan Andleeb, Dy. AG
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?

1. Dissatisfied with the order of the learned Principal District and Sessions, Judge,

Ganderbal, passed in an application for the grant of bail in case bearing FIR No.

30/2017, registered at Police Station Lar, for the commission of offences under

Sections 363 and 376 RPC, the accused-Aijaz Ahmad Malla has knocked at the

doors of this Court seeking bail in his favour.

2. What comes to the fore from the perusal of the material on record is that a

charge sheet in terms of Section 173 Cr. PC has been laid against the accused

before the competent Court in which the trial has commenced. The contention

of the applicant as propounded by him in his application is that a false and

frivolous case has been registered against him. He is innocent and has not

committed any offence. He is languishing in the jail for the last more than seven

months by now. The evidence recorded during the trial of the case does not

BA No. 89/2018 Page 1 of 6
connect him with the commission of the crime imputed to him and, therefore,

there are no reasonable grounds to believe that the applicant is guilty of the

commission of the offences attributed to him. He has deep roots in the society.

He will not flee from justice, in case he is admitted to bail and above all that the

prosecutrix is the married wife of the applicant, as gets revealed from the

perusal of the Nikah Nama attached to the application..

3. In the status report filed by the State, it has been pleaded that the offences under

Sections 363 376 RPC, having been established against the applicant, a

charge sheet has been laid against him in the Court of law.

4. Heard and considered.

5. The order of the learned Principal District and Sessions Judge, Ganderbal, does

not call for any interference. It is based on law, logic and reason. It is lucid and

luminous. The learned Principal District and Sessions Judge, Ganderbal, has

touched all the aspects of the matter, where after he has come to the conclusion

that the applicant does not deserve to be admitted to bail, taking into

consideration the gravity of the offences levelled against him and the

application of the rigor of Section 497-C (1) of the Code of Criminal Procedure

to his case, buttressed with the other requirements. The learned Principal

District and Sessions Judge, Ganderbal, has held that the Court has already

proceeded to frame the charge against the accused for the commission of an

offence under Section 363 and 376 RPC, which makes it manifestly clear that in

the opinion of the Court a prima-facie case is made out against the accused in

BA No. 89/2018 Page 2 of 6
which he has been put to trial. He has proceeded to hold that in a case under

Section 363 and 376 RPC, the statement of the prosecutrix is of paramount

importance/consideration and a conviction can be sustained on the sole

statement of the prosecutrix, in case it breeds confidence in the eyes of a

reasonable and prudent man. He has further held that although elaborate

documentation is not required to be made in the bail applications, lest it may not

prejudice the case of either party yet the Court is duty bound to find out whether

there is a semblance of truthfulness in the allegations levelled against the

accused. He has also stated that the offence of rape is heinous and horrid which

not only wrecks and ruins the victim but also shatters and rattles the conscience

of the general public and, therefore, taking into consideration the societal

concerns, it will not be proper for this Court to allow the application at this

stage. The learned trial Court has further held that the accused to whom the

concession of bail has been accorded was found involved in the commission of

offences under Section 363 376 RPC, while as, the applicant is involved in

and facing trial for the commission of offences under Sections 363 376 and,

therefore, the ground of parity as urged by the applicant is devoid of any merit

and substance.

6. The prosecutrix was a minor on the date of the alleged occurrence. The

contention of the applicant is that she is his married and wedded wife. The

statement of the prosecutrix recorded by the Court on 26th November, 2017 is a

sequel to the fact that she was forcibly kidnapped by the accused from the

BA No. 89/2018 Page 3 of 6
custody of his father and thereafter taken to different places including Jammu

and during this period she was repeatedly raped by the accused. On the face of

such a statement, the contention of the applicant appears to be misplaced.

However, it is within the domain and power of the trial Court to evaluate and

assess the evidence on record to find out the credibility of this argument.

7. The law is that the Court has to exercise the discretion in the matter of the grant

of bail on the established principles of law and not in derogation to them.

Discretion has to be guided by law, duly governed by rule and cannot be

arbitrary, fanciful or vague. The Court must not yield to the spasmodic

sentiment to unregulated benevolence. The judicial discretion of judge must be

exercised not in opposition to, but in accordance with the established principle

of law. Hon’ble Mr. Justice Krishna Ayar in the case of “Gudikanti

Narasimhulu and Others v Public Prosecutor, High Court of A.P”., reported

in 1978 AIR,, Supreme Court 429, while dealing with this aspect held that

Vesting of discretion is the unspoken but inescapable, silent command of our

judicial system, and those who exercise it will remember that discretion, when

applied to a Court of justice, means sound discretion guided by law. It must be

governed by rule, not by humour; it must not be arbitrary, vague and fanciful,

but legal and regular.

8. The learned Principal District and Sessions Judge, Ganderbal, has in his wisdom

found that the applicant is not entitled to bail on the set of facts involved in the

case. He has exercised the discretion on the sound principles of law after taking

BA No. 89/2018 Page 4 of 6
into consideration a variety of factors which weighed against the applicant, that

are, the gravity of the offences with which the accused has been charged and the

application of the bar created under Section 497-C (1) Cr. PC to his case, more

particularly the age of the prosecutrix and on the strength of these grounds the

bail application has been rejected. The statement of the prosecutrix placed on

record by the applicant also points towards the guilt of the accused and knocks

the bottom out of his contention that the prosecution has manufactured and

maneuvered a case against him.

9. Looking at the instant application from yet another angle, the learned Principal

District and Sessions Judge, Ganderbal, rejected the application of the applicant

by his order dated 14.05.2018. The accused filed the application for bail before

this Court on 07.06.2018, i.e. after twenty three days. There has been absolutely

no change in the circumstances of the case from the date of the order of the trial

Court till such time that the bail application has been moved before this Court.

It is well settled law that no successive application for bail can be

allowed/entertained unless and until there has been a 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 peep deep to see

whether there has been any perceptible 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 applicant in moving another application on a subsequent

BA No. 89/2018 Page 5 of 6
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 for bail. There is no legal bar in entertaining

the subsequent 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 on hand.

10. In view of the preceding analysis, there appears to be no merit and substance in

the application of the applicant. The same entails dismissal and is, accordingly,

dismissed.

11. A copy of this order shall be sent to the learned trial Court for information.

(M. K. Hanjura)
Judge
Srinagar
24.07.2018
“Manzoor”

BA No. 89/2018 Page 6 of 6

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