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Angat Kumar vs State And Anr. on 3 July, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

Case: B.A. No.43/2017
Date of Decision: 03.07.2018

Angat Kumar Vs. State of Jammu and Kashmir another

Coram:
Hon’ble Mr. Justice Sanjay Kumar Gupta

Appearing counsel:

For petitioner(s) : Mr. I. H. Bhat, Advocate.
For respondent(s) : Mr. Sanjeev Padha, Govt. Advocate.

i/ Whether to be reported in Yes/No
Press/Media?

ii/ Whether to be reported in Yes/No
Digest/Journal?

1. Through the medium of instant application, petitioner-Angat
Kumar prays for his release on bail in case FIR
No.183/2013 registered under Section 376-C/109 RPC with
Police Station Bahu Fort, Jammu.

2. Petitioner through counsel has stated in his petition that the
petitioner has been falsely implicated in false and frivolous
case registered vide FIR No.183/2013 under Section
376(2)(C)/109 RPC. After completion of investigation, the
Special Investigating Team filed challan in the Court of law
which is pending in the Court of learned 3 rd Additional
District and Sessions Judge, Jammu. It is further submitted
that the trial Court has discharged six accused persons and

B.A. No.43/2017 Page 1 of 7
framed charges against two accused persons namely Surjeet
Kumar and the petitioner-Angat Kumar vide order dated
24.07.2014 and the prosecution was directed to lead
evidence.

3. Learned counsel further submitted that the prosecution has
cited 51 prosecution witnesses in the challan and out of 51
witnesses, statements of 13 witnesses have been recorded.
The statement of the complainant-Arti Mahajan was
recorded in-part on 16.05.2015 and was deferred for want of
original complaint with the challan at the request of the
Special Public Prosecutor but till date neither the original
complaint was placed on record before the trial Court by the
prosecution nor the statement of the complainant was
concluded. The witnesses examined so far by the prosecution
have not supported the prosecution case. It is submitted that
the petitioner as well as accused-Surjeet Kumar filed
applications for grant of bail before the Court below. Court
below vide order 04.11.2016 rejected the bail application of
the petitioner but accepted the bail application of the co-
accused Surjeet Kumar. Learned counsel also submitted that
the petitioner and co-accused Surjeet Kumar were charged
for the same offences by the trial Court, but granted bail to
the co-accused and denied bail to the petitioner. He
submitted that the rule of parity demands that the petitioner
is also entitle to bail as is granted to the co-accused Surjeet
Kumar.

B.A. No.43/2017 Page 2 of 7

4. Learned counsel submitted that the petitioner is in custody
w.e.f. 04.09.2013 and till date only 13 witnesses have been
examined by the prosecution in-spite of the fact that the trial
Court has fixed numerous calendars and dates of hearing as
well, but the prosecution failed to produce the prosecution
witness and therefore the prosecution is only liable for delay
in the trial and since about 40 witnesses are still to examine
by the prosecution and the pace in which the prosecution is
producing witnesses, it will take decades to complete the
trial. The fundamental right of the petitioner to speedy trial
is also infringed and therefore, the petitioner is also entitled
to bail on the ground of delay in trial. It is submitted that the
denial of bail at this stage will amount to punishment before
conclusion of trial which is against the well settled principles
of law. The petitioner cannot be punished without giving him
fair opportunity to defend the case properly which he cannot
do while in custody and therefore, further detention of the
petitioner will be against the mandate of Article 21 of the
Constitution. It is stated that there is no likelihood of or
otherwise of the petitioner absconding or attempting to
temper with the prosecution evidence, therefore, the
petitioner is entitle to bail.

5. On the basis of submissions made above, learned counsel
seeks release of petitioner on bail.

6. Objections stand filed on behalf of respondents opposing the
bail application stating therein that petitioner has been

B.A. No.43/2017 Page 3 of 7
rightly arrested in the case in accordance with the procedure
established by law and is presently facing trial in FIR
No.183/2013 registered with Police Station Bahu Fort under
Section 376(2)(C) and 109 RPC. There is incriminating
evidence against the petitioner to connect him with the crime
he has committed. The petitioner is not entitle to the
concession of bail as per the statutory law and he is
languishing in jail in accordance with the procedure
established by law. Those who are unruly and wayward
having no respect for law of the land and right of the other
fellow human beings, cannot seek indulgence of the Court
for enforcement of their own rights, as such instant
application does not merit consideration and needs outright
rejection. The interest of the society and liberty of the
individual has to be balanced. The case in hand is a fit one
where collective interest of the community outweighs the
right of the personal liberty of the petitioner and granting of
the bail impede not only the administration of justice but also
is going to injure the public interest rather than to serve it, as
such the instant application deserves to be rejected on this
count also.

7. The petitioner is involved in gang rape upon mentally
retarded girls residing in Home for Mentally Retarted
Children, Channi Himmat, Jammu. The petitioner has, thus,
committed a heinous crime and deserves to be tried and
convicted. Moreover, evidence led by the prosecution at this

B.A. No.43/2017 Page 4 of 7
stage cannot be appreciated as material witnesses are yet to
be examined in the said case and they may improve their
statements in support of the prosecution case. There is no
reason to say that the petitioner has not committed the
offence for which he is charged. Lastly, it is prayed that the
application of the petitioner for grant of bail may kindly be
dismissed at this stage being pre mature.

8. Heard learned counsel for the petitioner as well as learned
State Counsel and considered the law on the subject.

9. From the perusal of trial Court file, it is evident that the
prosecutrix being the minors girls who were inmates of
HOME at the hands of petitioner and others were made to
sexually abused. This matter was referred to District
Magistrate, Jammu, who on 11.7.2013 constituted a five
members Committee headed by IAS Sushma Chauhan.
There after a report was submitted by Committee on
27.8.2013 in two parts. One part was containing general
conditions of HOME and second part was containing sexual
ravishment of five mentally retarded girls. The said report
was forwarded to SSP Jammu and FIR under section 376
was registered in Police Station Bahu Fort and SIT was
constituted which was headed by Rameshwer Singh, SP,
City South, Jammu. During investigation five girls were
examined by Board of Doctors (Gynecologist) on
09.09.2013. Detailed Investigation was conducted. It was
found that five mentally retarded victims, two of them deaf

B.A. No.43/2017 Page 5 of 7
and dumb, all with below average intelligence, were
subjected to sexual abuse from time to time in the Home by
the petitioner, who was CHOWKIDAR and another (former
Chowkidar) of said Home. It was also found that one victim
was got pregnant and matter was brought to the knowledge
of official of home, but all of them got the pregnancy abort
with the help of Doctors at Astha Nursing Home, Ambphala.

10. After completion of investigation, challan was produced and
except petitioner and one Surjeet Kumar, all other Girdhari
Lal Koul, Principal; Rajinder Kapoor, Secretary; P.N. Dubey
Member; Ravi Dubey, President of Managing Committee of
HOME; Dr. Raman Sharma and Dr. Raj Sharma, proprietor
of Astha Nursing Home were discharged. Accused-
Petitioner and Surjeet Kumar have been charge sheeted u/s
376(2) (c) RPC on 24.7.2014; on 4.11.2016 Surjeet Kumar
has been granted bail; on the same day bail petition of
present accused has been dismissed.

11. From the perusal of file, it is evident that both accused have
been charge-sheeted u/s section 376 (2) (c) RPC. Accusation
is same. Offence u/s section 376 (2)(c) RPC is punishable
with minimum ten years and may extend to life
imprisonment. Allegations are serious in nature

12. Both the accused moved two separate bail petitions, but both
have been decided on one date. On 04.11.2016 one
application for grant of bail by Surjeet Singh has been
allowed and that of petitioner has been dismissed by way of

B.A. No.43/2017 Page 6 of 7
separate order. This is not proper; judge should have passed
conjoint order. Trial court order does not show any reason
for grant of bail to one accused and rejection of another,
especially, when both have been charge-sheeted on same
accusation. There should not be disparity in two orders,
when both stand filed on same grounds.

13. Further, order of rejection in bail petition of petitioner has
been passed on 4.11.2016 by trial court, now till today more
witnesses would have been examined.

14. So it would be appropriate for petitioner to move fresh
application for bail before trial court, who shall pass fresh
order keeping in view the fact that other co-accused person
has been granted bail on same grounds. Petitioner can also
take additional grounds due to change of circumstances.
Trial court shall also consider law on the subject.

15. This petition is disposed of accordingly without commenting
on merit of petition.

( Sanjay Kumar Gupta )
Judge

Jammu
03.07.2018
*Narinder*

B.A. No.43/2017 Page 7 of 7

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