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Angat Kumar vs State And Ors. on 14 December, 2018

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

CRR No. 40/2018
Dated of order: 14.12.2018
Angat Kumar Vs State of JK and ors.
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For Petitioner(s) : Mr. I. H. Bhat, Advocate
For respondent (s) : Mr. Suneel Malhotra, GA
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.

1. The instant Cr. Revision Petition is directed against the order dated
11.08.2018 passed by 3rd Addl. Sessions Judge Jammu (Fast Track
Court) in bail application bearing File No.78/Misc. titled Angat Kumar
vs. State and ors.

2. The case of the petitioner is that he has been falsely implicated in a false
and frivolous case FIR No.183/2013 registered by respondent no. 3 for
commission of offence under Sections 376-C/109 RPC and he is in
custody since 4th September 2013. It is stated that after the completion of
the investigation, the special investigation team filed challan in the Court
against the eight accused, and the trial Court has discharged six accused
persons and framed charges against two accused persons, namely, Surjeet
Kumar and the petitioner-Angat Kumar, both are Chokidars, vide its
order dated 24.07.2014 and the prosecution was directed to lead
evidence. It is further stated that prosecution has cited 51 prosecution
witnesses in the challan which fact is clear from the list of the
prosecution witnesses attached with the challan and till date after framing

CRR No. 40/2018 Page 1 of 7
of charge out of 51 cited witnesses, the statement of one witness who
happens to be the complainant in the case, namely, Arti Mahajan, was
recorded in part on 16.05.2015 and was deferred for want of original
complaint which is missing in the challan and 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. It is further stated that the
witness which has been examined so far by the prosecution has not
supported the prosecution case. Further that the petitioner as well as
accused Surjeet Kumar filed application for grant of bail before the trial
Court, but the Court below vide order dated 04.11.2016, has rejected the
bail application of the petitioner, however, the trial court accepted the
bail application of the co-accused, namely, Surjeet Kumar. It is
contended that both the petitioner and the accused Surjeet Kumar were
charged under same Section by the trial court.

3. Learned counsel for the petitioner states that the petitioner filed a bail
application bearing B.A. No.43/2017 titled Angat Kumar versus State
and others before this Court, which was finally disposed of on
03.07.2018. It is stated that petitioner filed bail application in compliance
of the above said order before the trial court, but the same was also
dismissed by the trial court on 11.08.2018.

4. The petitioner is aggrieved of the order dated 11.08.2018 and challenged
the same on the following grounds:

a). That, the trial court has appreciated the evidence as a
whole but has picked up only sentence of thestatements the
statement of PW. Arti is not complete andhas been deferred.
There is nothing criminating against the petitioner in the
statements of the witnesses if reached in totality.

b) That it is further submitted that the applicant and the co-
accused Surjeet Kumar was charged under the same Sections
by the trial court and the trial court has grantedbail to the co-

CRR No. 40/2018 Page 2 of 7

accused and denied bail to the applicant. It is further
submitted that the rule of parity demands that theapplicant is
also entitled to bail as is granted to the co-accused Surjeet
Kumar. Therefore the applicant alsodeserves to be enlarged on
bail on the ground of rule ofparity.

c) That the applicant is in custody since 4th September,
2013and till date only 13 witnesses have been examined by
theprosecution despite the fact that the trial court has fixed
numerous calendars and date of hearing as well, but
theprosecution on most of the calendars failed to produce
theprosecution witness and, therefore, the prosecution is
onlyliable for delay in the trial and still about 40 witnesses are
tobe examined by the prosecution and from the perusal it
isclear that it will take decades to complete the trial and,
therefore, the fundamental rights of the applicant to
speedytrial is also in fingered and therefore the petitioner is
alsoentitled to bail on the ground of delay in trial.

d) That the applicant is also entitled to be enlarged on bail on
the ground that denial of bail at this stage will amount to
punishment before the conclusion of the trial which is against
the well settled principal of law and justice and therefore the
applicant is also entitled to the concession
of bail.

e) That all the witnesses whose statements have been recorded
by the Hon’ble court are almost hostile and furthermore the
original complainant has not been produced by the
prosecution since three years.

5. In support of his contention, learned counsel for the petitioner relies upon
decisions of the Hon’ble Supreme Court reported in (2006) 1 SCC (Cri)
356 titled Jagan Alias Jagan Nath vs. State of Haryana; and (2017)
AIR (SC) 1464, Jalbir Singh vs. State of Haryana.

6. Respondents have filed objections. The stand taken in the objections is
that the accused, namely, Angat Kumar is involved in a heinous offence
under Section 376-C/109 RPC. The accused has committed the offences
against the deaf and dumb girl of Home for Mentally Retarded Children
at Channi Himmat, Jammu. It is averred in the objections that if the
concession of bail is granted, the accused who is habitual law offender
may run away from the prosecution and may attempt to tamper with the
prosecution evidence as all the witnesses are known to him.

CRR No. 40/2018 Page 3 of 7

7. The further stand taken by the respondents is that the prosecution has
already examined some of the witnesses out of list of witnesses and all
the witnesses have supported the case of the prosecution, moreover, at
this stage the appreciation of prosecution evidence is not required. It is
stated that in view of the strong evidence and their restrictions as per the
Provisions as per Section 497-C Cr.P.C, bail may not be granted; that the
accused had filed a bail application which was rejected and thereafter,
the accused filed another bail application bearing No. 43/2017 before this
Court, and the same was disposed with a direction to the petitioner to
move a fresh bail application before the Trial court and the Trial Court
shall pass fresh orders, taking additional grounds and change of
circumstances into the consideration. Thereafter, the petitioner on
07.07.2018 filed a fresh bail application without narrating any change of
circumstances. The learned Trial Court below after appreciating the law
viz Haji Mohd. Jaffer Ors Vs State of JK reported as 2014 (1)
(SLJ) 361, rejected the bail application.

8. It is further stated in the objections that the accused/petitioner has failed
to urge and state as to how the order impugned is bad in law except
making a bald accusation, therefore, the present Revision Petition is
devoid of any merit and law; that the Apex Court of India has underlined
the guidelines for criminal court of the country and laid down principles
to be taken into consideration at the time of grant of bail. These
principles have been embodied in Kalyan Chandra Sankar Vs. Rajesh
Ranjan alias Papu Yadav and another (2005) 7 SCC 528; all these
guidelines have been distilled in a recent judgment of Hon’ble Supreme
Court in Jayendra Sarswati Swamigal Vs. Tamil Nadu AIR 2006 (SC)
716; and basically these are the nature and seriousness of the offences,
character of evidence, circumstances which are peculiar to the accused,
reasonable possibility of the presence of the accused not being secured at

CRR No. 40/2018 Page 4 of 7
the trial, reasonable apprehension of the witnesses being tampered with
the above all, larger interest of the public or the State and other similar
factor which may be relevant in the facts and circumstances of each case.
The Hon’ble Supreme Court has laid down proposition of law regarding
successive bail application that an accused has a right to make successive
applications for grant of bail and the court entertaining such subsequent
bail application has a duty to consider the reasons and grounds on which
the earlier bail applications were rejected and in such cases the Court has
a duty to record what are the fresh grounds which persuade the court to
take a view different from the one taken in the earlier application.

9. I have considered the rival contentions of parties. Accusation against
accused petitioner is that the prosecutrix being the minor 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 11.07.2013 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 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. After

CRR No. 40/2018 Page 5 of 7
completion of investigation, challan was produced and except petitioner
and one Surjeet Kumar, all others namely 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 has been charge sheeted u/s 376(2)(c) RPC on
24.7.2014; Offence under section 376 (2)(c) RPC is punishable with
minimum ten years and may extend to life imprisonment. Allegations are
serious in nature. Section 497-C Cr.P.C reads as under:-

“497-C. Special provision regarding bail in certain offences against
women etc.- (1) Notwithstanding anything contained in this Code no
person accused of an offence punishable under Sections 304-B, 326A, 370,
376, 376A, 376C, 376D, or 376-E of Ranbir Penal Code, shall if in
custody, be released on bail or on his own bond unless the Public
Prosecutor has been given an opportunity of being heard on the
application for such release;

Provided that such accused person shall not be released on bail or
on his own bond if the Court, on a perusal of the case diary or the report
made under Section 173 of the Code, is of the opinion that there are
reasonable grounds for believing that the accusation against such person
is prima facie true.

(2) The restrictions on granting of bail specified in sub-section (1)
shall be in addition to the restrictions under the Code or any other law
for the time being in force on granting of bail.
(3) Nothing in Section 497A of the Code shall apply in relation to any
case involving the arrest of any person accused of having committed an
offence specified in sub-section (1)”.

10. From bare perusal of this section, it is evident that Court shall not grant
bail to accused, when it appears that there is prima facie case against
accused. In present case, from bare perusal of allegations and other
evidence produced so far by prosecution as mentioned in order
impugned, it is evident that victims have categorically stated against the
accused persons. The ground taken that other co accused has already
been enlarged on bail, is not plausible ground to grant the bail to
petitioner herein in such heinous offence. The offences against minor
girls are increasing day by day; petitioner being custodian of deaf and
dumb girls living in Home for mentally retarded children at Channi

CRR No. 40/2018 Page 6 of 7
Himmat, Jammu, have sexually abused them; it is a sin for which even
God will not forgive the petitioner. Victims were just like his daughters;
even then he has not spared them. The act of accused has shaken the
conscious of general public at large. The punishment provided for
offence charged is minimum ten years, which may extend to life
imprisonment. My conscious does not allow for granting bail to
petitioner in such like offences. The law cited by counsel for petitioner
is not applicable in present set of case.

11. In view of above, this petition is dismissed as order of court below does
not suffer from any illegality.

(Sanjay Kumar Gupta)
Judge
Jammu
14.12.2018
Bir

CRR No. 40/2018 Page 7 of 7

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