HIGH COURT OF JAMMU AND KASHMIR
B.A No. 87/2018
Date of Order: 29.10.2018.
Mudasir Ahmad Lone
State of JK through SHO, P/s Bandipora.
Hon’ble Mr Justice Rashid Ali Dar, Judge.
For the Petitioner(s): Petitioner present in person.
For the Respondent(s): Mr. Usman Gani, GA
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
1. The applicant/accused herein had approached the Learned Principal
Sessions Judge, Banidpora, for his release on bail in FIR No. 42/2018,
registered at Police Station Bandipora under section 376 RPC. It appears
from the perusal of the order passed by the Learned Principal Sessions
Judge, that the applicant/accused herein had been arrested on the charge
of commission of offences under Section 376 RPC, after case was
registered on 16.03.2018 against him. It had been stated by the
prosecutrix in the report filed with police that the applicant/accused had
promised to marry her and had taken her to the house of his relatives and
friends. Under the promise of marriage, had sexual intercourse with her
repeatedly. Resultantly she became pregnant after the sexual intercourse
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with the accused/applicant had been also alleged by her. The said Court
after hearing the parties and taking note of the seriousness of the charge,
dismissed the bail application.
2. Thereafter the applicant/accused approached this Court for his
admission on bail while pleading that
i. The charge sheet stands already presented before the Ld. Sessions
Judge Bandipora who has rejected his application on 1.6.2018.
ii. The accused/applicant has been languishing in the jail for the last
2 ½ months as he has been arrested on 16.03.2018.
iii. The evidence recorded by the I/O concerned is very fragile and
not convincing to delay the confinement of the applicant/accused
iv. The prosecutrix/complainant in her statement U/s 164-A CrPC
has categorically stated that she had a love affair with the
applicant/accused for the last four years and in the process they
had a physical relation also. She has further stated in her
statement that she is married to the applicant/accused as they both
have performed the Nikkah. Further it is stated in the application
that the Medical record submitted by the I/O along with the
charge sheet suggests ambiguity as the application /docket writen
by the I/O concerned to the Medical officer indicates the name of
some Mst. Shameema Bano D/o Amirudin and the medical
certificate post approval of the application/ docket by the medical
officer shows examination of the complainant/prosecutrix.
v. The other witnesses of the charge sheet do not support of the case
of the prosecution as they have admitted in their testimonies that
the prosecutrix was having an affair with the application which
ultimately led to their physical intimacy. The
complainant/prosecutrix in her statement before the Magistrate
recorded under section 164 -A CrPC clearly states that she is the
B.A. No. 87/2018 Page 2 of 5
legally wedded wife of the application, therefore, nullifies the
case of the prosecution/ State under section 376 RPC.
3. In the objections, respondents have submitted that a case was registered
against the applicant/accused in Police Station Bandipora on 16.03.2018
at the instance of one, who had alleged that the applicant/accused had
promised her to marry and thereafter he took her to the houses of his
relatives and friends. In the objections the allegations, supra have been
repeated. The conclusion of the investigation is stated to have led to
framing of the opinion of the commission of the offence U/s 376 RPC
and a charge filed against the petitioner in the Court.
4. This Court in terms of order passed on 27.6.2018, while examining the
successive bail applications, the nature of the power vested with the
High Court and the Sessions Court for grant of bail, the object behind
the grant of bail and the manner in which discretion is to be exercised,
admitted the petitioner to interim bail. Notice of the fact was also taken
that the applicant/accused was languishing in the jail for the past few
months along with the fact that the prosecutrix had contracted marriage
with the applicant/accused.
5. MP No. 01/2018 was filed by the prosecutrix on 27.07.2018 wherein
she has prayed that she be allowed to intervene in the matter having
regard with the fact that she is the victim in the case. It is also stated that
the offence in which the applicant/accused is involved is grave.
6. Mr. Usman Gani, learned Government Advocate, has been heard. The
applicant/accused who is present in Court has also been heard. The
prosecutrix who is also present in the Court made also certain
submissions. She contended that the applicant/accused should restore
her dignity and honour by taking her to his house as his legally wedded
wife as she had been promised by the applicant/accused would be given
the status of a legally wedded wife. No other offences has been
projected. The learned Government Advocate has conceded that the
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learned Principal Sessions Judge, is seized of the matter and the trial has
been initiated after submission of final report before the said Court.
7. Considered the submissions and have gone through the material before
me. The order passed on 27.06.2018 in terms of which the
applicant/accused has been admitted to interim bail by a co-ordinate
Bench recites as:-
The statement of the prosecutrix recorded under Section 164-A CrPC
which forms a part of the file is that the prosecutrix has contracted the
marriage with the petitioner and she has expressed the desire to live with
her husband. She has also stated that she indulged in sexual intercourse
with the petitioner on his assertion that he will marry her meaning thereby
that the act was consensual and to crown it all she has stated that they have
already performed the marriage.
Taking into consideration the statement of the prosecutrix and the fact that
the petitioner has undergone long incarceration, the petitioner is admitted
to bail in FIR No. 42/2018 registered against him in police Station
Bandipora. He shall execute a personal bond to the tune of Rs. 50,000/-
with a surety of the like amount before the In-charge jail wherever he is
lodged at the moment. The petitioner shall not tamper with the prosecution
evidence and shall produce himself before the Investigating Officer if and
when he is directed to do so. This order shall remain in force till next date
of listing before the Bench.
8. After the passing of the order referred above, nothing has been
submitted on behalf of the concerned investigating agency wherefrom
any inference can be drawn that the concession granted in favour of the
applicant/accused has been misused by him or otherwise, there are any
impelling reasons for a withdrawal of the concession granted earlier.
The prosecutrix too has not in terms of MP No.1 referred herein above
submitted anything which could point out that the relief granted in
favour of the applicant/accused was misused by him. Seriousness of
charge has already been given a proper thought at the time when interim
bail was granted and it cannot be recalled now.
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9. Accordingly, the order passed on 27.06.2018 is made absolute. The
applicant/accused shall not leave the territorial limits of the Kashmir
Valley without the prior permission of the Court. He shall not tamper
with the prosecution evidence and shall appear before the Court, on each
and every date of hearing.
10. The prosecution is left at liberty to move this Court in case the need
arises for re-visitation of the concession granted in favour of
petitioner/accused, or if any ground under law is available for
cancellation of bail. It may also need to be clarified that nothing herein
shall be treated by the trial Court as a handicap for passing any order
permissible under law, if the circumstances, so warrant concession
granted herein having been misused or the course of justice thwarted.
11. Disposed of along with connected MP(s).
(Rashid Ali Dar)
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