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Shahdin vs State Of Jk & Ors. on 18 April, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Case: 561-A Cr.P.C. No.671/2017 MP No.01/2017

Date of Order:- 18.04.2018

Shahdin Vs. State and Others
Coram:
Hon’bleMr. Justice M. K. Hanjura

Appearing Counsel:
For the petitioner(s): Mr. Vishal Goel, Advocate.
For the respondent(s) : Mr.Amit Chopra, Govt. Advocate.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No

01. In this petition filed, under Section 561-A Cr.P.C., the petitioner has sought
the indulgence of this Court in quashing the order dated 21.09.2017 passed by the
learned Judicial Magistrate, Ist Class R. S. Pura, Jammu, whereby the respondent
No.3, Masooma Bibi, has been admitted to bail for the commission of offences
under Sections 363/109 RPC.

02. This case reflects a sad and a sordid state of affairs. The fences appear to
have swollen the crops. Law has been made lame by the very persons, who were
supposed to interpret, execute and implement it. It has been made to limp by
those designed and entrusted with the task of protecting the life and limb of the
citizens of the State. The learned Magistrate appears to have acted in the most
cavalier, casual and perfunctory manner in dealing with the application for
admitting Masooma Bibi to bail. The prosecuting officer, who has filed the
objections and the ASI Police Station R. S. Pura who has submitted the report in
the application for enlarging the accused/respondent No.3 to bail, have suppressed
the material facts, perhaps, deliberately in order to facilitate the exit of the
accused/respondent No.3 from the clutches of the law. All the three i.e. the

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learned Magistrate Ist Class R.S. Pura, the prosecuting officer and the ASI Police
Station R. S. Pura appear to have worked in tandem to deny Justice to a hapless
girl victimised and exploited sexually.

03. The facts are eloquent. On 14.09.2017, the accused/respondent No.3 moved
an application before the learned Magistrate Ist Class R.S. Pura for admitting her
to bail in FIR No.189/2017 of Police Station R.S. Pura for the commission of
offences under Sections 363/109 RPC, on a complaint of the petitioner that his
daughter has been kidnapped. The Assistant Sub. Inspector R. S. Pura prepared
and submitted a report before the learned Magistrate Ist Class R.S. Pura on
18.09.2017. The prosecuting officer filed his objections to the application of the
accused on 19.09.2017. The statement of the prosecutrix, (name withheld) as
envisaged and envisioned under Section 164-A Cr.P.C was recorded on
15.09.2017 by the very Magistrate, who admitted the accused/respondent No.3 to
bail by an order dated 21.09.2017, which is impugned here in this petition.

04. The prosecutrix, as is evident from her statement recorded under Section
164-A Cr.P.C. has a tale to tell. It is a tale of woe covered by the veneer of human
degradation. The statement of the prosecutrix is that she is about 15 years of age.
On 22.08.2017 at about 8:00 am, she went to the school. She left the school at
about 1330 hours for her home located at Chakrohi, Suchetgarh. However, before
she could reach her home, she spotted a vehicle, white in colour that stopped near
her. Eight to nine persons were sitting in the said vehicle. All of them, except for
the driver, alighted from the vehicle. They started beating her and her friend, who
was accompanying her at the moment. One of them was wielding a gun. They
dashed her school bag unto the ground and forcibly pushed her into the vehicle.
The man, who was armed with the gun, told her that, in case she musters the
courage to raise a hue and cry, he will put her to death. After pushing her into the
vehicle, they too boarded the vehicle. They started beating her. Only one amongst
them, i.e. Mst. Masooma Bibi, who lives in her vicinity, was known to her. She
(Mst. Masooma Bibi) along with others forced and coerced her to take water. On
consuming the same, she lost her consciousness. The inmates of the vehicle talked

561-A Cr.P.C. No.671/2017 MP No.01/2017 Page 2 of 9
to someone on phone. They told him that they will carry her (the prosecutrix) to
Punjab. It was pitch dark when the vehicle, in which she was pushed, stopped
near a forest. There was no habitation in and around the forest except for a shed
“kula.” They carried her inside the shed. Out of these persons, 4 to 5 were
women. The accused/respondent No.3 stripped her forcibly. She gave her another
set of wearing apparels. She told her that she has to solemnise the marriage with
Shokat Ali. A Moulvi was called and he performed her marriage with Shokat
Ali. During the night, Shokat Ali, Teju and Salman violated her sexually. All of
them confined her in the forest for 20 to 22 days. They would rotate their location
every day. During all these 20 to 22 days, Shokat Ali, Teju and Salman raped
her. On the 11th day of September, 2017, they forcibly took her to a Court. They
told her to make a statement there to the effect that she is in love with Shokat Ali
and wanted to marry him. They also told her that in case she does not state so, she
will be killed. Some other persons were also there, whom she can identify but
does not know them by their names. When she went inside the Court, she
narrated the entire episode to the Presiding Officer. She told him that she does
not want to marry ShokatAli and she has been brought to the Court to make a
false statement. On hearing her, the Presiding Officer of the Court summoned the
police authorities. The Police authorities took her to the Police Station along with
Shokat Ali. They interrogated them and informed the S.H.O. Police Station R.
S. Pura about their presence in the Police Station. After sometime the police
authorities of Police Station, R.S. Pura reached there along with her father and the
village Sarpanch. The police authorities of Police Station R.S. Pura entrusted her
custody to her father. Shokat Ali was taken to the police station where he was
detained. On the next day, she was subjected to medical examination in R.S. Pura
Hospital. At a time when she was kidnapped she did not know anyone amongst
these 8 to 9 persons, except for the accused/respondent No.3. However, since she
lived in their company for 20 to 22 days, therefore, she came to know them by
their names. They are Shokat Ali, Teju, Salman, Kasim Din, Rashid, Munna,

561-A Cr.P.C. No.671/2017 MP No.01/2017 Page 3 of 9
Zulfa and Kabar Rashid. The Prosecutrix has been identified by Sh. Riaz
Ahmad Sr. P.O. before the court.

05. Heard and Considered.

06. No doubt, this Court is conscious of the fact that elaborate documentation is
not required to be made in the bail application, but the law provides that while
dealing with an application for bail, there is a need to indicate in the order,
reasons for prima facie concluding why bail was being granted particularly where
an accused is charged of having committed a serious offence. Any order de hors
such reasons suffers from non-application of mind as is noted by the Supreme
Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. [(2002) 3 SCC
598], Puran etc. v. Rambilas and Anr.Etc. [(2001)6 SCC 338)] and in Kalyan
Chandra Sarkar v. Rajesh Ranjan alias PappuYadavAnr [JT 2004 (3) SC 442].

07. The law evolved on the subject by the Supreme Court provides that
although a conclusive finding in regard to the points urged by the parties is not
expected of the Court considering the bail application, yet giving reasons is
different from discussing merits or demerits. As noted above, at the stage of
granting bail a detailed examination of evidence and elaborate documentation of
the merits of the case has not to be undertaken. But that does not mean that while
granting bail some reasons for prima facie concluding why bail was being granted
is not required to be indicated.

08. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ PappuYadav and Anr. (2004
(7) SCC 528) In para 11 it was noted as follows:

“11. The law in regard to grant or refusal of bail is very well settled. The court
granting bail should exercise its discretion in a judicious manner and not as a
matter of course. Though at the stage of granting bail a detailed examination of
evidence and elaborate documentation of the merit of the case need not be
undertaken, there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where the accused is
charged of having committed a serious offence. Any order devoid of such

561-A Cr.P.C. No.671/2017 MP No.01/2017 Page 4 of 9
reasons would suffer from non-application of mind. It is also necessary for the
court granting bail to consider among other circumstances, the following factors
also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of
threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram
GovindUpadhyay v. Sudarshan Singh (2002 (3) SC 598) and Puran v.
Rambilas (2001 (6) SCC 338).”

09. It is also viewed in the said case that the conditions laid down
under Section 437 (1)(i) are sine qua non for granting bail even under Section
439 of the Code.

10. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it has been held as
follows:

“11. Further, it is to be kept in mind that the concept of setting aside the
unjustified illegal or perverse order is totally different from the concept of
cancelling the bail on the ground that the accused has misconducted himself or
because of some new facts requiring such cancellation. This position is made
clear by this Court in Gurcharan Singh v. State (Delhi Admn.).”

11. Looking at the instant petition from the perspective of the law laid down
above what gets revealed on the face of the statement of the prosecutrix is that a
heinous, horrid, and a horrendous crime has been committed by the accused,
released on bail, and others. It is a beastly and an abhorrent act, in which, the
accused/respondent No.3 is prima facie found to have abetted and facilitated the
commission of the offence of rape on a girl of tender age, that too, by a gang of
persons for about 20 to 22 days. It is she, the accused/respondent No.3 who
appears to have offered her some substance forcibly by which she lost her
consciousness. It is she, who compelled the prosecutrix to submit herself to the

561-A Cr.P.C. No.671/2017 MP No.01/2017 Page 5 of 9
sexual lust of a number of persons that too for a long time when she was just
fifteen years of age. It is she who stripped the prosecutrix and pushed her into a
forcible marriage. The learned Magistrate appears to have tried to remain
oblivious of these facts although it is she, who recorded the statement of the
prosecutrix on 15.09.2017, in which the prosecutrix stated that she was subjected
to rape by a battery of persons for about 20 to 22 days. The Assistant Sub.
Inspector Police Station, R.S. Pura submitted his report in the bail application on
18.09.2017 i.e. four days after the statement of the prosecutrix was recorded, but
he did not bring it to the notice of the Court that the prosecutrix has been
subjected to gang rape and the accused/respondent No.3 has facilitated this
detestable and abhorrent crime. The prosecuting officer also maintained a
complete silence on this aspect in his objections filed before the Court, five days
after the statement of the prosecutrix was recorded though he was the person who
identified the prosecutrix before the court.

12. The prosecutrix, forsaken and forlorn, having been subjected to repeated
rape as it appears from her statement has suffered at the hands of the learned
Magistrate, the learned prosecuting officer and the police officer, who tendered
the report before the Court. The forgetfulness of such a dastard act on their part
appears to be selective. They have not cared even a fig to peep deep into the case
and to report the actual occurrence before the Court. The learned Magistrate has
stated in the order impugned that she has perused the application, the objections,
the police report and the CD file before arriving at the conclusion that the
accused/respondent No.3 deserves to be admitted to bail. However, in case she
would have turned the leafs of the CD File minutely, she would have seen and
found that in the statement of the prosecutrix recorded by her under Section 164-
A R.P.C, the prosecutrix has stated that the accused has been the co-ordinator,
designer and the abettor of the commission of gruesome crime of repeated rape on
her by a battery of persons. No reasons for admitting the accused to bail have
been spelt out by the Ld. Magistrate except for the old aged maxims, adages and
axioms of law that bail is a matter of judicial discretion provided that the offence

561-A Cr.P.C. No.671/2017 MP No.01/2017 Page 6 of 9
does not prescribe the punishment of death or imprisonment of life and that grant
of bail is the rule and its refusal is an exception. An order bereft of reasons suffers
from complete non-application of mind. The order impugned has been passed by
the learned Magistrate in the most casual and cursory manner without looking into
the gravity of the offence levelled against the accused/respondent No.3 and
without gauging the capacity of the accused/respondent No.3 and others to
influence the witnesses of the prosecution and to turn the case in their favour. The
statement of the prosecutrix recorded under Section 164-A Cr.P.C. does bring it to
the bear that she was threatened into submission and subjected to beating, which
lends sufficient diabolism to the offence. The learned Magistrate has failed to
look into the societal concerns. She has forgotten to visualize that the sense of
justice of the victim shall be shattered if the accused is released on bail. If the
demands of the society and the law would have been applied in the proper
perspective, a miscarriage of justice which has resulted in passing the order
impugned whereby the accused/respondent No.3 has been admitted to bail would
not have occurred.

13. One of the most inhuman acts indulged in is when the animal instincts in a
human take possession of him and he sexually assaults an adolescent girl, caring
little what bruises he causes her bodily and psychologically. The assault causes
psychological, sexual and medical injuries to the victim with no attenuating
factors to, in any way, lessen the criminal ferocity. Right from intention down to
the act of crime, the intent is fully malicious. No one has come to the rescue of the
ill-fated and infelicitous girl child, not even the State that has remained a mute
spectator to this abominable crime. The father of the prosecutrix has been forced
to move the Court when the state showed its back and buckle. A girl child belongs
to all irrespective of the religion, race and caste to which she belongs. Justice has
to be meted out to the victim as well. Hon’ble Mr Justice Madan B. Lokur, very
recently wrote and I quote, “A child remains a child whether she is described as a
street child or a surrendered child or an abandoned child or an adopted child.
Similarly, a child remains a child whether she is a married child or an unmarried

561-A Cr.P.C. No.671/2017 MP No.01/2017 Page 7 of 9
child or a divorced child or a separated or widowed child. At this stage we are
reminded of Shakespeare’s eternal view that a rose by any other name would
smell as sweet so also with the status of a child, despite any prefix”.

14. Looking at the nature of the offence, the ferocity of the crime, the statement
of the prosecutrix, the apprehension of threat to the victim at the hands of the
accused and co-accused, there was no reason to admit the accused/respondent
No.3 to bail in a crime, which has a serious magnitude and it will be a sheer abuse
of the process of law, in case the order dated 21.09.2017 vide which the
accused/respondent No.3 has been admitted to bail is allowed to continue.
Therefore, invoking the jurisdiction of the Court under Section 561-A Cr.P.C., the
order impugned whereby the accused/respondent No.3 has been admitted to bail,
is quashed as a corollary to which, the accused/respondent No.3 shall be taken
into judicial custody by SSP Jammu, who shall file a compliance report on that
count.

15. Before parting, it needs must be said that the prosecuting officer and the
incharge ASI Police Station R.S. Pura, have suppressed a material fact in the
objections filed and the report submitted before the Court. They have not stated
anywhere in the objections and the report that in her statement recorded prior in
point of time, the prosecutrix has accused the respondent No.3 of compelling her
to submit herself to the sexual lust and desire of three persons, who subjected her
to forcible rape for a long time. This serious lapse on their part requires a
thorough probe. Therefore, it is a fit case where an inquiry should be conducted
against the prosecuting officer and the ASI concerned to find their culpability.
Learned Registrar (Judicial) of this wing of the High Court shall forward a copy
of this order to the DGP JK Police for conducting an inquiry into the conduct of
the afore-named Officers and he shall report before this Court the result of the
inquiry and action, if any, taken against them with utmost dispatch preferably
within a period of four weeks. The learned Registrar (Judicial) shall lay the report
before the Court immediately after it is received.

561-A Cr.P.C. No.671/2017 MP No.01/2017 Page 8 of 9

16. A copy of this order shall also be placed before the Hon’ble Chief Justice
for initiating appropriate action as deemed fit against the Judicial Magistrate
concerned so that the faith of the people on the temple of justice is not shattered
and eroded.

17. The record of the trial Court shall be sent down alongwith a copy of this
order.

(M. K. Hanjura)
Judge

This Judgment is pronounced by me in terms of Rule 138(3) of the Jammu
Kashmir High Court Rules, 1999.

Jammu
18.04.2018
(Dhiraj Singh Thakur)
Judge

561-A Cr.P.C. No.671/2017 MP No.01/2017 Page 9 of 9

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