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Zakir Hussain vs State Of J&K; on 23 February, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
B. A. No. 196/2017
MP No. 01/2018
Date of Order: 23.02.2018
Zakir Hussain
Vs.
State of JK
Coram:
Hon’ble Mr Justice M. K. Hanjura, Judge
Appearance:

For petitioner(s): Mr Ch. Mohammad Shabir, Advocate
For respondent(s): Mr Amit Chopra, GA.
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 Additional Sessions, Judge, Rajouri,
passed in an application for the grant of bail in case bearing FIR No. 224/2016,
registered at Police Station Rajouri, for the commission of offences under
Sections 363, 376 109 RPC, the accused-Zakir Hussain has knocked at the
doors of this Court for the grant of 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
and others 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
one year approximately. The evidence recorded during the trial of the case does
not 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

B. A. No. 196/2017 Page 1 of 5
of the commission of the offences attributed to him. The co-accused in the case
have been admitted to bail and, therefore, on the ground of parity he too
deserves to be admitted to bail. 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
his married wife 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 376, 363 109 RPC, having been established against the applicant, a
charge sheet has been laid against him and others in the Court of law.

4. Heard and considered.

5. The order of the learned Additional Sessions Judge, Rajouri, does not call for
any interference. It is based on law, logic and reason. It is lucid and luminous.
The learned Additional Sessions Judge, Rajouri 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. The learned Additional
Sessions Judge, Rajouri has held that the Court has already proceeded to frame
the charge against the accused for the commission of an offence under Section
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 which he has been put to
trial. He has proceeded to hold that in a case under Section 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

B. A. No. 196/2017 Page 2 of 5
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 were found
involved in the commission of offences under Section 363 109 RPC, while
as, the applicant is involved in and facing trial for the commission of offences
under Sections 376 363 and, therefore, the ground of parity as urged by the
applicant is devoid of any merit and substance. In the end, the learned trial
Court has after taking a cue from the law laid down in the case of “Arjun Katal
and Others v. State of Jammu and Kashmir”, reported in 2016 (2) JKJ 702,
held that the Proviso to Section 497_C (1) Cr. PC is attracted to the case of the
applicant and he has not been able to carve out a case for bail in his favour at
this stage.

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 10th July, 2017 is a sequel
to the fact that she was forced and coerced to sign the Nikah Nama at a time
when she was confined by the accused in his house situated at Chungarnari. 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, it has
to be in strict adherence 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

B. A. No. 196/2017 Page 3 of 5
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 Additional Sessions Judge, Rajouri, 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 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 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
Additional Sessions Judge, Rajouri, rejected the application of the applicant by
his order dated 12.08.2017. The accused filed the application for bail before this
Court on 27.10.2017, i.e. after a period of more than two months approximately.
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

B. A. No. 196/2017 Page 4 of 5
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 petitioner in moving another
application on a subsequent 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 petitioner. 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
Jammu
23.02.2018
“Manzoor”

B. A. No. 196/2017 Page 5 of 5

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