Karnal Singh vs Union Territory Of J&K

Applicant seeks grant of anticipatory bail in FIR No. 167/2019 dated 28.09.2019 for offences under sections 376 and 354 RPC registered at Police

Station, Rehambal, Udhampur. The allegations leveled against the applicant are that he assured the complainant and her husband that he would help

them in seeking possession of ancestral land from other share holders. She, thus, visited the house of the accused/applicant who was Lamberdar for

seeking assistance as her husband was unwell.

The applicant taking undue advantage of the situation had physical relations with her against her wishes and therefore, as per her statement he

continuously outraged her modesty from the year 2011 to 2019 against her will and consent. Besides this, he did not even help in getting the possession

of the land. She thus, approached for lodging FIR under section 156(3) Cr.P.C. before the Chief Judicial Magistrate, Udhampur and thus, aforesaid

FIR was registered.

Learned counsel for the applicant submits that the complainant is a mature lady and she did not even whisper these allegations or reported the same

for more than eight years. It is submitted that these allegations are after thought only to make for extraneous consideration.

Respondent despite opportunities has not filed any objections to the same.

The Apex Court also in Bhadresh Bipinbhai Sheth v State of Gujarat and another, 2016(1) SCC (Cri) 240, has held in paragraph No. 20 that:

‘…….31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some

ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the

event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage

of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily

true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be

actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other

considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The

nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the

applicant‟s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the

public or the State†are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The

relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 21,6

which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to

remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person

seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the

acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.â€​

It was further held in paragraph No. 17 of the judgment that:

“17. In a matter like this where allegations of rape pertain to the period which is almost 17 years ago and when no charge was framed under

Section 376 IPC in the year 2001, and even the prosecutrix did not take any steps for almost 9 years and the charge under Section 376 IPC is added

only in the year 2014, we see no reason why the appellant should not be given the benefit of anticipatory bail. Merely because the charge under

Section 376 IPC, which is a serious charge, is now added, the benefit of anticipatory bail cannot be denied when such a charge is added after a long

period of time and inaction of the prosecutrix is also a contributory factorâ€​.

Considering the submissions, prima facie the complainant is a mature lady who has leveled allegations against the applicant from 2011 onwards and

chose to complain only after eight years. Thus, considering the peculiar facts and circumstances of the case without commenting about the merit of

the case at this stage, this application is allowed.

In the event of arrest of the applicant, he is directed to be released on bail on his furnishing surety and personal bond of ₹ 25,000/- each on the

following conditions:

(i) he shall make himself available in the aforesaid FIR for investigation as and when required.

(ii) he shall not leave the territorial jurisdiction of this Court without prior permission and abide by condition as specified in 438(2) Cr. P. C.

Application is disposed of.