Mushtaq Ahmed vs UT Of J & K & Anr

Mohan Lal, J

In terms of Section 439 of Code of Criminal Procedure, petitioner/accused has claimed bail in case arising out of FIR No. 10/2012 registered with Police Station Reasi for commission of offences punishable under Sections 363/376/343/109 IPC. It is averred, that petitioner is a citizen of India and peace loving and law abiding citizen of Union Territory having movable and immovable property in the UT of J & K and is therefore entitled to the protection of his fundamental rights including the right to liberty and freedom; that the petitioner moved an application before the trial court (Principal Sessions Judge, Reasi) for grant of bail but the learned Court without appreciating the statement of the prosecutrix, law and facts of the case dismissed the bail application; that the petitioner has been wrongly and falsely implicated in aforesaid FIR by the prosecution on the basis of totally untrue and misleading information received; that the applicant was arrested by the Police and produced before the learned trial court wherein he was charged vide order dated 12.07.2021; that the statement of prosecutrix was also recorded wherein she has stated that she was raped by the accused Mohd. Rafiq and not by the applicant, however, the accused Mushtaq Ahmed applicant herein the company of Mohd. Rafiq abducted her and was kept confined in a room where the accused Mohd. Rafiq raped her and the prosecutrix was declared hostile and was subjected to cross examination wherein she disclosed that the applicant in connivance with the main accused Mohd. Rafiq abducted the prosecutrix but has clearly denied that the prosecutrix was raped by the applicant Mushtaq Ahmed; that the statement of the prosecutrix which was recorded by the trial court on 06.12.2021 clearly reveals that the applicant has not committed rape with the prosecutrix on the basis of which the applicant was implicated in the said FIR; that in the said FIR the police has registered FIR against three persons including the applicant and the other two persons namely Mohd. Rafiq being minor was convicted by the trial court but after declaring minor he was released by the court and the other accused Mohd. Sharief who provided shelter to the accused Mohd. Rafiq acquitted by the trial court; that after the arrest of the applicant, he was produced before the trial court and the trial court charged the applicant and commenced the trial against the applicant, and during trial the statement of the prosecutrix was recorded, and as per her statements no case is made against the applicant as the prosecutrix has flatly denied that the applicant namely Mushtaq Ahmed has committed rape with her; that the applicant was implicated in the FIR as accused because he is the brother of the main accused namely Mohd. Rafiq; that the applicant was falsely implicated in the FIR as the applicant has not committed any offence as alleged in the FIR as such and the applicant is entitled to concession of bail.

Respondents have filed objections wherein it has been contended, that on 24.01.2012 complainant namely Mohd. Akram S/o Kala caste Kahmire Lohar R/o Simbol Chowa Tehsil and District Reasi appeared at this Police Station Reasi and produced a written application in urdu mentioned therein that on 14.01.2012 his minor daughter of age 13 ½ yrs. was missing from home whose report is entered at Police Station Reasi vide DDR No. 16; that the accused person namely Mohd. Rafiq S/o Abdul Aziz caste Kashmiri R/o Thuroo Tehsil Mahore District Reasi had kidnapped his minor girl etc; on this case FIR No. 10/2012 under Section 363 IPC registered at this police station and investigation was entrusted to ASI Nazir Ahmed; that during investigation, IO proceed on the spot, prepared a site plan and recovered kidnapped minor girl namely Gulshan Banoo and recorded her statement before court of law u/s 164 Cr.P.C, IO obtained her medical report regarding rape from hospital Reasi, as per the investigation, recorded statement of witness, recorded statement u/s 164 Cr.P.C and medical report, IO found that on 24.01.2012, complainant appeared at this PS Reasi and produced a written application state therein that his daughter is minor i.e. age about 13 ½ years who was kidnapped by (1) Mohd. Rafiq S/o Abdul Aziz (2) Mushtaq Ahmed S/o Abdul Aziz caste Lohar Both R/o Thuroo Tehsil Mahore District Reasi from home and took her to Bantalab, Jammu and kept her for 8/9 days at the home of one Mohd. Sharief S/o Asgar Ali R/o Bantalab, Jammu where both accused persons have committed her rape, whereas Mohd. Sharief S/o Asgar Ali R/o Bantalab, Jammu is a relative of both accused persons and due to his conspiracy, both accused persons kidnapped her and kept her near a room of his home and repeatedly committed rape with her, on the offence under Section 363/376/343/409 RPC have proved against accused persons (1) Mohd. Rafiq S/o Abdul Aziz (2) Mushtaq Ahmed S/o Abdul Aziz caste Lohar Both R/o Thuroo Tehsil Mahore District Reasi, whereas offence under Section 109 IPC has proved against the accused person Mohd. Sharied S/o Asgar Ali R/o Bantalab, Jammu.

Heard and considered.

Mr. Ashish Singh Kotwal, learned counsel for the applicant/accused has vehemently argued, that the prosecutrix was declared hostile and was subjected to cross-examination wherein she disclosed that the applicant in connivance with the main accused Mohd. Rafiq abducted the prosecutrix but has clearly denied that the prosecutrix was raped by the applicant Mushtaq Ahmed. It is argued, that the statement of the prosecutrix which was recorded by the trial court on 06.12.2021 clearly reveals that the applicant/accused has not committed rape with the prosecutrix on the basis of which the applicant was implicated in the case, the said FIR registered against three persons including the applicant and the other two persons namely Mohd. Rafiq being minor was convicted by the trial court but after declaring minor he was released by the court and the other accused Mohd. Sharief who provided shelter to the accused Mohd. Rafiq acquitted by the trial court. It is moreso, argued that during trial the statement of the prosecutrix was recorded and as per her statements no case is made against the applicant as the prosecutrix has flatly denied that the applicant namely Mushtaq Ahmed has committed rape with her. To buttress his arguments, learned counsel for the applicant/accused has relied upon the law laid down in (i) Data Ram Singh vs. State of Uttar Pradesh & Ors. reported in 2018 (3) SCC page 22, and (ii) P.Chidambaram vs. Directorate of Enforcement (bearing Criminal Appeal No. 1831/2019 (arising out of SLP Criminal No. 10496/2019)

Mr. Ravinder Gupta, learned AAG has vehemently argued, that the applicant/accused is involved in heinous crime against the society at large and does not deserves any leniency of bail, the bail application is also not maintainable on the principle of successive subsequent bail applications, as there has been no change of circumstances, so the further bail plea does not lie. It is argued, that the Hon’ble Apex Court of India has underlined the guidelines for criminal courts 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 Sarkar vs. Rajesh Ranjan alias Papu Yadav and Anr. (204) 7 SCC 528, State vs. Captain Jagjit Singh AIR 1962 (SC) 253, Gurcharan Singh vs. State Delhi Administration AIR 1978 (SC) 179, all these guidelines have distilled in a recent judgment of Hon’ble Supreme Court in Jayendra Saraswati Swamigal vs. State of Tamil Nadu AIR 2005 (SC) 716 and basically they 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 the trial, reasonable apprehension of the witnesses being tempered with, and above all larger interest of the public or the state and other similar factors which may be relevant in the facts and circumstances of each case.

In Data Ram Singh vs. State of Uttar Pradesh & Ors. reported in 2018 (3) SCC page 22 relied by learned counsel for the petitioner/accused the concept of bail has been encapsulated by Hon’ble Supreme Court as under:

A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.

The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in NikeshTarachand Shah vs. Union of India 2 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia vs. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, is that bail is not to be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.

In P.Chidambaram vs. Directorate of Enforcement” bearing Criminal Appeal No. 1831/2019 (arising out of SLP (Criminal) No. 10496/2019 relied by learned counsel for the petitioner/accused, the concept of bail has been further encapsulated by Hon’ble Supreme Court as under:

Thus from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of “grave offence” and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial.

It is apt to reiterate here, that the petitioner/accused is indicted in FIR No. 10/2012 for commission of offences under Sections 363/376/343/109 IPC for the allegations that he along with co-accused Mohd. Rafiq abducted the prosecutrix and kept her in confinement at Bantalab in the room of house of co-accused Mohd. Sharief for 8/9 days and raped her. During the trial, petitioner/accused surrendered before the trial court of learned Principal Sessions Judge Reasi who framed charges against him vide his order dated 12.07.2021. The statement of prosecutrix as prosecution evidence was recorded on 06.12.2021 before the trial court wherein she has categorically deposed that petitioner/accused Mushtaq Ahmed did not commit any wrong act or rape with her, while co-accused Mohd. Rafiq committed rape with her. As the prosecutrix has resiled from her statement that petitioner/accused committed rape with her, therefore, without commenting upon the merits of the prosecution evidence, the petitioner/accused has carved out a case for bail in his favour. Accordingly, bail application is allowed, and petitioner/accused is admitted to bail in the sum of Rs. 50,000/- to the satisfaction of the Registrar Judicial of this Court with the direction to furnish the personal bond before In-charge Sub-jail Reasi where he is presently lodged. Before parting, the following conditions are imposed upon the petitioner/accused:

(i) petitioner/accused shall appear before the trial court on each and every date of hearing during the trial unless exempted by the trial court;

(ii) petitioner/accused shall not cause any undue influence to win over the prosecution witnesses or dissuade them from deposing before the trial court;

Disposed of, accordingly.