Rahul Gupta vs State of J&K

Mr. Tashi Rabstan, J. - The petitioner through the medium of instant petition in terms of Section 435 Cr.P.C. read with Section 497-A/498

Cr.P.C. is seeking setting aside of order of learned 3rd Additional Sessions Judge, Jammu (Fast Track Court) dated 20.05.2016 passed in File

No. 171/Cr. Misc., in case titled as State v. Pawan Kumar & Ors., in FIR NO. 221/2015, registered with Police Station Akhnoor, whereby

learned Trial Court has rejected the bail application of the petitioner, and with a further prayer to grant him bail.

The facts in brief as emerges from the police challan are that on 02.12.2015, a written complaint was lodged by one Surinder Kumar in the

Police Station, Akhnoor, alleging that his daughter aged 15 years, being minor, and was studying in 10th class, was missing from house since

12.11.2015. He had inquired from all of his relatives but could not trace her and because of said reasons there was a delay in lodging the report

with the police. In the complaint, it was further stated that later on he came to know that one Abhi alias Gulshan Kumar son of Tarseem Lal

resident of Pathankot, who used to visit the school of her daughter and he also called her twice on her cell phone, has kidnapped her. On this

report FIR No. 221/2015, for commission of offence under Section 363 RPC was registered in Police Station Akhnoor and investigation

commenced. During investigation, the prosecutrix was recovered from the possession of accused Gulshan Kumar alias Abhi from Tangu Chowk.

The prosecutrix was got medically examined by Investigating Officer from SDH Akhnoor and also got recorded her statement under Section 164-

A Cr.P.C. On the basis of the statement recorded under Section 164-A Cr.P.C., offence under Section 376 RPC was added and accused-

Pawan Kumar, Amit Gupta and Anil Magotra, were arrested on 19.12.2015. The prosecutrix stated before the Magistrate that she was forcibly

raped by the accused persons, namely, Amit Gupta, Pawan Kumar, Rahul, Anil Magotra, Harvinder Singh alias Pintu and Hardeep Tangotra alias

Sahil alias Rehan. She stated that these accused persons were harassing and threatening her of defamation and by enticing Her, committed rape

upon her. On completion of investigation, challan was produced against accused persons, namely, Amit, Rahul, Pawan, Anil Magotra and

Harvinder Singh alias Pintu whereas accused Sahil alias Hardeep Tangotra was found involved in commission of offence under Section 376/511

RPC.

The petitioner constrained by the constant threat of his arrest finally challenged FIR and charge' sheet No. 279/challan in a petition under

Section 561-A Cr.P.C. No. 118/2016, which came up for consideration before the Court on 15.03.2016 and this Court passed the following

order:-

In view of the submission made by learned counsel for the petitioner coupled with the averments of the petition at the first instant, it shall be quite

appropriate to ask both the respondents to remain personally present.

Notice be issued for their presence executable through Police Station concerned.

List again in the week following next in a regular cause list.

The case was again listed on 31.03.2016 when the prosecutrix was present in the Court. She appeared along with her counsel. She in the open

Court stated that the petitioner was not known to her. Her submission was taken on record and in view of her statement, this Court protected the

petitioner from harassment by directing the trial Court to admit the petitioner to bail after furnishing bail bonds to the tune of Rs. 30,000/- and

surety bond of the like amount. It was further directed that thereafter trial Court shall hear the petitioner vis-a-vis framing or otherwise of the

charge. Further proceedings shall abide by the order of the trial Court. With these observations, the petition was disposed of.

The arguments on charge were heard by the trial court and ultimately learned Trial Court has framed charge against all the accused including the

petitioner vide his order dated 16.05.2016. The Trial Court, after having found that a prima facie case has been made out against the petitioner and

other accused, charge-sheeted them for commission of offences punishable under Sections 376/511 RPC.

The petitioner applied for bail before the Trial Court, which came to be rejected vide order dated 20.05.2016 constraining the petitioner to file

the instant revision on the ground that the order impugned is not only against facts and law but also is not sustainable on the touchstone of the

established principles of Criminal Jurisprudence. The order impugned is said to be had in law because the trial court has failed to notice a very

important aspect of the case that this court in exercise of its inherent jurisdiction to do absolute justice, had summoned the prosecutrix before this

court, who has specifically denied any acquaintance with the petitioner and stated that the petitioner (who was present in the court) is not known to

her and based on this statement of the prosecutrix, this court was satisfied that the petitioner has to be protected against any harassment and thus

granted bail to the petitioner. It was this Court, according to petitioner, which granted bail to him and the trial court was only directed to accept the

bail bond and the surety bond of the petitioner. The petitioner was to be heard on the issue of charge in the light of the developments that had

taken place before this Court but the trial court totally ignored the proceedings that took place before this Court and rushed to frame charge

against the petitioner on the basis of conjectures and surmises. Learned Trial Court has framed charge against the petitioner primarily on the ground

that at the stage of framing of charge, the court will look into the material on record only and if the Court finds some material, then the charge is to

be framed. It is submitted that the trial Court while dealing with the case of petitioner, was required to look into the material on record and also the

observations of this Court made in its order dated 31.03.2016. The Trial Court in its order has not indicated as to what is the material before him

against the petitioner, on the basis whereof he has satisfied himself that a charge of a heinous offence of rape is made out against petitioner. In

whole of the prosecution story and whole of the case file, to the best of the knowledge of the petitioner, the only material on record which

probably has been used against the petitioner is the statement of prosecutrix under Section 164-A, on the basis of which charge cannot be framed

against the petitioner and petitioner cannot be put behind the bars. The charge has been framed against the petitioner along with other accused on

the basis of vague statement of prosecutrix without there being any supportive material for the same. The order impugned has been passed and the

charge has been framed against the petitioner by the trial court without appreciating evidence brought on record by Investigating Agency which

does not make out a case of charge against the petitioners. There is not an iota of evidence on record of charge sheet to constitute and bring home

the accusation of guilt against the petitioners.

The respondents have filed objections and resisted the petition on the ground that present petition raises disputed question of facts which this

Court while exercising its revisional jurisdiction, may not look into such disputed question of facts. It is insisted that accused petitioner has

committed very heinous offence of serious nature, as such, it would be premature to grant bail to him at this stage, that too in such a serious

offence. It would be appropriate to reproduce Paragraph No. 14 of the objections filed by the respondents as under:-

That the 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 embodies in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu

Yadav & Anr., (2004) 7 SCC 528, State v. Captain Jagjit Singh AIR 1962 (SC) 253, Gurcharan Singh v. State Delhi Administration,

AIR 1978 (SC) 179. All these guidelines have distilled in a recent judgment of Supreme Court in Jayendra Saraswati Swamigull v. Tamil

Nadu, AIR 2005 (SC) 716 and basically they are the nature and seriousness of the offences, char-acter 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 AIR 2004 SC 1866, the Hon’ble Supreme Court has laid down proposition of law regarding successive bail

applications that an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications

has a duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases the court has also a duty to

record what are the fresh grounds which persuade the court to take a view different from the one taken in the earlier applications.

I have heard learned counsel for the parties and perused the record.

While considering the bail application, what is required to be seen is prima facie involvement of a particular accused connecting him with

commission of alleged offence and its gravity or seriousness. Chances of tampering with evidence can also be a very valid ground for rejecting or

accepting the bail application and at the same time, the Court has also to ensure that there should not be any hindrance in free, fair and just trial.

It is contended by learned counsel for the petitioner that petitioner has been charged for commission of alleged offence punishable under

Sections 376/511 RPC. He further contends that accused has not committed any offence but has been implicated in a false and frivolous case and

that the offence attributed to the petitioner is not punishable with death or imprisonment for life, as such, there was no bar in granting bail to

petitioner by the learned Trial Court.

Learned counsel for the State while opposing bail to the petitioner, argues that petitioner is facing trial and the Trial Court on consideration of

the allegations levelled, has prima facie found commission of offences punishable under Sections 376/511 RPC Learned Trial Court has rightly held

that important and material witnesses are yet to be examined, as such, the accused is not entitled to bail at this stage. It is further contended that

since the petitioner had already preferred a bail application before the court of learned 3rd Additional Sessions Judge. Jammu (Fast Track Court),

which came to be dismissed by a detailed and well reasoned order dated 20.05.2016, in absence of any new or fresh grounds, it is not open for

the Court to reconsider the same material and overrule the findings of the Trial Court. There is no scope for petitioner to raise the same points

again and, therefore, this petition needs to be rejected at the threshold. Learned counsel further contends that from the material placed on record

prima facie it was found that there was strong evidence against the petitioner, therefore, looking to the gravity and seriousness of the offence, in

which petitioner is allegedly involved, he does not deserve any leniency by the Court. It is, however, pleaded that since the trial is at initial stage

and many prosecution witnesses are yet to be examined, therefore, instant petition being premature one, is liable to be rejected.

The principles which generally govern the grant of bail are relatable to following things:-

i) seriousness of the allegations, severity of punishment, the character of evidence on which the charge is proposed to be sustained, possibility of

tampering and intimidating the witnesses and chances of running away from the trial.

ii) false implication of the accused, allegations levelled not believable and wrecking vengeance for political or business reasons.

The above principles are required to be kept in mind while exercising powers under Section 498 Cr.P.C. It is also to be noted that at the stage

of considering the application for grant of bail, the Court has only to go into the limited question as to whether a prima-facie case is established

against the accused. It cannot go into the evidentiary value, creditability and reliability of the witnesses. However, while examining the bail plea of

the accused, the circumstances under which crime is alleged to have been committed, the character and behaviour of the accused person is also to

be examined. While vague allegations that the accused will tamper with the evidence without there being any supportive material may not be a

ground to refuse bail, however, if the accused is of such a character that his mere presence at large would intimidate the witnesses or if there is

material to show that he will abuse his liberty to subvert justice or would tamper with the evidence, then bail may be refused. My view is fortified

by a judgment of the Apex Court in the case titled as State of U.P. through CBI v. Amarmani Tripathi, reported in (2005) 8 SCC 21. What

has been observed in this regard in Paragraph 18 of the judgment may be noticed as under:-

It is well settled t hat the matters to be considered in application for bail are (i) whether there is any prima facie or reasonable ground to believe

that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv)

danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi)

likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice

being thwarted by grant of bail (See Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State Delhi Admn.). While a vague

allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that

his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with

the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra

Sarkar v. Rajesh Ranjan. (SCC pp. 535-36, Para 11)

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 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 hail; 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 Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas).

In the present case, it be seen that the accused, according to prosecution, is involved in heinous offence of commission of rape. Therefore, it

would not be relevant to judge conduct of accused at this stage for the purpose of grant of bail. The case set up by petitioner relates to the merits

of the case and evaluation of evidence. These facets, however, are the matters which, perhaps, cannot be appreciated at this stage while the trial is

still on. For the purpose of bail, what is required to be seen is as to whether prima facie there are circumstances which connect the accused with

the crime. At this stage, this Court cannot be asked to adjudicate the issues relating to the merits of the evidence. However, the petitioner would be

well within his rights to raise all these issues before the trial Court.

Be that as it may, the only issue which is required to be considered at this stage is whether the petitioner in view of the above circumstances,

would be entitled to bail and whether the revision against the interlocutory order is maintainable.

The Court while granting/refusing bail has to take into consideration the following factors:-

(i) Whether there is or not reasonable grounds for believing that the applicant/accused is guilty of the offences;

(ii) The nature and gravity of offences;

(iii) The severity and degree of the punishment prescribed;

(iv) The chances of the applicant/accused absconding, if released on bail;

(v) The danger of the evidence being tampered with;

(vi) Larger interest of the society;

(vii) Character of the evidence against the accused;

(viii) The danger of the offence being repeated or continued; and

(ix) Hindrance to have free, fair and just trial.

While dealing with an application for grant of bail, there should be sufficient reasons to indie ate in the order, for prima facie concluding as to

why the bail should be granted where the accused is charged with serious offence(s). The purpose of refusing to grant bail is to ensure presence of

accused during the trial and to further ensure free and fair trial, which may be vitiated by intimidation of witnesses by the accused, if set at large

during the course of trial. The underlying principle is to ensure that the accused faces the trial which is free and fair.

In view of the recent incidents of crime against women, particularly, incident of rape of minor, the Courts have already funded that precaution is

to be taken while considering the bail pleas of the offender(s) of such heinous crime. It has been impressed upon the Judicial Officers and Sessions

Judges dealing with such cases to take care and caution in exercising discretion to consider the release or otherwise of the accused on bail pending

investigation and trial, lest the discretion so exercised affects adversely the societal interests, investigation and fair trial.

From the perusal of the order passed by the learned trial Court, it is abundantly clear that keeping in view nature and seriousness of allegations

made against the accused coupled with the fact that charges under Section 376 RPC have been framed against him, learned Sessions Judge has

exercised its discretion which is well founded and in consonance with the legal parameters laid down in dealing with such matters. Otherwise also,

grant of bail being interlocutory order, is not subject to revisional jurisdiction. However, under exceptional circumstances and rarest of rare cases,

this Court may interfere in such discretion exercised by learned trial Court while exercising its inherent jurisdiction under Section 561-A Cr.P.C.

Otherwise also, the conduct of the accused before and after grant of bail by this Court and after rejection of his bail by the learned trial Court has

rendered the accused dis entitled to exercise of discretion in his favour in any manner. Needless to say that prior to applying for bail before this

Court accused had absconded from the process of law and repeated the same conduct when his bail plea was rejected by the learned trial Court

after framing of charge. A person who has no respect for law and deliberately abscond from the process of law is otherwise dis entitled to the

exercise of discretion for grant of bail in his favour.

In the instant case, the allegations levelled against petitioner is of rape committed on the prosecutrix, who belongs to a socially underprivileged

class of scheduled caste in the society and vicinity of Akhnoor and the grant of bail to the petitioner at this stage before recording the prosecution

witnesses, who have never cooperated with the Investigating Agency will definitely influence the prosecution witnesses, prejudicial to the

prosecution case.

Therefore, as discussed herein above, I am of the considered view that severity and degree of punishment would be at higher side if the

allegation levelled against the petitioner-accused is proved to be true. Since the trial in this case is at its infancy, therefore, in my view, it would be

improper and premature to admit the petitioner accused to bail at this stage. Further, in case concession of bail is extended to the petitioner at this

stage, there is every likelihood that he may threaten or win over the prosecution witnesses and thereby thwarting the course of justice.

No doubt, Mr. Bhat, learned counsel for the petitioner-accused has raised many issues on facts and law, but, the same relate to the merits of

the prosecution case and its admissibility in law, which cannot be dealt with in detail at this stage, lest any expression of opinion on merits can

prejudice the mind of the trial Court. I, therefore, deem it appropriate to refrain from commenting upon the merits of the case while deciding this

criminal revision petition.

Learned counsel for the petitioner has also relied upon the judgment of Apex Court in case Satlingappa Mhetre v. State of Maharashtra

& Ors., reported in 2010 Legal Eagle (SC) 976. I have perused the same and in my view the facts and gravity of offence in both the cases are

altogether different. Moreover, the trial in FIR No. 221 of 2015, is still at its infancy, therefore, judgment relied upon by Mr. Bhat, learned counsel

for the petitioner-accused, does not bear any significance.

Therefore, in totality of the circumstances and for the reasons discussed above, this Court does not find any such exceptional circumstances

calling for interference with the order passed by the learned trial Court. Resultantly, this Criminal Revision is not maintainable and the same is

dismissed. However, keeping in view the fact that the petitioner has a right of speedy trial, learned trial Court is expected to conduct the trial of this

case without any reasonable delay. Prosecution agency is directed to ensure presence of the witnesses on each and every date of hearing before

the trial Court. It is made clear that any observation made herein above shall not prejudice the case of the petitioner in any way.