Rajesh Kumar Abrol vs Union Territory J&K And Another

1 Through the medium of instant petition, the petitioner is seeking bail in FIR No. 06/2018 for offences under Sections 376/420 RPC registered with

Police Station Janipur, Jammu.

2 As per the prosecution case, a report was lodged by the prosecutrix with the aforesaid Police Station on 12.01.2018. In the report, the prosecutrix

alleges that in the year 2005, whileshe was contesting a case against a person, she came into contact with the petitioner through a lady, named Jyoti,

who claimed to be the sister of the petitioner; that the lady suggested her to meet the petitioner for legal help; that she met the petitioner, who

promised to extend legal help to her on the condition that she should work as his domestic help at his house at Roop Nagar, Jammu; that she started

working at the house of the petitioner, who promised to pay her salary of Rs.5000/-per month; that she and her daughter were putting up in the house

of the petitioner; that on her seeking legal support, the petitioner assisted in dissolution of her marriage with her husband by getting the divorce deed

attested by Notary Public, Jammu on 07.08.2015 and one of the PSOs of the petitioner signed the said deed as witness; that the petitioner befooled her

by getting the divorce deed attested before Notary Public, knowing well that only a decree of divorce could dissolve a marriage; that after working for

the petitioner for some time, she expressed her intention of leaving the work; that on this, the petitioner got agitated and requested her not to leave him

alone; that he filled her ‘Maang’ with ‘Babuti’ and declared that she is his wife now and cannot leave him alone; that she was taken

aback, she started crying and stopped talking to the petitioner, who assured her that he would take care of her daughter and provide her good

education; that she asked the petitioner that since he is already married, as such, how could he marry her during the life time of his wife; that the

petitioner told her that he had parted with his wife; that he is living separately from his wife for last seven years and that he is a law knowing person;

that the petitioner made her to believe that she is lawfully married to him and that she is his legally wedded wife; that by doing so, he also secured her

consent to have sexual intercourse with her; that she succumbed to his pressure and did not share the aforesaid facts with anyone around; that a few

months later, the petitioner planned to have ‘Saptpati’ with her; that he solemnised marriage with her in his house at Roop Nagar in presence of

his PSO, Ashok Jamwal, his friend, Darshan Gupta and a Pandit; that the petitioner concealed his marital status from her and made her to believe that

she is his legally wedded wife; that thereafter, they lived like husband and wife for one and a half years; that after one year of their marriage, she

came to know that the petitioner has betrayed her by marrying her during the lifetime of his wife Neetu Bala, who thrashed her saying that she should

leave thepetitioner immediately as they are going to patch up soon; that on this, she took up the matter with the petitioner who denied having any

relation with Neetu Bala but at a later stage accepted the same and assured her of all kind of financial support; that the petitioner threatened her of

dire consequences for taking any action against him; that she remained under his pressure knowing that the petitioner is a Judicial Officer and can

manage things against her; that the petitioner has treated her as a sex slave and several times opened fire on her; that the petitioner has now

withdrawn from her society and has shifted to his wife; that the petitioner married and secured her consent to sexual intercourse and has defamed her

in public at large; that he told her that she is his legally wedded wife; that she should have never given her consent to develop physical relation with

her and that she is now putting up at Nagrota and she is still being threatened by the petitioner.

3 After investigation of the case, offences under Sections 420/376 RPC were found established against the petitioner and a chargesheet was laid

before the learned trial Court. It appears that the petitioner has approached the learned trial Court as well as this Court on a number of occasions for

grant of bail, but each of his attempts has resulted in failure. The latest bail application of the petitioner was rejected by the learned trial Court on

06.05.2020. The record of the learned trial Court shows that the trial of the case is almost complete and only one witness viz. the Investigating Officer

has to be examined in the case.

4 The petitioner has sought bail in the instant case primarily on the following two grounds;

(i) That the statements of prosecution witnesses in the case do not make out a case of rape against the petitioner and

(ii) That the health condition of the petitioner has deteriorated due to his prolonged detention.

5 The respondent has resisted the bail petition by filing its reply thereto. In its reply, the respondent has contended that the petitioner is facing trial for

commission of heinous offence of rape and in view of the evidence on record, no good ground is made out to enlarge him on bail. It is further

contended that in case, the petitioner is enlarged on bail, there is every likelihood of the witnesses being influenced. Apart from this, the petitioner may

flee from the process of law by misusing the liberty of bail.

6 I have heard learned counsel for the parties and perused the record of the case including the trial Court record.

7 Before proceeding to analyze the rival submissions made by learned counsel for the parties, it is necessary to restate the factors required to be

considered for deciding an application for bail which are as under::-

(i) whether there is any prima facie or reasonable ground to believe that the accused has committed offence;

(ii) nature and gravity of the charge;

(iii) severity of punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing after release on bail;

(v) character, behavior, 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 justice being thwarted by grant of bail.

8 The primary factor while considering the question of grant or refusal of bail in a serious offence like rape is to see, as to whether there is any

material on record to implicate the person seeking bail. According to the learned counsel for the petitioner, the statements of the witnesses recorded

before the trial Court do not implicate the petitioner in the crime, whereas the learned counsel for the respondent-State strongly contends that the

material on record does support the case of the prosecution against the petitioner.

9 Although, it would be premature for this Court to deeply analyse the material that has been brought before the trial Court during the trial of the case

in support of the charge against the petitioner, yet, for the limited purpose of deciding this bail application, it is necessary to take the said material into

consideration to test the merits of submissions made by learned counsel for the parties.

A perusal of the statements of prosecution witnesses recorded by the trial Court in this case does suggest that most of the prosecution witnesses

have not supported the prosecution case, but the most material witness in this case, the prosecutrix appears to have supported the prosecution case.

She, in her statement, has reiterated the allegation that while she was working as a maid servantin the house of the petitioner, her ‘Maang’ was

filled with ashes by the petitioner and thereafter both of them further solemnised the marriage as per the Hindu rites and they started living as husband

and wife. She has gone to state that the petitioner deceitfully made her to believe that she is his wife and committed sexual intercourse with her.

Whether the statement of the prosecutrix has withstood the test of cross- examination and whether there are other circumstances proved on record

that would make her statement reliable, are questions which can be gone into by the trial Court at the time of passing the final judgment. These

questions cannot be gone into by this Court during the bail proceedings, as it is not open to this Court to meticulously analyse the evidence on record.

11 Having regard to the nature of the statements of prosecution witnesses, particularly the statement of the prosecutrix, this Court is unable to record

an opinion, even a prima facieopinion that the case of prosecution against the petitioner is frivolous. There appears to be some merit in the submission

of learned counsel for the respondent that from the statement of the prosecutrix, a prima facie view can be taken that the consent of prosecutrix for

sexual intercourse was obtained by the petitionerknowing that he is not her husband,when the prosecutrix believed herself to be lawfully married to

petitioner thereby attracting clause fourthly of Section 375 of RPC. Thus, it cannot be stated at this stage that the petitioner is not involved in the

alleged crime.

12 The order dated 06.05.2020 passed by the learned 3rd Additional Sessions Judge, Jammu whereby the bail application of the petitioner has been

rejected is very clear on the above aspect of the matter and there is no ground to take a different view.The view taken by the learned trial Court after

analysing the statement of the prosecutrix and the other evidence on record, is well founded. It is pertinent to mention here that after passing of the

aforesaid order by the learned trial Court, no further progress has taken place in the trial of the case and, as such, there has been no perceptible

change in the circumstances of the case.Thus, there is no fresh material and further developments in the case as to impel this Court to take a different

view in the mater so far as the merits of the prosecution case is concerned.

13 Having observed that there is material on record of the trial Court to prima facie connect the petitioner to the alleged crime of rape, there can be no

dispute to the fact that rape is a heinous crime which entails punishment up to life imprisonment. The offence of rape not only destroys the victim

physically, but it shatters her mentally as well. So a lenient view in such like matters is out of question.

14 Coming to the question of grant of bail on health grounds, it has been contended by learned senior counsel for the petitioner that the petitioner is

suffering from a life consuming disease of cancer and he does not get proper treatment while in jail and, as such, he deserves to be enlarged on bail. It

is true that there is material onrecord to show that the petitioner is suffering from malignancy (lymphoma) and there is also material on record to show

that he has undergone twelve cycles of chemotherapy, but the petitioner has not placed on record any latest medical record to show that his condition

has deteriorated in jail. The medical certificates placed on record by the petitioner pertain to the year 2014. The petitioner has been in incarceration for

the last three years and there is nothing on record to show that his health condition in the jail has deteriorated. From a perusal of the trial Court record,

it is revealed that repeated directions have been issued by the learned trial Court to the jail authorities to ensure that the petitioner gets proper medical

care during his incarceration. Therefore, a case for grant of bail on medical grounds is not made out.

15 Lastly, it has been vehemently contended by the learned senior counsel for the petitioner that the trial of the case is almost complete and there is no

justification for keeping the petitioner in jail. He has further contended that simply because the petitioner is a Judicial officer, an example is being made

out of him by treating his case harshly in the matter of grant of bail.

16 It is true that the statements of most of the prosecution witnesses including the statement of prosecutrix stands already recorded, but then that does

not give the petitioner a vested right to grant of bail, particularly in a case of rape. In cases of such like nature, bail can be granted only if, prima facie,

it is shown from the evidence led by the prosecution that the allegations against the accused are false. As already discussed, the present case is not of

such a nature.

17 The fact that the petitioner is a Judicial officer, a person in the position of authority and the victim happens to be a person from the lowest strata of

the society, makes the crime more serious. The position of accused vis-a-vis the victim is an important factor while considering a bail application.

Higher the status of a person, greater is the standard of conduct expected by the society from him. Therefore, more responsibility lies on the persons

holding high offices like that of a Judge to remain above board in their public as well as private life. A judgment or order of a Court of law derives its

authority and respect not only from the quality it possesses but also from the integrity and rectitude of its author. Once a Judge falls off from ethical

and moral standards, his judgments and orders are viewed with suspicion. Therefore, when a Judicial Officer is implicated in an offence of rape,

which does involve moral turpitude, the Courts cannot treat it as any other routine case of rape, but the same has to be dealt with ona different footing

with more severity and all seriousness. Therefore, this Court does not find any merit in the argument of learned counsel for the petitioner that unduly

harsh treatment is being given to the petitioner in the matter of grant of bail in his favour.

18 For the forgoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. However, having regard to the fact that the

petitioner is in custody for the last about three years, the learned trial Court is directed to take resort to physical hearing of this particular case and

conclude and decide the case within a period of two months from the date, copy of this order is made available to it.

Copy of this order be sent to the learned trial Court for information and compliance.