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Where Circumstances Necessitating Detention do not Exist, Bail must be Granted: High Court of Jammu & Kashmir and Ladakh at Jammu

In absence of anything to show violent action, repeat offense, or other circumstances necessitating detention, a bail application must be considered and granted, as was held in a judgement by the HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU, before a bench consisting of Hon’ble Justice Mr. Cheekati Manavendranath Roy, in the Zahid Choudhary vs. Union Territory of Jammu & Kashmir and Ladakh [B.A. No.312/2021], on 29.01.22.

The petitioners have filed these applications for grant of bail for the commission of offences punishable under Sections 363/376-D/109 of the Indian Penal Code, 1860 (IPC) and Sections 3/4 of the Protection of Children from Sexual Offences Act, 2012 (POSCO) in case FIR No.29/2020 dated 12.02.2020 registered at Police Station Bari Brahamana, Jammu. The facts of the case were that on 12.02.2020, the father of prosecutrix lodged a complained before the Police Station Bari Brahmana, Jammu that his daughter, a student of Class 12th in S.P. Smart School Sarore, boarded school bus from Badhori. She alongwith other students was taken to Vijaypur by another bus by the school for practical examination, but she left the bus at Vijaypur. Thereafter, the prosecutrix boarded a matador for Bari Brahmana, for where she was kidnapped by the petitioners herein. In the morning at about 6:00 AM, the prosecutrix was thrown in the field near their house in unconscious condition. Petitioner/accused Mohd. Javed was arrested on 10.03.2020 and petitioner/accused Zahid Choudhary was arrested on 21.08.2020.

The Learned Counsel for the Petitioner, argued that the petitioners and the complainant party belong to the same community and that the registration of FIR is the result of enmity because the father of victim had strong suspicion that petitioner-Mohd. Javed was instigating his daughter not to marry where she had been engaged. He further argued that the medical evidence does not support the version of victim. Further, as per the statements of victim and her father-complainant, deposed before the trial Court, no prima facie case is coming out against the petitioners herein. Learned counsel prayed that in case concession of bail is considered by this Court, the petitioners herein undertake to abide by all the terms and conditions which may be imposed by this Court.

The Learned Counsel for the Respondent, opposed the bail of petitioners, and averred that the charges have already been framed against the petitioners-accused on 08.03.2021. It is averred that petitioner-Mohd. Javed was enlarged on bail by the trial court but since he was not cooperating with the investigation and overlooked the instructions passed by the trial Court, as such the High Court cancelled the bail orders. It was further averred that the prosecution has already examined two witnesses, i.e., the prosecutrix/victim and her father in the case and that as per circumstances of the case, the offences are well proved against the petitioners-accused. It was brought to notice that admittedly, petitioner-Mohd. Javed was arrested on 10.03.2020 and he was accorded bail by the learned Sessions Judge on 30.03.2020 on the basis of medical report. However, the bail of Mohd. Javed came to be cancelled by this Court on 04.08.2020 and one of the grounds for cancellation of bail was that he was not cooperating with the investigation and overlooked the instructions passed by the trial Court. After the cancellation of bail on 04.08.2020, petitioner/accused Mohd. Javed is in judicial custody, whereas petitioner/accused Zahid Choudhary was arrested on 21.08.2020.

The High Court of Jammu & Kashmir and Ladakh at Jammu, after taking into accounts the facts, arguments, and perusing the documents, held that although the POCSO Act was enacted with the object to protect children from offences from sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for speedy trial of such offences and for matters connected therewith or incidental thereto, yet in the present case the victim in her statement recorded before the trial Court stated her age to be 19 years. Further, charges have already been framed and the prosecution has also examined the victim/prosecutrix as well as her father. Though it is alleged that the victim/prosecutrix was kidnapped by the accused persons on 11.02.2020 after 2 PM and she was found near her house in the fields early morning on the next date, i.e., 12.02.2020 in an unconscious condition, yet in her examination she did not certainly stated regarding commission of rape by the accused persons, even she did not recognized accused-Zahid Choudhary. Even, medical report opined that there was no positive evidence of physical assault or recent sexual assault on the basis of physical examination, further no marks of injury or violence was seen on any part of genitalia. The driver of the school bus in his statement recorded under Section 164 Cr.P.C. stated that after conclusion of the examination when he departed towards SP Smart School, the prosecutrix refused to go back to school and wanted to be dropped at Vijaypur. Further, even after filing of charge-sheet and examination of prosecutrix and her father, early trial would be a bleak possibility looking to the challenging period of COVID-19 pandemic, thus it was observed that keeping the accused to jail would not serve the cause of justice.

Therefore, keeping in view the fact that since there appears to be very little to support any allegation of serious violence or injury that would betray brutality in the offence alleged and that the petitioners-accused are not a repeat offenders nor do they have any prior or other criminal involvement as also there is no allegation of any threat having been extended by or on the petitioners’ behalf between the registration of FIR and their arrest, as such the Court found to deem it proper to allow both the bail applications and admit the petitioners to regular bail. Ordered accordingly. It was directed that the petitioners be released on bail subject to conditions.

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Judgement reviewed by Bhargavi

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