Jammu & Kashmir High Court
Sat Paul vs Ut Of J&K on 13 December, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 04.12.2024.
Pronounced on: 13.12.2024
Bail App No. 192/2021
CrlM No. 2224/2021, 2027/2021,
1212/2021
c/w
CRM(M) No. 312/2021
CrlM No. 933/2021, 934/2021, 935/2021
Bail App No. 192/2021 .....Appellant(s)/Petitioner(s)
Sat Paul,
aged 31 years
S/O Sh. Bal Krishan R/O Village
Tayari, Panchayat Halqa Tayote,
Tehsil Pouni, Reasi
Th. His Brother namely Ganesh Paul
S/O Sh. Bal Krishan R/O Village
Tayari, Panchayat Halqa Tayote,
Tehsil Pouni, Reasi
Through: Mr. P. N. Raina, Sr. Advocate with
Mr. J. A. Hamal, Advocate.
vs
1. UT of J&K ..... Respondent(s)
Th. SHO Police Station, Women Cell,
Gandhi Nagar, Jammu.
2. Shamo Devi,
D/O Late. Sh. Gian Chand R/O Phase
2, Mandlik Nagar, Paloura, Jammu
Through: Mr. P. D. Singh, Dy. AG for R-1
Mr. Dharam Vir, Advocate for R-2
CRM(M) No. 312/2021 .....Appellant(s)/Petitioner(s)
Sat Paul,
aged 31 years
S/O Sh. Bal Krishan R/O Village
Tayari, Panchayat Halqa Tayote,
Tehsil Pouni, Reasi
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 2
Through: Mr. P. N. Raina, Sr. Advocate with
Mr. J. A. Hamal, Advocate.
vs
1) UT of J&K Th. Commissioner ..... Respondent(s)
Secretary, Home Department, Civil
Secretariat, Jammu and Srinagar.
2) SHO, Janipur, Jammu
3) Shamo Devi,
D/O Late. Sh. Gian Chand R/O
Phase 2, Mandlik Nagar, Paloura,
Jammu
Through: Mr. P. D. Singh, Dy. AG for R-1 & 2
Mr. Dharam Vir, Advocate for R- 3
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
CRM(M) No. 312/2021
1. Through the medium of instant petition, the petitioner herein has
invoked the inherent power of this Court for quashing FIR No. 0071
dated 31.05.2021 registered with Police Station, Janipur for offences
under Sections 376 and 420 IPC along with order dated 29.05.2021
passed by the City Judge Magistrate, Jammu in the application titled as
“Shamo Devi vs. Sat Paul”.
2. The facts necessary for the disposal of the instant petition are that the
respondent 3 herein is stated to have filed an application under Section
156(3) of Code of Criminal Procedure before the Chief Judicial
Magistrate, Jammu for direction upon the respondent 2 herein for
registering a case against the accused/petitioner herein for commission
of offences under Sections 376 and 420 IPC whereupon the court of
Chief Judicial Magistrate Jammu transferred the said application to the
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 3
court of City Judge/JMIC, Jammu wherein the said court in terms of
order dated 29.05.2021, impugned in the instant petitioner directed
respondent 2 to investigate the case, consequent to which the
impugned FIR came to be registered.
3. The petitioner has maintained the instant petition on multiple grounds.
4. Response to the petition has been filed by the respondents.
5. In the reply filed by respondents 1 and 2, it is being stated that the
FIR under challenge came to be registered in Police Station, Women
Cell, Jammu in furtherance of the directions passed by the court of
City Judge/JMIC, Jammu passed in an application filed by the
complainant/respondent 3 herein under Section 156(3) of Code of
Criminal Procedure and after registration of the same, same was
transferred to the Police Station, Janipur and investigation came to be
set into motion and site plan of the place of occurrence came to be
prepared, statement of the respondent 3 recorded under Section 164
Cr. P.C., inasmuch as statements of other witnesses came to be
recorded and on the basis of the evidence collected by the
Investigating Officer, offences under Sections 376 and 420 IPC were
found to be established against the petitioner, while stating further that
the charge-sheet could not be presented before the competent court in
view of an interim order passed by this Court.
6. In the objections filed by the respondent 3 herein, it is being stated
that the accused/petitioner herein being a well connected person and a
member of belt force, in a well concluded criminal manner
fraudulently led the answering respondent to believe that he would
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 4
marry her and committed rape upon her by exercise of deceit upon her,
while denying the allegations that the petitioner herein is falsely
implicated in a fabricated case in order to get undue benefit from him.
It is further stated that the commission of offences by the
accused/petitioner herein is detailed out in detail in the complaint filed
by the complainant/answering respondent and that the
accused/petitioner herein allured the answering respondent to have
sexual relationship while making a false promise to marry her and
believing the said promise, the accused/petitioner herein would have
sexual relationship with her as and when he would be in Jammu and
that the FIR under challenge is not an abuse of process of law but is
rather upholding the majesty of law while reiterating that the
answering respondent came to be subjected to rape by the
accused/petitioner herein by playing worse kind of fraud upon her
besides physically, emotionally and socially destroying her life, while
also denying the allegation that the answering respondent threatened
the petitioner herein either herself or through any other person person,
denying to have demanded Rs. 25,00,000/- from him and that the
accused/petitioner herein destroyed her life and got married to another
woman and in furtherance of his illegal acts got the child, conceived
by the answering respondent, aborted and that the complaint lodged by
her is true and not a modified one and that the accused petitioner when
came to know about the complaint filed against him in the Police
Station, approached the answering respondent and assured her again
that he would marry her soon and even pleaded her to withdraw the
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 5
complaint and that the petitioner herein even swore an affidavit to this
effect on the basis of which the said complaint was not pursued by the
answering respondent and that the compromise arrived at in this regard
also shows that the accused/petitioner herein had duped the answering
respondent and that the affidavit sworn by the accused/petitioner in
fact is an admission of guilt of the accused/petitioner and that the
petitioner continued to play fraud with the answering respondent,
duped her and raped her and committed the offences covered in the
FIR.
Heard learned counsel for the parties and perused the record as
also the CD file produced by the counsel for the respondent 1 and
2.
7. Mr. P. N. Raina, learned senior Advocate appearing for the
petitioner, notwithstanding the multiple grounds of challenge urged in
the petition would continue his submission qua the ground that the
contents of the impugned FIR even if taken to be true would reveal
that no offence under Section 376 IPC read with Section 420 IPC is
made out against the petitioner and that the sexual relationship
between the petitioner herein and respondent 3 herein is a relationship
between two adult persons and the same does not fall within the ambit
and scope of Section 376 IPC and that the facts would clearly
demonstrate that there has been a long standing relationship between
the petitioner and respondent 3 herein which did not culminate into a
marriage and as such, the offence under Section 376 IPC is not made
out and in support thereof would heavily rely on the judgments of the
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 6
Apex Court passed in case titled as Pramod Suryabhan Pawar vs.
State of Maharashtra and another reported in (2019) 9 SCC 608,
Sonu Alias Subhash Kumar vs. State of Uttar Pradesh and
another reported in (2021) 18 SCC 517 and judgments passed by this
Court in cases titled as Syed Shahid Hamdani vs. UT of J&K and
another reported in 2023 SCC Online J&K 116 and Sandeep Singh
Vs. Union Territory of J&K decided on 04.08.2021.
8. Before proceeding to advert to the submission of Mr. P. N. Raina and
also the case set up by the respondents in the objections filed to the
petition, it would be appropriate to reproduce hereunder the contents
of complaint/application filed by the respondent 3 herein before the
court below pursuant to direction of which, the impugned FIR came to
be registered:-
i. That the applicant/complainant belongs to a very poor family
and is originally resident of rural area of village Balshama,
Tehsil Sunderbani District Rajouri and since 2018, the
complainant is residing at Paloura, Jammu and presently at
Phase-02 Mandlik Nagar, Paloura, Jammu in a rented
accommodation.
ii. That the applicant/complainant’s father died in June 2002
and thereafter, the applicant/complainant being the elder
member amongst 6 sisters and one brother fastened with
responsibility to look after her mother, five sisters and a
brother, as such, the complainant could not get herself
married in time.
iii. That in the year 2016, the aforesaid accused/culprit namely
Sat Paul started making calls on the mobile phone of
applicant/complainant regularly which was initially ignored
by the applicant/complainant but the aforesaid culprit carried
on making repeated calls on the mobile phone of
applicant/complainant as such the applicant/complainant
brought the matter in the notice of her mother and sisters and
only then the applicant/complainant attended the call of
aforesaid culprit namely Sat Paul in presence of her family
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 7members whereby aforesaid culprit disclosed his identity as
Sat Paul of JAK-Rifles and expressed his desire to meet the
applicant/complainant in presence of her mother but the
applicant/complainant declined to meet him, however, after a
gap of 2-3 months, suddenly the said Sat Paul visited the
residence of applicant/complainant at village Balshama,
Tehsil Sunderbani, District Rajouri and proposed the
applicant/complainant in front of her mother and two sisters
for marriage and he also suggested the
applicant/complainant’s mother to send the
applicant/complainant to Jammu for some job.
iv. That since the applicant/complainant’s younger sister namely
Rekha Devi was employee of BSF and in the year 2018, she
was posted at Jammu and used to reside in a rented
accommodation situated near Gopal Mandir Suraksha Vihar,
Paloura Top, Jammu, as such, in June 2018 the
applicant/complainant shifted to Paloura, Jammu and started
a private job at Raghunath Bazar, Jammu and in July 2018
the aforesaid culprit visited therein and stayed with the
applicant/complainant at Paloura, Jammu whereby the
aforesaid culprit tried to forcibly sex with the
applicant/complainant which was objected by the
applicant/complainant but the aforesaid culprit gave false
assurance to marry the applicant/complainant shortly by
performing a well arranged marriage and thus, on the
promise of marriage, the aforesaid culprit have sexually
intercourse with the applicant/complainant which the
aforesaid culprit repeated time and again as and when he
used to come on leave whereby he used to visit the
applicant/complainant in rented accommodation at Paloura,
Jammu to have sexual intercourse with her on the promise to
marry her.
v. That on 4th day of August, 2020, the culprit namely Naik Sat
Paul again visited the applicant/complainant in rented
accommodation then at JK Colony, Paloura, Jammu and on
the false promise to marry the complainant have repeated
sexual intercourse with the applicant/complainant and
thereafter, he had gone to New Delhi to join his duty whereby
the applicant/complainant became pregnant and thus, the
applicant/complainant immediately informed the aforesaid
culprit about her pregnancy as a result of intercourse by him.
The aforesaid culprit suggested the applicant/complainant to
avail the anti-pregnancy dose to terminate the pregnancy
whereby the aforesaid culprit transferred an amount of Rs.
2000/- in the saving account of applicant/complainant no.
0852040100001032 J&K Bank Branch Balshama, Sunderbani
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 8and also sent the name of medicine MOFETIL-KIT medicine
to terminate her pregnancy. It is relevant to mention here that
the aforesaid culprit earlier also used to transfer money in the
aforesaid account of the applicant/complainant to win her
confidence and further, on 04.08.2020, the
applicant/complainant has also taken selfie with the aforesaid
culprit on her mobile while on the bed with the aforesaid
culprit which is in possession of the applicant/complainant.
vi. That the aforesaid culprit was in regular touch with the
applicant/complainant telephonically and further, in the
month of December 2020, the aforesaid culprit again visited
the applicant/complainant at Paloura, Jammu in morning
hours and he told that he has to purchase bike. He have
repeated sexual intercourse with the applicant/complainant
on the promise to perform Court Marriage with the
applicant/complainant very soon and further assured that next
year he will avail 2 months marriage leave to solemnize
marriage with the applicant/complainant.
vii. That the applicant/complainant is continuously insisted upon
the aforesaid culprit many times to perform marriage with her
as per the promise but he always avoided the same on one
pretext or other.
viii. That on 13.04.2021, the applicant/complainant has gone to
Akhnoor from Mandlik Nagar, Paloura, Jammu to meet her
younger sister namely Rekha Devi whereby the
applicant/complainant received a phone call of aforesaid
culprit namely Naik Sat Paul whereby he disclosed that he
had visited his rented accommodation at Phase 2, Mandlik
Nagar, Paloura Jammu as he came on leave and want to have
sexual intercourse with the applicant/complainant but the
applicant/complainant refused to have any further sexual
intercourse with him unless and until he marries with the
applicant/complainant as promised by him and thereafter,
since 14.04.2021, the aforesaid culprit blocked the mobile
number of the applicant/complainant deliberately to avoid her
contact and now, he is planning to marry with some other girl
after ruining the life of applicant/complainant.
ix. That the aforesaid culprit namely Naik Sat Paul was knowing
well that the applicant/complainant is not his wife and
further, he also does not want to marry her from the very
beginning yet under the false promise of marrying her, he had
sexual intercourse repeatedly with the applicant/complainant
by cheating because he has obtained consent of the
applicant/complainant under misconception of fact to marry
her and now, the aforesaid culprit has declined to marry the
complainant, as such, under the false promise to marry with
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 9the applicant/complainant, the aforesaid culprit had sexual
intercourse repeatedly with the applicant/complainant by
dishonestly inducement and cheating.
x. That the applicant/complainant being a victim of rape was
under mental shock and trauma along with her family and
was thinking a lot before making the present complaint
because it involves the prestige and reputation of family of the
applicant/complainant and also, her future life.
xi. That the applicant/complainant had approached the Police of
Police Station, Janipur for registration and investigation of
the case, but the Police has neither registered the case nor
investigated the matter and left the accused without any
action. The copy of application submitted to SHO, Janipur is
attached herewith.
xii. That on 04.05.2021, the complainant appeared along with an
application before the SSP, Jammu and the SSP Jammu
marked the application and directed the SHO Janipur to get
the facts verified and take necessary action under law and
report but Police of Police Station, Janipur has neither
registered the case nor Hon’ble Court for appropriate
remedy. The copy of application to SSP Jammu is attached
herewith.
xiii. That on 06.05.2021, Bal Krishan, the father of Naik Sat Paul
approached the applicant/complainant and offered to pay
rupees 05 Lakh, that in case the applicant/complainant
withdraw the complaint and allow his son to perform
marriage with some other lady.
xiv. That the aforesaid culprit namely Naik Sat Paul have
committed a heinous offence punishable U/s 376/420 IPC
against the accused person which he has committed
intentionally, deliberately against the complainant and after
investigation submit the charge sheet before the court of law
and the complainant shall produce the witnesses before the
Investigating Officer. Dated 12 May 2021 complainant
through counsel.
9. Before proceeding further in the matter, it would be profitable to refer
to the ambit and scope of inherent power vested in this Court under
Section 528 BNSS pari metaria with Section 482 Cr.P.C. hereunder,
which in fact has been dealt with by the Apex Court in a series of
judgments including in case titled “Neeharika Infrastructure Pvt.
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 10
Ltd. vs. State of Maharastra & Ors” reported in AIR 2021 SC 1918
wherein at Para 7 following has been laid down:-
7. While considering the aforesaid issue, law on the exercise
of powers by the High Court under Section 482 Cr.P.C.
and/or under Article 226 of the Constitution of India to
quash the FIR/complaint and the parameters for exercise of
such powers and scope and ambit of the power by the High
Court under Section 482 Cr.P.C. and/or under Article 226 of
the Constitution of India are required to be referred to as the
very parameters which are required to be applied while
quashing the FIR will also be applicable while granting
interim stay/protection.
7.1 The first case on the point which is required to be
noticed is the decision of this Court in the case of R. P.
Kapur (supra). While dealing with the inherent powers of the
High Court under Section 561-A of the earlier Code (which
is pari materia with Section 482 of the Code), it is observed
and held that the inherent powers of the High Court under
Section 561 of the earlier Code cannot be exercised in
regard to the matters specifically covered by the other
provisions of the Code; the inherent jurisdiction of the High
Court can be exercised to quash proceedings in a proper
case either to prevent the abuse of the process of any court
or otherwise to secure the ends of justice; ordinarily
criminal proceedings instituted against an accused person
must be tried under the provisions of the Code, and the High
Court would be reluctant to interfere with the said
proceedings at an interlocutory stage. After observing this,
thereafter this Court then carved out some exceptions to the
above-stated rule, which are as under:
“(i) Where it manifestly appears that there is a legal bar
against the institution or continuance of the criminal
proceeding in respect of the offence alleged. Absence of the
requisite sanction may, for instance, furnish cases under
this category.
(ii) Where the allegations in the first information report or
the complaint, even if they are taken at their face value and
accepted in their entirety, do not constitute the offence
alleged; in such cases no question of appreciating evidence
arises; it is a matter merely of looking at the complaint or
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 11the first information report to decide whether the offence
alleged is disclosed or not.
(iii) Where the allegations made against the accused
person do constitute an offence alleged but there is either
no legal evidence adduced in support of the case or the
evidence adduced clearly or manifestly fails to prove the
charge. In dealing with this class of cases it is important to
bear in mind the distinction between a case where there is
no legal evidence or where there is evidence which is
manifestly and clearly inconsistent with the accusation
made and cases where there is legal evidence which on its
appreciation may or may not support the accusation in
question.
In exercising its jurisdiction under Section 561- A the High
Court would not embark upon an enquiry as to whether the
evidence in question is reliable or not. That is the function of
the trial Magistrate, and ordinarily it would not be open to
any party to invoke the High Court’s inherent jurisdiction
and contend that on a reasonable appreciation of the
evidence the accusation made against the accused would not
be sustained.”
7.2 In the case of Kurukshetra University (supra), this
Court observed and held that inherent powers under Section
482 Cr.P.C. do not confer an arbitrary jurisdiction on the
High Court to act according to whim or caprice; that
statutory power has to be exercised sparingly with
circumspection and in the rarest of rare cases. In the case
before this Court, the High Court quashed the first
information report filed by the Kurukshetra University
through Warden and that too without issuing notice to the
University, in exercise of inherent powers under Section
482 Cr.P.C. This Court noticed and observed that the High
Court was not justified in quashing the FIR when the police
had not even commenced investigation into the complaint
filed by the Warden of the University and no proceedings
were at all pending before any Court in pursuance of the
FIR.
7.3 Then comes the celebrated decision of this Court in the
case of Bhajan Lal (supra). In the said decision, this Court
considered in detail the scope of the High Court powers
under Section 482 Cr.P.C. and/or Article 226 of the
Constitution of India to quash the FIR and referred to
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 12
several judicial precedents and held that the High Court
should not embark upon an inquiry into the merits and
demerits of the allegations and quash the proceedings
without allowing the investigating agency to complete its
task. At the same time, this Court identified the following
cases in which FIR/complaint can be quashed:
“102.(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated
under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the Act concerned
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the Act
concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 13maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
7.4 In the case of Golconda Lingaswamy (supra), after
considering the decisions of this Court in the cases of R. P.
Kapur (supra) and Bhajan Lal (supra) and other decisions
on the exercise of inherent powers by the High Court
under Section 482 Cr.P.C., in paragraphs 5, 7 and 8, it is
observed and held as under:
“5. Exercise of power under Section 482 of the Code in a
case of this nature is the exception and not the rule. The
section does not confer any new powers on the High
Court. It only saves the inherent power which the Court
possessed before the enactment of the Code. It envisages
three circumstances under which the inherent
jurisdiction may be exercised, namely: (i) to give effect
to an order under the Code, (ii) to prevent abuse of the
process of court, and (iii) to otherwise secure the ends of
justice. It is neither possible nor desirable to lay down
any inflexible rule which would govern the exercise of
inherent jurisdiction.
No legislative enactment dealing with procedure can
provide for all cases that may possibly arise. Courts,
therefore, have inherent powers apart from express
provisions of law which are necessary for proper
discharge of functions and duties imposed upon them by
law. That is the doctrine which finds expression in the
section which merely recognises and preserves inherent
powers of the High Courts.
All courts, whether civil or criminal, possess in the
absence of any express provision, as inherent in their
constitution, all such powers as are necessary to do the
right and to undo a wrong in course of administration of
justice on the principle quando lex aliquid alique
concedit, conceditur et id sine quo res ipsa esse non
potest (when the law gives a person anything, it gives
him that without which it cannot exist). While exercising
powers under the section, the Court does not function as
a court of appeal or revision. Inherent jurisdiction under
the section though wide has to be exercised sparingly,
carefully and with caution and only when such exercise
is justified by the tests specifically laid down in the
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 14section itself. It is to be exercised ex debito justitiae to
do real and substantial justice for the administration of
which alone courts exist. Authority of the court exists for
advancement of justice and if any attempt is made to
abuse that authority so as to produce injustice, the court
has power to prevent such abuse. It would be an abuse
of the process of the court to allow any action which
would result in injustice and prevent promotion of
justice.
In exercise of the powers court would be justified to
quash any proceeding if it finds that initiation or
continuance of it amounts to abuse of the process of
court or quashing of these proceedings would otherwise
serve the ends of justice. When no offence is disclosed by
the complaint, the court may examine the question of
fact. When a complaint is sought to be quashed, it is
permissible to look into the materials to assess what the
complainant has alleged and whether any offence is
made out even if the allegations are accepted in toto.
7. In dealing with the last category, it is important to
bear in mind the distinction between a case where there
is no legal evidence or where there is evidence which is
clearly inconsistent with the accusations made, and a
case where there is legal evidence which, on
appreciation, may or may not support the accusations.
When exercising jurisdiction under Section 482 of the
Code, the High Court would not ordinarily embark upon
an enquiry whether the evidence in question is reliable
or not or whether on a reasonable appreciation of it
accusation would not be sustained. That is the function
of the trial Judge. Judicial process, no doubt should not
be an instrument of oppression, or, needless harassment.
Court should be circumspect and judicious in exercising
discretion and should take all relevant facts and
circumstances into consideration before issuing process,
lest it would be an instrument in the hands of a private
complainant to unleash vendetta to harass any person
needlessly. At the same time the section is not an
instrument handed over to an accused to short-circuit a
prosecution and bring about its sudden death…..
8. As noted above, the powers possessed by the High
Court under Section 482 of the Code are very wide and
the very plenitude of the power requires great caution in
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 15its exercise. Court must be careful to see that its decision
in exercise of this power is based on sound principles.
The inherent power should not be exercised to stifle a
legitimate prosecution.
High Court being the highest court of a State should
normally refrain from giving a prima facie decision in a
case where the entire facts are incomplete and hazy,
more so when the evidence has not been collected and
produced before the Court and the issues involved,
whether factual or legal, are of magnitude and cannot be
seen in their true perspective without sufficient material.
Of course, no hard- and-fast rule can be laid down in
regard to cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at
any stage. [See Janata Dal v. H. S. Chowdhary [(1992)
4 SCC 305: 1993 SCC (Cri) 36 :AIR 1993 SC 892] and
Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1
: (1964) 1 Cri LJ 1] .]It would not be proper for the High Court to analyse the
case of the complainant in the light of all probabilities in
order to determine whether a conviction would be
sustainable and on such premises, arrive at a conclusion
that the proceedings are to be quashed.
It would be erroneous to assess the material before it
and conclude that the complaint cannot be proceeded
with. In a proceeding instituted on complaint, exercise of
the inherent powers to quash the proceedings is called
for only in a case where the complaint does not disclose
any offence or is frivolous, vexatious or oppressive. If
the allegations set out in the complaint do not constitute
the offence of which cognisance has been taken by the
Magistrate, it is open to the High Court to quash the
same in exercise of the inherent powers under Section
482 of the Code. It is not, however, necessary that there
should be meticulous analysis of the case before the trial
to find out whether the case would end in conviction or
acquittal.
The complaint/FIR has to be read as a whole. If it
appears that on consideration of the allegations in the
light of the statement made on oath of the complainant
or disclosed in the FIR that the ingredients of the offence
or offences are disclosed and there is no material to
show that the complaint/FIR is mala fide, frivolous or
Bail App No. 192/2021
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CRM(M) No. 312/2021 16vexatious, in that event there would be no justification
for interference by the High Court. When an information
is lodged at the police station and an offence is
registered, then the mala fides of the informant would be
of secondary importance. It is the material collected
during the investigation and evidence led in court which
decides the fate of the accused person. The allegations of
mala fides against the informant are of no consequence
and cannot by themselves be the basis for quashing the
proceeding.”
7.5 In the case of Zandu Pharmaceutical Works Ltd. (supra),
in paragraph 11, this Court has observed and held as under:
“11. … the powers possessed by the High Court under
Section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its
exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The
inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the highest
court of a State should normally refrain from giving a
prima facie decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has not
been collected and produced before the court and the
issues involved, whether factual or legal, are of
magnitude and cannot be seen in their true perspective
without sufficient material. of course, no hard-and-fast
rule can be laid down in regard to cases in which the
High Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage.
It would not be proper for the High Court to analyse the
case of the complainant in the light of all probabilities in
order to determine whether a conviction would be
sustainable and on such premise arrive at a conclusion
that the proceedings are to be quashed. It would be
erroneous to assess the material before it and conclude
that the complaint cannot be proceeded with. In a
proceeding instituted on complaint, exercise of the
inherent powers to quash the proceedings is called for
only in a case where the complaint does not disclose any
offence or is frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not constitute the
offence of which cognizance has been taken by the
Magistrate, it is open to the High Court to quash the
Bail App No. 192/2021
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CRM(M) No. 312/2021 17same in exercise of the inherent powers under Section
482 of the Code.
It is not, however, necessary that there should be
meticulous analysis of the case before the trial to find
out whether the case would end in conviction or
acquittal. The complaint has to be read as a whole. If it
appears that on consideration of the allegations in the
light of the statement made on oath of the complainant
that the ingredients of the offence or offences are
disclosed and there is no material to show that the
complaint is mala fide, frivolous or vexatious, in that
event there would be no justification for interference by
the High Court. When an information is lodged at the
police station and an offence is registered, then the mala
fides of the informant would be of secondary
importance. It is the material collected during the
investigation and evidence led in court which decides the
fate of the accused person. The allegations of mala fides
against the informant are of no consequence and cannot
by themselves be the basis for quashing the
proceedings.”
7.6 In the case of Sanapareddy Maheedhar Seshagiri
(supra), in paragraph 31, it is observed and held as under:
“31. A careful reading of the abovenoted judgments
makes it clear that the High Court should be extremely
cautious and slow to interfere with the investigation
and/or trial of criminal cases and should not stall the
investigation and/or prosecution except when it is
convinced beyond any manner of doubt that FIR does
not disclose commission of any offence or that the
allegations contained in FIR do not constitute any
cognizable offence or that the prosecution is barred by
law or the High Court is convinced that it is necessary to
interfere to prevent abuse of the process of the Court.
In dealing with such cases, the High Court has to bear in
mind that judicial intervention at the threshold of the
legal process initiated against a person accused of
committing offence is highly detrimental to the larger
public and societal interest. The people and the society
have a legitimate expectation that those committing
offences either against an individual or the society are
expeditiously brought to trial and, if found guilty,
Bail App No. 192/2021
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CRM(M) No. 312/2021 18adequately punished. Therefore, while deciding a
petition filed for quashing FIR or complaint or
restraining the competent authority from investigating
the allegations contained in FIR or complaint or for
stalling the trial of the case, the High Court should be
extremely careful and circumspect.
If the allegations contained in FIR or complaint disclose
commission of some crime, then the High Court must
keep its hands off and allow the investigating agency to
complete the investigation without any fetter and also
refrain from passing order which may impede the trial.
The High Court should not go into the merits and
demerits of the allegations simply because the petitioner
alleges malus animus against the author of FIR or the
complainant. The High Court must also refrain from
making imaginary journey in the realm of possible
harassment which may be caused to the petitioner on
account of investigation of FIR or complaint. Such a
course will result in miscarriage of justice and would
encourage those accused of committing crimes to repeat
the same. However, if the High Court is satisfied that the
complaint does not disclose commission of any offence
or prosecution is barred by limitation or that the
proceedings of criminal case would result in failure of
justice, then it may exercise inherent power
under Section 482 Cr.P.C.”
7.7 In the case of Arun Gulab Gawali (supra), this Court set
aside the order passed by the High Court quashing the
criminal complaint/FIR which was even filed by the
complainant. In the case before this Court, prayer for
quashing the FIR before the High Court was by the
complainant himself and the High Court quashed the
FIR/complaint in exercise of the powers under Section
482 Cr.P.C. Quashing and setting aside the judgment and
order passed by the High Court quashing the FIR, this Court
in paragraphs 13 and 27 to 29 has observed as under:
“13. The power of quashing criminal proceedings has to
be exercised very sparingly and with circumspection and
that too in the rarest of rare cases and the Court cannot
be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of allegations
made in the FIR/complaint, unless the allegations are so
patently absurd and inherently improbable so that no
Bail App No. 192/2021
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CRM(M) No. 312/2021 19prudent person can ever reach such a conclusion. The
extraordinary and inherent powers of the Court do not
confer an arbitrary jurisdiction on the Court to act
according to its whims or caprice. However, the Court,
under its inherent powers, can neither intervene at an
uncalled for stage nor can it “soft- pedal the course of
justice” at a crucial stage of investigation/proceedings.
The provisions of Articles 226, 227 of the Constitution of
India and Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter called as “Cr.P.C”) are a
device to advance justice and not to frustrate it. The
power of judicial review is discretionary, however, it
must be exercised to prevent the miscarriage of justice
and for correcting some grave errors and to ensure that
stream of administration of justice remains clean and
pure.
However, there are no limits of power of the Court, but
the more the power, the more due care and caution is to
be exercised in invoking these powers. (Vide State of W.
B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982
SCC (Cri) 283 : AIR 1982 SC 949] , Pepsi Foods Ltd. v.
Special Judicial Magistrate [(1998) 5 SCC 749 : 1998
SCC (Cri) 1400] , G. Sagar Suri v. State of U. P.
[(2000) 2 SCC 636 : 2000 SCC (Cri) 513 : AIR 2000 SC
754] and Ajay Mitra v. State of M. P. [(2003) 3 SCC 11
: 2003 SCC (Cri) 703] )
xxx xxx xxx
27. The High Court proceeded on the perception that as
the complainant himself was not supporting the
complaint, he would not support the case of the
prosecution and there would be no chance of conviction,
thus the trial itself would be a futile exercise. Quashing
of FIR/complaint on such a ground cannot be held to be
justified in law. Ordinarily, the Court of Session is
empowered to discharge an accused under Section
227 Cr.P.C even before initiating the trial.
The accused can, therefore, move the trial court itself for
such a relief and the trial court would be in a better
position to analyze and pass an order as it is possessed
of all the powers and the material to do so. It is,
therefore, not necessary to invoke the jurisdiction
under Section 482 Cr.P.C for the quashing of a
Bail App No. 192/2021
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CRM(M) No. 312/2021 20prosecution in such a case. The reliance on affidavits by
the High Court would be a weak, hazy and unreliable
source for adjudication on the fate of a trial. The
presumption that an accused would never be convicted
on the material available is too risky a proposition to be
accepted readily, particularly in heinous offences like
extortion.
28. A claim founded on a denial by the complainant even
before the trial commences coupled with an allegation
that the police had compelled the lodging of a false FIR,
is a matter which requires further investigation as the
charge is levelled against the police. If the prosecution is
quashed, then neither the trial court nor the
investigating agency has any opportunity to go into this
question, which may require consideration. The State is
the prosecutor and all prosecution is the social and legal
responsibility of the State. An offence committed is a
crime against society and not against the victim alone.
The victim under undue pressure or influence of the
accused or under any threat or compulsion may resile
back but that would not absolve the State from bringing
the accused to book, who has committed an offence and
has violated the law of the land.
29. Thus, while exercising such power the Court has to
act cautiously before proceeding to quash a prosecution
in respect of an offence which hits and affects the society
at large. It should be a case where no other view is
possible nor any investigation or inquiry is further
required. There cannot be a general proposition of law,
so as to fit in as a straitjacket formula for the exercise of
such power. Each case will have to be judged on its own
merit and the facts warranting exercise of such power.
More so, it was not a case of civil nature where there
could be a possibility of compromise or involving an
offence which may be compoundable under Section
320 Cr.P.C, where the Court could apply the ratio of
Madhavrao Jiwajirao Scindia [(1988) 1 SCC 692 :
1988 SCC (Cri) 234 : AIR 1988 SC 709] .”
What emanates from the above position of law enunciated by the Apex
Court in the judgment (Supra), in that the Apex Court has, inter alia,
held that when a prayer for quashing of a FIR is made by an accused,
Bail App No. 192/2021
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CRM(M) No. 312/2021 21
the Court exercising power under Section Section 482 Cr. P.C. (now
Section 528 BNSS) has only to consider whether the allegations in the
FIR disclose commission of a cognizable offence or not and that the
High Court must keep its hands off and allow the investigating agency
to complete the investigation without any fetter and also refrain from
passing any order which may impede the trial and also the High Court
should not go into the merits and demerits of the allegations simply
because the accused alleges malus animus against the author or FIR or
the complainant and that quashment of FIR has to be an exception and
a rarity than an ordinary rule as the inherent power of the Court do not
confer an arbitrary power or jurisdiction upon the High Court.
10. Having regard to the aforesaid position of law and the contents of the
complaint/application (Supra) of the respondent 3 filed under Section
156(3) of Cr.P.C including the impugned FIR, inasmuch as the
evidence collected by the investigating agency and submissions of the
counsel for the petitioner herein, the moot question that would beg
consideration of this Court would be as to whether the present case is a
case of mere breach of promise to marry or that the sexual relation
between the petitioner and the respondent 3 was not consensual, but
consent obtained on misconception of facts.
11. The moot question for consideration of this Court would be as to
whether the exercise of inherent power is warranted in the instant case.
In order to address to the aforesaid question, it would be pertinent and
significant to refer to the provisions of Section 375 IPC, Section 90
Bail App No. 192/2021
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CRM(M) No. 312/2021 22
IPC and Section 114-A of Evidence Act being relevant herein, which
for the sake of brevity are extracted and reproduced hereunder:
Section 375. Rape
A man is said to commit “rape” if he’
(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do so
with him or any other person; or
(b) Inserts, to any extent, any object or any part of the
body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any
other person; or
(c) Manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any
part of the body of such woman or makes her to do so
with him or any other person; or
(d) Applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person,
Under the circumstances falling under any of the
following seven descriptions;
Firstly- Against her will.
Secondly- Without her consent.
Thirdly- With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly- With her consent, when the man knows that he
is not her husband and that her consent is given because
she believes that he is another man to whom she is or
believes herself to be lawfully married.
Fifthly- With her consent when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication
or the administration by him personally understand the
nature and consequences of that to which she gives
consent.
Sixthly- With or without her consent, when she is under
eighteen years of age.
Seventhly- When she is unable to communicate consent.
Explanation 1- For the purpose of this section, “vagina”
shall also include labia major.
Explanation 2- Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any
form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:
Bail App No. 192/2021
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CRM(M) No. 312/2021 23Section 90
Consent known to be given under fear or misconception-
A consent is not such a consent as is intended by any
section of this Code, if the consent is given by a person
under fear of injury, or under a misconception of fact, and
if the person doing the act knows, or has reason to
believe, that the consent was given in consequence of such
fear or misconception; or
Consent of insane person- If the consent is given by a
person who, from unsoundness of mind, or intoxication, in
unable to understand the nature and consequence of that
to which he gives his consent; or
Consent of child- unless the contrary appears from the
context, if the consent is given by a person who is under
twelve years of age.
Section 114-A
Presumption as to absence of consent in certain
prosecution for rape- In a prosecution for rape under
clause (a) or clause (b) or clause (c) or clause (d) or
clause (e) or clause (g) of sub-section (2) of Section 376
of the Indian Penal Code (45 of 1860), where sexual
intercourse by the accused is proved and the question is
whether it was without the consent of the woman alleged
to have been raped and she states in her evidence before
the court that she did not consent, the court shall presume
that she did not consent.
Explanation- In this section, “sexual intercourse” shall
mean any of the acts mentioned in clauses (a) to (d) of
Section 375 of the Indian Penal Code (45 of 1860)]A reference in regard to above to the judgment of the Apex Court in
case titled as Kaini Rajan vs. State of Kerala reported in (2013) 9
SCC 113 would also be relevant herein, wherein at para 12 following
has been observed:
“Section 375 IPC defines the expression “rape”, which
indicates that the first clause operates, where the woman
is in possession of her senses, and therefore, capable of
consenting but the act is done against her will; and
second, where it is done without her consent; the third,
fourth and fifth, when there is consent, but it is not such a
consent as excuses the offender, because it is obtained by
putting her on any person in whom she is interested in
Bail App No. 192/2021
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CRM(M) No. 312/2021 24fear of death or of hurt. The expression “against her will”
means that the act must have been done in spite of the
opposition of the woman. An inference as to consent can
be drawn if only based on evidence or probabilities of the
case. “Consent” is also stated to be an act of reason
coupled with deliberation. It denotes an active will in the
mind of a person to permit the doing of an act complained
of.
Section 90 IPC refers to the expression “consent”.
Section 90, though, does not define “consent”, but
describes what is not consent. “Consent”, for the purpose
of Section 375, requires voluntary participation not only
after the exercise of intelligence based on the knowledge
of the significance and moral quality of the act but after
having fully exercised the choice between resistance and
assent. Whether there was consent or not, is to be
ascertained only on a careful study of all relevant
circumstances.”
A further reference to the judgment passed by the Apex Court in case
titled as Deepak Gulati vs. State of Haryana reported in (2013) 7
SCC 675 would also be relevant herein, wherein at Para 21 following
has been held:
“21. Consent may be expressed or implied, coerced or
misguided, obtained willingly or through deceit. Consent
is an act of reason, accompanied by deliberation, the
mind weighing, as in a balance, the good and evil on each
side. There is a clear distinction between rape and
consensual sex and in a case like this, the court must very
carefully examine whether the accused had actually
wanted to marry the victim, or had mala fide motives, and
had made a false promise to this effect only to satisfy his
lust, as the latter falls within the ambit of cheating or
deception. There is a distinction between the mere breach
of a promise, and not fulfilling a false promise. Thus, the
court must examine whether there was made, at an early
stage a false promise of marriage by the accused; and
whether the consent involved was given after wholly
understanding the nature and consequences of sexual
indulgence………..”
Bail App No. 192/2021
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CRM(M) No. 312/2021 25
A further reference to the judgment of the Apex Court passed in case
titled as Dhruvaram Murlidhar Sonar vs. State of Maharashtra
reported in (2019) 18 SCC 191 would also be relevant herein, wherein
at Para 23 following has been held:
“23. Thus, there is a clear distinction between rape and
consensual sex. The court, in such cases, must very
carefully examine whether the complainant had actually
wanted to marry the victim or had mala fide motives and
had made a false promise to this effect only to satisfy his
lust, as the later falls within the ambit of cheating or
deception. There is also a distinction between mere
breach of a promise and not fulfilling a false promise. If
the accused has not made the promise with the sole
intention to seduce the prosecutrix to indulge in sexual
acts, such an act would not amount to rape. There may be
a case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the
accused and not solely on account of the misconception
created by accused, or where an accused, on account of
circumstances which he could not have foreseen or which
were beyond his control, was unable to marry her despite
having every intention to do. Such cases must be treated
differently. If the complainant had any mala fide intention
and if he had clandestine motives, it is a clear case of
rape. The acknowledged consensual physical relationship
between the parties would not constitute an offence
under Section 376 of the IPC.”
Thus, the sum and substance of the aforesaid decisions emerging
therefrom is that if it is established and proved that from the
inception the accused who gave the promise to the prosecutrix to
marry did not have any intention to marry and the prosecutrix gave the
consent for sexual intercourse on such an assurance by the accused
that he would marry her, such a consent can be said to be a consent
obtained by misconception of fact as per Section 90 IPC and such a
consent would not excuse the offender and such an offender can be
Bail App No. 192/2021
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CRM(M) No. 312/2021 26
said to have committed the rape as defined under Section 375 IPC and
can be convicted for the offence under Section 376 IPC.
Furthermore it is also manifest from above position of law that
whether consent given by the prosecutrix to sexual intercourse is
voluntary or whether it is given under misconception of fact depends
on the facts of each case and in considering the question of consent,
the Court is bound to consider the evidence before it and the
surrounding circumstances before reaching a conclusion.
12. Reverting back to the case in hand, record tends to show that the
respondent 3 herein has alleged that the petitioner committed rape
upon her multiple times while making regular promise to marry her
and she lately came to know that the petitioner has even got married to
one Priya D/o Yash Pal R/o Katwari, Kalakote, Rajouri.
Perusal of the CD file produced by the counsel for the official
respondents reveals that the Investigating Officer has gathered
evidence, pointing to the involvement of the petitioner in the
commission of alleged offence of rape covered in the FIR.
Besides above position obtaining in the matter, a plain reading of the
FIR manifestly demonstrates and discloses commission of alleged
offences by the petitioner herein.
13. Thus, under these circumstances, at the threshold stage, it cannot be
decided by this Court, in exercise of inherent power, as to whether the
consent was given voluntarily by the complainant/respondent 3 herein
or that it was given under misconception of facts, in that, a decision
thereon the said factual aspect of the case could be rendered after the
Bail App No. 192/2021
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CRM(M) No. 312/2021 27
case is put to trial and the parties would bring evidence on record. In
short, the said question is not a threshold question, which could be
decided by this Court in exercise of inherent power.
14. Having regard to what has been observed, considered and analysed
hereinabove, inasmuch as the law laid down by the Apex Court in
Neeharika Infrastructure Pvt. Ltd. Judgment (Supra), this Court is
not inclined to exercise inherent jurisdiction in the backdrop of the
aforesaid facts and circumstances of the case.
15. The judgments relied upon by the counsel for the petitioner in support
of the case set up in the instant petition referred in the preceding paras,
in view of the aforesaid analysis pale into insignificance and do not
lend any support to the case of the petitioner.
16. Resultantly, the instant petition fails and is accordingly dismissed
along with the connected applications.
17. It is however made clear that any observation made hereinabove shall
not be construed to be expression of any opinion about the guilt or
innocence of the petitioner herein and any such observations shall be
deemed to have been made only for the purpose of disposal of the
instant petition.
Bail App No. 192/2021
1. In the instant petition, the petitioner herein has sought bail in
anticipation of his arrest in FIR No. 0071 dated 31.05.2021 registered
with Police Station, Janipur for offences under Sections 376 and 420
IPC.
Bail App No. 192/2021
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CRM(M) No. 312/2021 28
2. It is significant to mention here that the FIR wherein the bail is being
sought by the petitioner herein came to be registered upon a
complaint/application filed by the respondent 2 herein and pursuant to
the directions passed by the City Judge Magistrate, Jammu in terms of
order dated 29.05.2021. The said facts already stand referred
hereinabove while considering CRM(M) No. 312/2021 (Supra), as
such, in order to avoid repetition and for the sake of brevity, the
contents of the FIR (Supra) are not again referred hereunder. However,
the grounds on which the bail is being sought in the instant petition by
the petitioner being relevant need to be extracted and are reproduced
hereunder:
a) That, petitioner is a law abiding citizen. He is
innocent and has been falsely implicated. Petitioner
plead that the occurrence as alleged has never
happened. Petitioner has never committed any offence
much less the offence alleged. His arrest would result
in violation of his right to life guaranteed to him
under Article 21 of the Constitution. On this ground
only the petitioner is entitled for grant of anticipatory
bail.
b) That, it is true that the society has a vital interest in
grant or refusal of bail because every criminal
offence is the offence against the state. It is equally
true that the order granting or refusing the bail must
reflect prefect balance between the conflicting interest
of the society. The law of bails dovetails two
conflicting interest, namely, on the one hand, the
requirements of shielding the society from the hazards
of those committing crimes and potentiality of
repeating the same crime while on bail and on the
other hand absolute adherence of the fundamental
principle of criminal jurisprudence regarding
presumption of innocence of an accused until he is
found guilty and the sanctity of individual liberty. The
allegations against the petitioner has been made with
the sole object of injuring and humiliating the
Bail App No. 192/2021
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CRM(M) No. 312/2021 29petitioner by getting arrested in a false case. On this
ground as well, the petitioner is entitled to grant of
anticipatory bail.
c) That, seriousness of the charge is, no doubt, one of
the relevant consideration while considering bail
applications but that is not the only test or the factor.
If the same is taken to be the only test or the factor it
would not be balancing the constitutional rights but
rather recalibration of the scales of justice. The
provisions of CRPC conferred discretionary
jurisdiction on criminal court to grant bail to accused
pending trial or in the appeal against convictions,
since the jurisdiction is discretionary, it has to be
exercised with great care and caution by balancing
the valuable right of liberty of an individual and the
interest of the society in general. The arrest of the
petitioner would be a denial of the whole basis of our
system of law and normal rule of bail system. In bail
applications, generally, it has been laid down from
the earliest times that the object of bail is to secure
the appearance of the accused person at his trial by
reasonable amount of bail. The object of bail is
neither punitive nor preventive. Deprivation of liberty
must be considered a punishment, unless it can be
required to ensure that an accused person will stand
his trial when called upon. The courts owe more than
verbal respect to the principle that punishment begins
after conviction, and that every man is deemed to be
innocent until duly tried and found guilty. From the
earliest times, it was appreciated that the person in
custody pending completion of trial could be a cause
of great hardship. On this ground as well petitioner is
entitled to bail.
d) That, petitioner reiterate that, his is innocent and has
not committed any offence. He is serving as Naik in
the Army. His arrest in this false case would result in
losing his job and the same would practically lead his
family to starve to death, further depriving him of his
right to livelihood. On this ground as well petitioner
is entitled to grant of bail in anticipation of his arrest.
3. Objections to the petition have been filed by the respondents.
4. In the objections filed by the official respondent, the petition is
being opposed on the premise that the petitioner herein is not entitled
Bail App No. 192/2021
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CRM(M) No. 312/2021 30
to concession of bail in anticipation of his arrest, in that, the offence
committed by the petitioner is heinous and against the society at large
and that though the investigation of the case is nearer to completion,
guilt of the petitioner for having committed the offences in question,
during the course of investigation, have been established.
5. In the objections filed by the respondent 2, the petition seeking bail
in anticipation of arrest is being opposed almost on the similar grounds
on which the aforesaid petition for quashment of the FIR (Supra) has
been opposed, as such, the said objections are not referred herein in
order to avoid repetition.
Heard learned counsel for the parties and perused the record.
6. It is significant to note here that upon coming up of the instant petition
for consideration, this Court in terms of order dated 19.07.2021
granted the concession of anticipatory bail to the petitioner, subject to
various terms and conditions incorporated therein the order,
whereafter, the respondent 2 herein filed an application for
cancellation of said concession of bail granted to the petitioner, stating
therein that the accused/petitioner after availing the concession of bail
left the jurisdiction of this Court without seeking permission and in
support thereof has placed on record copy of the communication dated
11.09.2021 addressed by the Police Station, Women Cell, Gandhi
Nagar, Jammu to the then Additional Advocate General appearing in
the matter for the official respondent, wherein it has been stated that
the accused/petitioner left the jurisdiction of the competent court
without cooperating with the investigation.
Bail App No. 192/2021
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CRM(M) No. 312/2021 31
7. Before proceeding to advert to the petition in hand, it would be
appropriate to refer to the position of law in regard to the subject of
bail/anticipatory bail and issued connected therewith.
A reference in this regard to the judgment passed by the Apex Court in
case titled as Anil Kumar Yadav vs. S (NCT of Delhi) and another
reported in 2018 (12) SCC 129 would be relevant, wherein at 15, the
Apex Court has held as under:
“15. As held in Puran case [2001 (6) SCC 338], while
considering the question of grant of bail, court should avoid
consideration of details of evidence as it is not a relevant
consideration. While it is necessary to consider the prima
facie case, an exhaustive exploration of the merits of the
case should be avoided. We, therefore, consciously refrain
from considering the merits of the materials/evidence
collected by the prosecution.”
A further reference to the judgment passed by the Apex Court in case titled
as Dr. Naresh Kumar Mangla vs. Smt. Anita Aggarwal and others
reported in (2021) 15 SCC 777 would also be relevant, wherein at 17, the
Apex Court has held as under:
“17. In the recent decision of the Constitution Bench in
Sushila Aggarwal vs. State (NCT of Delhi), the considerations
which ought to weight with the Court in deciding an
application for the grant of anticipatory bail have been
reiterated. The final conclusion of the Court indicate that:
“92.1… The application seeking anticipatory bail should
contain bare essential facts relating to the offence, and why
the applicant reasonable apprehends arrest, as well as his
side of the story. These are essential for the court which
should consider his application, to evaluate the threat or
apprehension, its gravity or seriousness and the
appropriateness of any condition that may have to be
imposed.
92.3… While considering an application (for grant of
anticipatory bail) the court has to consider the nature of the
offence, the role of the person, the likelihood of his
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 32influencing the course of investigation, or tampering with
evidence (including intimidating witnesses), likelihood of
fleeing justice (such as leaving the country), etc.
92.4… Court ought to be generally guided by considerations
such as the nature and gravity of the offences, the role
attributed to the applicant, and the facts of the case, while
considering whether to grant anticipatory bail, or refuse it.
Whether to grant or not is a matter of discretion; equally
whether and if so, what kind of special conditions are to be
imposed (or not imposed) are dependent on facts of the case,
and subject to the discretion of the court.”
8. Keeping in mind the aforesaid position of law and reverting back to
the case in hand, the petitioner herein in the application seeking bail in
anticipation of arrest has essentially denied to have committed the
offences in question, inasmuch as claimed to have been falsely
implicated in the case. The said pleas of the petitioner, however,
cannot be adverted to while considering the instant bail application, in
that, the fundamental considerations to be looked into by the Court
while considering an application for grant of anticipatory bail is to
consider the nature of offence, role of the accused, his likelihood of
influencing the course of investigation or tampering with the evidence
including intimidating witnesses, in that, the question of innocence or
guilt of the petitioner or his involvement or non-involvement in the
commission of offences cannot be decided while deciding the bail
application.
9. Furthermore, as has been noticed in the preceding paras, non
cooperation of the petitioner in the investigation by the Investigating
Agency in terms of letter dated 11.09.2021 has been specifically
alleged and the petitioner in the objections filed to the said application
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 33
for cancellation of bail filed by the respondent 2 herein has not denied
the fact that he left the jurisdiction of this Court in breach of the
conditions imposed without seeking any permission from the Court,
thus necessitating withdrawal of concession of bail granted to the
petitioner also in view of the fact that the petitioner is an army
personnel and there is every likelihood that the petitioner would
directly or indirectly make inducement or threat to the respondent 2
herein in order to dissuade her from contesting the trial of the case.
10. Keeping in mind the facts and circumstances of the case, the position
of law referred in the preceding paras as also the aforesaid position
obtaining in the matter, the petitioner is held not entitled to continue to
avail the concession of grant of anticipatory bail granted by this Court
in terms of order dated 19.07.2021 more so, in view of the following
observation of the Apex Court made in case titled as Neeru Yadav vs.
State of Uttar Pradesh and another reported in (2014) 16 SCC 508:
“………….. A democratic body polity which is wedded to the
rule of law, anxiously guards liberty. But, a pregnant and
significant one, the liberty of an individual is not absolute.
Society by its collective wisdom through process of law can
withdraw the liberty that it has sanctions to an individual
when an individual becomes a danger to the collective and to
the society. Accent on individual liberty cannot be pyramided
to that extent which would bring chaos and anarchy to a
society. A society expects responsibility and accountability
from its members, and it desires that the citizens should obey
the law, respecting it as a cherished social norm. No
individual can make an attempt to create a concavity in the
sem of social stream. It is impermissible. Therefore, an
individual behaves in a disharmonious manner ushering in
disorderly things which the society disapproves, the legal
consequences are bound to follow. At that stage, the court has
duty. It cannot abandon its sacrosanct obligation and pass an
Bail App No. 192/2021
c/w
CRM(M) No. 312/2021 34order at its own whim or caprice. It has to be guided by the
established parameters of law.”
11. Viewed thus, the instant petition is dismissed along with the
connected applications and the concession of bail granted to the
petitioner in terms of order dated 19.07.2021 is withdrawn. The
petitioner is directed to be taken into custody forthwith by the
respondent 1.
12. It is however made clear that any observation made hereinabove shall
not be construed to be expression of any opinion about the guilt or
innocence of the petitioner herein and any such observations shall be
deemed to have been made only for the purpose of disposal of the
instant petition.
13. CD filed produced by the counsel for the official respondent be
returned back to him forthwith against proper receipt.
14. A copy of this common judgment shall be placed on record file of
each petition.
(JAVED IQBAL WANI)
JUDGE
Jammu
13.12.2024
Sahil Padha
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
Sahil Padha
2024.12.16 17:33
I attest to the accuracy and
integrity of this document