Bail to be given when the allegations against the petitioner are yet to be proven as petitioner cannot be kept in custody as a matter of punishment : Jammu High Court

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on: 28.07.2021 Pronounced on: 06.08.2021 B.A. No. 158 2021 Through: Mr. Ravinder Sharma Advocate. Jameela Bibi and another Union Territory of J&K …. Respondent(s) Through: Mr. Aseem Sawhney AAG. Mr. Adarsh Bhagat GA. Mr. M. R. Qureshi Advocate Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL JUDGE applicants petitioners who are the husband and wife for grant of bail in FIR No. 165 2020 dated 21.10.2020 registered with Police Station Bishnah Jammu for commission of offences under Sections 376 366 and 109 IPC. Subsequently petitioner No. 2 namely Talib Hussain who is the husband of petitioner No. 1 withdrew the said bail application and as such the present application for grant of bail pertains to only petitioner No. 1who belong to B.A. No. 158 2021 two different Deras of Gujjar community Raj Bibi W o Liaquit Ali at the behest of her husband got registered a false and frivolous case against the petitioner and her husband and later on her statement under Section 164 Cr.P.C was recorded and subsequently an offence under Section 376 IPC was also added. It is also stated that the petitioner has been in custody for the last nearly 5 ½ months and has one son aged four years and one daughter who is six years old. The petitioner and her husband had laid a motion for grant of bail before the learned Trial Court and the learned Trial Court vide order dated 19.05.2021 dismissed the bail application of not only the husband of the petitioner but the petitioner as well. It is further stated that the petitioner has been falsely implicated so she deserves to be enlarged on bail. Response stands filed by the respondents in which besides narrating the factual aspects of the case it is stated that the petitioner is also involved in commission of offence so she does not deserve to be enlarged on Mr. Ravinder Sharma Advocate appearing on behalf of the applicants petitioners has vehemently argued that initially a false and frivolous FIR was registered for commission of offences under Sections 366 and 109 IPC was registered and just to ensure that the petitioner along with her husband remain in jail the prosecutrix leveled false and frivolous allegations of commission of rape against the husband of petitioner and the petitioner was also falsely implicated. Per contra Mr. Aseem Sawhney learned AAG has vehemently argued that the petitioner has abetted the commission of offences so she does B.A. No. 158 2021 not deserve to be enlarged on bail and further that the Court can frame the charges for commission of offence under Section 376 D IPC as the arguments are yet to be heard on charges discharge. Mr. M.R. Qureshi Advocate made similar submissions and objected the bail application. Heard and perused the record. From the record it appears that the FIR for commission of offences under Sections 366 and 109 IPC was registered on the allegations that on 13.10.2020 the prosecutrix had gone to the house of her brother in law namely Naseeb Ali to know about the well being of his livestock. On 15.10.2020 around 3 4 P.M while she was coming to her house on foot and reached near Radha Swami Ashram at Village Chack Avtara Bishnah one Mahindra Bolero came behind wherein 4 5 persons namely Talib Hussain Jameela Bibi Feroz Din Taj Din and Shafi were sitting and they forcibly abducted her and took her to an unknown place. With great efforts she escaped from their clutches and saved her life. Thereafter the statement of the prosecutrix was recorded under Section 164 Cr.P.C in which she stated that on 15.10.2020 while she was coming back to her home one Mahindra Bolero came in which Shomal S o Shafi Talib Hussain S o Nawab Din and Jameela Bibi W o Talib Hussain along with two other persons whom she did not know were sitting. Shomal was driving the car Jameela Bibi and Talib Hussain forcibly took her inside the car. Thereafter the said Jameela Bibi came out of the car near Samba. Thereafter Shomal and Talib Hussain discussed among themselves and took her out of the car and forcibly dragged her towards the jungle. She was kept in kacha kotha and on the night of 15.10.2020 Shomal B.A. No. 158 2021 committed rape and on 16.10.2020 Talib Hussain committed rape on her. It was further stated by her that Jameela Bibi brought food on 16.10.2020 for all in that kacha house. After recording the statement of the prosecutrix under Section 164 Cr.P.C as well as the statement of other witnesses and after conclusion of the investigation the Investigating Officer filed the challan and the same is sub judice before the Court of Presiding Officer Fast Track Court Jammu for commission of offences under Sections 366 109 and 376 IPC. From the allegations leveled against the petitioner it is evident that the only allegation against her is that she along with her husband and other persons abducted the prosecutrix and on 16.10.2020 the petitioner brought the food for all the persons. There is no allegation that the petitioner was present when the rape was committed or she has any knowledge of the same. Without commenting upon the merits of the case as the arguments on charges discharges are yet to be heard this Court after taking into consideration that the petitioner is in custody for the last nearly five and half months and the challan stands filed and the presence of the petitioner is required only for the purpose of facing trial in the event the charges are framed against her. The allegations against her are yet to be proved and the petitioner cannot be kept in custody as a matter of punishment so she deserves to be enlarged on bail. In view of what has been stated above the petitioner Jameela Bibi shall be released on bail subject to the following terms and conditions: She shall furnish one surety to the tune of Rs. 50 000 to the satisfaction of the trial court and personal bond of the like amount each. B.A. No. 158 2021 ii) She shall not contact with any of the prosecution witnesses during the investigation. She shall not leave the territorial jurisdiction of the Union Territory without prior permission of this Court. iv) She shall regularly appear before the trial court. Disposed of accordingly. Jammu: Ram Krishan Rajnesh Oswal) Judge Whether the order is speaking Whether the order is reportable Yes No 

Summary: Allegations does not directly translate into the truth until proven in the court of law. Until proven guilty, the law believes that no one should be unjustly held in custody. This was held in the judgment passed by a single bench judge comprising HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE, in the matter Jameela Bibi and another V. Union Territory of J&amp;K (B.A. No. 158/2021), dealt with an issue where the petitioner filed for bail in FIR No. 165/2020 for commission of offences under Sections 376, 366 and 109 IPC. The petitioner has been in custody for the last nearly 5 ½ months and has one son, aged four years and one daughter, who is six years old. The petitioner states that she has been falsely implicated, so she deserves to be enlarged on bail. The respondents stated that the petitioner was also involved in commission of offence, so she does not deserve to be enlarged on bail. The counsel for the petitioner vehemently argued that initially a false and frivolous FIR was registered for commission of offences under Sections 366 and 109 IPC was registered and just to ensure that the petitioner along with her husband remain in jail, the prosecutrix levelled false and frivolous allegations of commission of rape against the husband of petitioner and the petitioner was also falsely implicated. AAG has vehemently argued that the petitioner has abetted the commission of offences, so she does not deserve to be enlarged on bail and further that the Court can frame the charges for commission of offence under Section 376-D IPC, as the arguments are yet to be heard on charges/discharge. From the allegations levelled against the petitioner, it is evident that the only allegation against her is that she along with her husband and other persons abducted the prosecutrix and on 16.10.2020, the petitioner brought the food for all the persons. There is no allegation that the petitioner was present when the rape was committed or she has any knowledge of the same.