Jammu & Kashmir High Court

Pawan Kumar vs Ut Of Jammu And Kashmir And Another on 3 October, 2024

Supple-46
Dt. 03.10.24

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU

Bail App. No. 150/2024
CrlM. No. 1075/2024

Reserved on: 05.08.2024
Pronounced on: 03.10.2024

Pawan Kumar ...Petitioner(s)/Appellant(s)

Through: Mr. Sunil Sethi, Sr. Advocate with
Mr. Shubam Sharma, Advocate
Vs.
UT of Jammu and Kashmir and Another. ...Respondent(s)

Through: Mr. Sumit Bhatia, GA for R-1
Mr. Nikhil Padha, Advocate for R-2
CORAM:

HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
,

JUDGMENT

01. The instant bail application has been filed under the

provisions of Section 483 of Bharatiya Nagraik Suraksha

Sanhita, 2023, [hereinafter referred to as „BNSS, for short],

corresponding to Section 438 of the repealed
Code of Criminal

Procedure
, 1973, [hereinafter referred to as „ Code‟ for short],

for grant of bail in favour of the petitioner/accused in case FIR

No. 116/2022 of Police Station, Katra, the investigation

wherein has already culminated into the filing of final police

report/challan filed before the court of learned Principal

Sessions Judge, Reasi [hereinafter referred to as „the Trial

Court‟] in terms of the provisions of
Section 193
of the BNSS,

corresponding to
Section 173
of the Code under
sections 376
,
IPC and 3/4 of
Protection of Children from Sexual

Offences Act
2012, [herein referred to as „
POCSO Act
‟]
pursuant to the dismissal of his earlier bail application by the

Trial Court.

02. The bail has been sought on the grounds that

petitioner/accused has been falsely and frivolously involved in

the case FIR No. 116/2022 of Police Station, Katra, registered

under
Sections, 376
,
IPC and 3/4 of POSCO Act, which has

culminated in the filing of final report/challan pending before

the learned Trial Court. That an earlier bail application filed for

and on behalf of the petitioner/accused before the learned Trial

Court on 14th February, 2024, came to be dismissed by the

learned Trial Court vide Order dated 8th June, 2024 as being

non-maintainable on the ground that this Court in a criminal

petition filed under Section 482 of the Code, corresponding to

Section 528 of the BNSS, stayed the process of taking

cognizance on the final report/challan while allowing the

presentation of the same vide Order dated 8th May, 2024. That

aggrieved by the Order dated 8th June, 2024, passed by the

learned Trial Court while dismissing the bail application, the

petitioner/accused approached this Court with a bail application

bearing No. 133/2024 and this Court, vide Order, dated 21st

June, 2024, set-aside the Order dated 8th June, 2024, of the

learned Trial Court, directing for adjudication of the bail

application on merits. That the learned Trial Court pursuant to

the Order dated 21st June, 2024, of this Court heard the bail

application afresh and disposed of the same on merits while

dismissing the same vide Order dated 10th July, 2024, which

necessitated the filing of instant bail application. That the

Bail App. No. 150/2024
medical evidence, FSL opinion and more especially, the DNA

Analysis Report have ruled out the involvement of the

petitioner/accused in the commission of alleged crime. That

basically a couple, namely, "X" [husband] and "Y" [wife]

residents of Panjar District Udhampur along with their minor

children came to Katra in the year 2011 in search of their

employment as labourers/private workers on account of their

extreme poverty. That the mother of the petitioner/accused

gave them shelter and in lieu of the same, Mrs. "Y" used to

attend the house hold works of the mother of the accused when

"X" used to go for begging at Railway Track, out of which

amount the major portion was used to be taken by the mother of

the accused. That "Y" while giving birth to her 5th child in the

year 2015 expired and later on her husband "X" also died in the

year 2018. That the children of the deceased couple consisting

of four daughters and one son continued to live with mother of

the accused even after the death of their parents as none of

their relatives came forward to own them. That in February,

2021, two daughters of the deceased couple including the

prosecutrix ran away from Katra on the pretext of seeing their

land at their parental village Panjar, Udhampur, as they came to

be informed by some villagers that their parental uncles are

going to sell out their share in the land also. That while going to

their native village Panjar, Udhampur, they met their step

maternal grandfather and thereafter both the girls stayed at his

residence for 15 to 20 days. That as per the version of one of

girls, i.e., sister of the prosecutrix, she narrowly escaped an

Bail App. No. 150/2024
attempt of sexual assault of her said maternal step grandfather

on which night she ran away from his home and slept on the

road side and reached Katra next morning. That the other girl

i.e., complaint/victim preferred to stay at her step maternal

grandfather‟s house despite, the insistence by her sister for

coming back to Katra. That the respondent no. 2/victim

continued to live at maternal grandfather‟s house till February,

2022, where she reportedly gave birth to a baby girl who is now

about more than one month old. That the parental uncle‟s son

of the respondent no. 2/victim, upon hearing about the matter

approached the concerned police station in Panjar, Udhampur

for taking action against the maternal grandfather of the

prosecutrix for committing forcible repeated rape upon her,

making her pregnant and even managing her delivery in a

Jungle (Forest). That the step maternal grandfather of the

respondent no. 2/prosecutrix, by use of his influence succeeded

in shifting the blame upon the petitioner/accused. That on 23 rd

April, 2022, the said person brought the respondent no. 2 to

Police Station, Katra, under his influence and succeeded in

lodging a complaint written in Urdu before the SHO, Police

Station, Katra, involving the petitioner/accused in commission

of the crime.
That it was alleged in the said complaint lodged

by the respondent no. 2 at the behest of her said step maternal

grandfather that the petitioner/accused allured her and forcibly

committed rape on her, whereafter he threatened her of dire

consequences in case she made a revelation of the same, who

lastly took the prosecutrix to her step maternal grandfather‟s

Bail App. No. 150/2024
place at Panjar, where, after one month, she gave birth to a

baby girl. That the respondent no. 1, i.e., SHO, Police Station,

Katra, without looking to the genuineness of the highly

motivated complaint prepared and filed by said step maternal

grandfather of the victim through her, registered the FIR No.

116/2022 against the petitioner/accused for commission of

offences under
Sections 376
,
IPC and 3/4 of POSCO Act.

That the registration of the FIR against the petitioner/accused is

also backed by the persons who have committed the murder of

the brother of the petitioner/accused and were acquitted by the

Trial Court, but regarding which acquittal, the mother of the

petitioner/accused has filed a criminal revision which is

pending before this Court alongside the acquittal appeal filed

by the Union Territory of Jammu and Kashmir. That the

registration of the FIR against the petitioner, was assailed by

him through the medium of a criminal petition filed under

Section 482 of the Code bearing No. CRM(M) No. 368/2022

titled
Pawan Kumar vs. UT of Jammu and Kashmir and Anr.
, in

which, this Court in the first instance directed that while

proceeding with the investigation of the case, the respondent

no. 1 shall await the orders of this Court for filing charge sheet,

if any, contemplated. That this Court subsequently vide Order

dated 8th May, 2024, passed on the said petition directed the

prosecution to file the challan before the Trial Court, but barred

the taking of cognizance in the criminal case till further orders

of this Court. That it is the case of the prosecution as mentioned

in the challan that the DNA Analysis has ruled out the

Bail App. No. 150/2024
petitioner/accused as being the biological father of the child

who was born from the respondent no. 2 out of the alleged

offence of rape. That the learned Trial Court, while rejecting

the bail vide Order dated 10th July, 2024 has committed an

error as the Court has failed to appreciate that the allegations

against the petitioner/accused as per the prosecution are full of

inherent contradictions and based on no overwhelming

evidence. That the learned Trial Court has overlooked the very

important aspect i.e., DNA Analysis Report while rejecting the

bail application. That the petitioner/accused in his petition

earlier filed before this Court under Section 482 of the Code

has averred that he has been falsely implicated in the case as he

had no physical contact with the alleged prosecutrix. That the

petitioner/accused voluntarily opted for his DNA profiling for

allowing the State to ascertain his involvement. That the

incarceration of the petitioner in the case despite his non-

involvement as per the DNA Report is unjustified under law.

That the learned Trial Court has rejected the bail application of

the petitioner only on the basis of statement of respondent no. 2

recorded during investigation under Section 164 of the Code,

which, inter alia, is to the effect that petitioner raped her for

three to four years and when she revealed the matter to her

mother, she did not pay any heed to the same and instead

turned her out from her residence, which version could not be

believed as being without any clear dates and being belated.

That had the respondent no. 2 been subjected to the rape by the

petitioner continuously for years, then she ought to have raised

Bail App. No. 150/2024
an alarm earlier. That the respondent no. 2 was residing for

more than one and a half year at Panjar in her step maternal

grandfather‟s house, who, in fact, subjected her to repeated rape

and made her pregnant where after he by use of his influence

and by exerting undue influence on the respondent no. 2

succeeded in filing a false complaint before the SHO, Katra, for

registration of FIR. That the petitioner will not jump over the

concession of the bail and shall abide any conditions that may

be imposed by the Court.

That the Hon‟ble Supreme Court of

India in a criminal appeal No. 537/2020 titled
Jayanat

Chatterjee vs. The State of West Bengal
enlarged the

appellant/accused to bail on the ground that DNA Report did

not show him as the biological father of the child born.

03. The respondent no. 1 i.e., Union Territory of Jammu and

Kashmir through SHO, Police Station Katra Reasi resisted the

bail petition on the grounds, inter alia; that the

petitioner/accused is involved in commission of offences

punishable under
Sections 376
,
IPC and 3/4 of POSCO

Act arising out of case FIR No. 116/2022 registered with Police

Station, Katra Reasi; that the statements of the witnesses

especially that of the respondent no. 2/prosecutrix recorded

under Sections 161 and 164-A of the Code, the medical

examination of the respondent no. 2 and her age determination

have corroborated the commission of offences by the

petitioner/accused during investigation of the case and the final

report/challan stands also filed before the competent court

which is pending trial; that the DNA profiling of the new born

Bail App. No. 150/2024
baby who has subsequently died due to dehydration at SMGS

Hospital, Jammu, respondent no. 2/prosecutrix and also of the

petitioner/accused has been done and that the learned Trial

Court has rightly dismissed the earlier bail application of the

petitioner on merits as the offences committed by the petitioner

are heinous and antisocial.

04. The bail petition has been resisted on behalf of the respondent

no. 2 i.e., prosecutirix on the grounds that the

petitioner/accused does not deserve the concession of bail as he

has committed serious, non-bailable and antisocial offences in

relation to a minor orphan girl by taking advantage of her

orphanage and helplessness. That the nature of the crime

committed by the petitioner/accused is of utmost seriousness.

The petitioner/accused not only forcibly raped the victim

resulting in her pregnancy and the birth of a baby at the age of

14 years, but coerced her with a false promise of marriage to

ensure her silence. That both the petitioner and his mother

further threatened to kill the victim in case she discloses the

crime. That fearing her life, the respondent no. 2 was

compelled to flee to her maternal grandfather‟s residence where

she gave birth in isolation in March, 2022. That the release of

the petitioner/accused on bail is likely to pose a significant

threat to the safety and wellbeing of the victim who has already

suffered immense trauma. That the accused in order to flee

from the clutches of law absconded since 23rd February, 2022

and was only apprehended on 11th February, 2024. That in view

of the severity of the charges and potential consequences on the

Bail App. No. 150/2024
victim‟s health and wellbeing, there is high likelihood that the

petitioner may attempt to evade the judicial process and cause

harm to the victim if granted bail. That mention of the maternal

grandfather of the victim as an offender is an attempt on the

part of the petitioner to create confusion and to shift the blame.

That the statement of the victim clearly reveals that the

offences have been committed by the petitioner and not by the

said person. That the police concerned during investigation of

the case did not find any evidence regarding involvement of the

Balak Ram. That the re-examination of the DNA samples is

necessary to ensure the accuracy and reliability of the findings.

That the initial DNA test results may have been influenced by

factors, such as, sample contamination or procedural errors.

Furthermore, the doctors, who conducted the original DNA

test, be examined as witnesses during the trial to ensure that

there was no tampering whatsoever. That the petitioner‟s

continuous attempt to question the DNA Analysis Report is an

effort to divert attention from the core issue of sexual assault,

which the victim‟s statement clearly establishes. That granting

of bail in this case would set a dangerous precedent,

particularly, as the crime involves heinous acts against a minor.

Such an act is not only a grave violation of victim‟s rights but

also an affront to societal morals and the rule of law. That the

allegations in the FIR and the criminal challan against the

petitioner cannot be dismissed as false, frivolous, or baseless

solely on the basis of delay in reporting. The delay in reporting

such traumatic events is not unusual and should not be used to

Bail App. No. 150/2024
undermine the seriousness of the allegations. The victim, who

was a mere child and an orphan, of 14-15 years old at the time

of the alleged incidents, is likely to have experienced

significant psychological trauma, fear and coercion, which

could have impeded her ability to report the crime immediately.

The fact that the victim did not raise an alarm immediately or

that the accused is not the biological father the child does not

negate the occurrence of the crime or the credibility of the

victim‟s account. The respondent no. 2 has given the detailed

para-wise response to the bail application also.

05. Learned counsel for the respondent no. 2/prosecutrix in support

of the memo of his objections has placed reliance on the

Authoritative Judgments cited as
Rahul Kumar vs. Union

Territory of Jammu and Kashmir
through SHO Police

Station Miran Sahib Jammu and Ors, reported in (2023) SCC

Online J&K 323, State of Bihar vs. Bajballav Parasad,

reported in (2017) 2 SCC 178 and Y vs. State of Rajasthan

and Anr, reported in (2022) 9 SCC 269. It has been laid down

in the relied upon cases that seriousness of the crime committed

by the accused, the age of the prosecutrix and the statutory

presumptions under
Sections 29
and
of the POCSO Act are

needed to be considered while dealing with the bail application

of an accused involved in serious offences of sexual assault in

relation to a minor victim. It has also been laid down in the

relied upon cases that the court cannot conduct a mini trial

while considering a bail application as the same is likely to

prejudice the merits of the main case.

Bail App. No. 150/2024
06. I have heard learned counsel for the parties, who almost

reiterated their respective stands taken in the bail application

and the objections respectively.

07. I have perused the instant bail application and objections filed

in rebuttal by the respondents. Considered the rival

submissions.

08. The final report/challan in terms of the provisions of Section

193 of BNSS is reported to have been already filed before the

Trial Court, in which, the taking of cognizance stands barred

pending further orders by this Court as per its order dated 8 th

May, 2024, passed on a petition filed under Section 482 of the

Code by the petitioner/accused.

09. The petitioner/accused, as per the police report/challan, a copy

whereof is enclosed with the instant bail application, is alleged

to have committed the offences punishable under
Sections
,
IPC and 3/4 of POSCO Act arising out of case FIR

No. 116/2022 of Police Station Katra, Reasi.

10. Admittedly, in case of non-bailable offences which do not

carry a sentence of death or imprisonment for life in alternative,

bail is a rule and its denial an exception especially in cases

where firstly the custodial questioning of an accused is not

imperative for the logical and scientific conclusion of the

investigation and secondly where there is nothing on record to

show that the accused, if admitted to bail, will misuse the

concession by tampering with the prosecution evidence, by

non-cooperation and association with the investigating agency

and also by absconding at the trial.

Bail App. No. 150/2024
11. Apart from the statutory bar, if any, two paramount

considerations viz. likelihood of accused fleeing from justice

and tampering with the prosecution evidence relate to the

ensuring of a fair trial of the case in a court of law. It is

essential that due and proper appreciation and weightage should

be bestowed on these factors apart from others. The grant of

bail or the denial of the same falls within the purview of the

judicial discretion meant to be exercised on sound legal

principles upon the logical interpretation and application of the

same in the given facts and circumstances of the case. The

necessary arrests subject to the law of bails as provided under

the Code, BNSS and the provisions of different special

Legislations are permissible under the Constitution of our

Country by way of a reasonable exception to the fundamental

right to liberty guaranteed under
Article 21
of the Constitution

and the mandate of the provisions of
Article 22
of the

Constitution is meant to be followed upon making any such

necessary arrests.

12.
In
State of Rajasthan Jaipur Vs. Balchand
AIR 1977 S.C.

2447. The Hon‟ble Apex Court has held, "basic rule may

perhaps be tersely put as bail not jail, except where there are

circumstances of fleeing from justice or thwarting the course of

justice or creating other troubles in the shape of repeating

offences or intimidating the witnesses and the like, by the

petitioner who seeks enlargement on bail from the court.

Bail App. No. 150/2024
13. It is also well settled that the bar imposed under section 480 of

BNSS on the exercise of the discretion in the matters of bail

subject to proviso contained in the section, is confined to the

offences carrying a sentence of death or imprisonment for life

in alternative and the offences carrying a sentence of

imprisonment for life disjunctive of death sentence are

exempted from the embargo.

14. No single rule or a golden litmus test is applicable for

consideration of a bail application and instead some material

principles/guidelines are needed to be kept in mind by the

Courts and the Magistrates for consideration of a bail

application especially including:-

i. The judicial discretion must be exercised with the
utmost care and circumspection;

ii. That the Court must duly consider the nature and the
circumstances of the case;

iii. Reasonable apprehension of the witnesses being
tampered;

iv. Investigation being hampered or
v. The judicial process being impeded or subverted.
vi. The liberty of an individual must be balanced against the
larger interests of the society and the State.
vii. The court must weigh in the judicial scales, pros and
cons varying from case to case.

viii. Grant of bail quo an offence punishable with death or
imprisonment for life is an exception and not the rule;
ix. The court at this stage is not conducting a preliminary
trial but only seeking whether there is a case to go for
trial;

x. The nature of the charge is the vital factor, the nature of
evidence is also pertinent, the punishment to which the
party may be liable also bears upon the matter and the
likelihood of the applicant interfering with the witnesses
or otherwise polluting the course or justice, has also a
bearing on the matter.

xi. The facts and circumstances of the case play a predominant
role.

Bail App. No. 150/2024
15. The Hon‟ble Apex Court in Gur Bakash Singh Sibbia Vs.

State of Punjab AIR 1980 S.C. 1632, referred to the following

extract from the American Jurisprudence having bearing on the

subject of bail,

"where the grant of bail lies within discretion of the
court, granting or denial is regulated to a large extent, by the
facts and circumstances of each particular case. Since the object
of detention order/imprisonment of the accused is to secure his
appearance and submission to jurisdiction and the judgment of
the court, the preliminary enquiry is whether a recognizance or
bond would yeild that end. It is thus clear that the question
whether to grant bail or not, depends for its answer upon a
Variety of circumstances, the cumulative effect of which must
enter into the judicial verdict. Any one single circumstance
cannot be treated as of universal validity for justifying the grant
or refusal of bail".

16. It has been laid down by the Hon‟ble Supreme Court in
Sanjay

Chandra vs. Central Bureau of Investigation
AIR 20012 SC

830 at Para 14 of its Judgment as under:-

14) 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
beings after conviction, and that every man is
deemed to be innocent until duly tried and duly
found guilty. From the earliest times, it was
appreciated that detention in custody pending
completion of trial could be a cause of great hardship.

Bail App. No. 150/2024
From time to time, necessity demands that some un-
convicted persons should be held in custody pending
trial to secure their attendance at the trial but in
such cases, necessity is the operative test. In this
country, it would be quite contrary to the concept of
personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter,
upon which, he has not been convicted or that in any
circumstances, he should be deprived of his liberty
upon only the belief that he will tamper with the
witnesses if left at liberty, save in the most
extraordinary circumstances. Apart from the question
of prevention being the object of a refusal of bail,
one must not lose sight of the fact that any
imprisonment before conviction has a substantial
punitive content and it would be improper for any
court to refuse bail as a mark of disapproval of
former conduct whether the accused has been
convicted for it or not or to refuse bail to an un-
convicted person for the purpose of giving him a
taste of imprisonment as a lesson."

17. The Hon'ble Supreme Court in
Dataram Singh vs State of UP and

Anr.
2018 3 SCC 22 has held that even if grant or refusal of bail is

entirely the discretion of a Judge, such discretion must be exercised

in a judicious manner and in a humane way observing as follows:

"2. There is no doubt that the grant or denial of bail is entirely
the discretion of the judge considering a case but even so, the
exercise of judicial discretion has been circumscribed by a
large number of decisions rendered by this court and by every
High Court in the country. Yet, occasionally there is a necessity
to introspect whether denying bail to an accused person is the
right thing to do on the facts and in the circumstance of a case.

Bail App. No. 150/2024
3. While so introspecting, among the factors that need to be

considered is whether the accused was arrested during
investigations when that person perhaps has the best
opportunity to tamper with the evidence or influence
witnesses. If the investigating officer does not find it necessary
to arrest an accused person during investigations, a strong
case should be made out for placing that person in judicial
custody after a charge-sheet is filed. Similarly, it is important
to ascertain whether the accused was participating in the
investigations to the satisfaction of the investigating officer
and was not absconding or not appearing when required by
the investigating officer. Surely, if an accused is not hiding
from the investigating officer or is hiding due to some genuine
and expressed fear of being victimized, it would be a factor that
a judge would need to consider in an appropriate case. It is
also necessary for the judge to consider whether the accused is
a first time offender or has been accused of other offences and
if so, the nature of such offences and his or her general
conduct. The poverty or the deemed indigent status of an
accused is also an extremely important factor and even
Parliament has taken notice of it by incorporating an
Explanation to
Section 436
of the Code of Criminal Procedure,
1973. An equally soft approach to incarceration has been taken
by Parliament by inserting Section 436A in the
Code of
Criminal Procedure
1973."

18.
In
Pankaj Jain vs Union of India and Anr.
2018 5 SCC 743 the

Hon'ble Supreme Court has held that the grant of bail has to be

exercised compassionately. Heinousness of crime by itself cannot be

the ground to out rightly deny the benefit of bail if there are other

overwhelming circumstances justifying grant of bail.
The Hon‟ble

Apex Court in its Judgments cited as Siddharam Satlingappa

Mhetre Vs. State of Maharastra AIR 2011 SC 312 and Sushila

Bail App. No. 150/2024
Aggarwal and Ors. Vs. State (NCT of Delhi) and Anr 2020 SC

online 98, has interpreted law even on the subject of anticipatory

bail with a very wide outlook and while interpreting concept of

liberty guaranteed under
Article 21
of the Constitution of our

Country in a flexible and broader sense.

19. This Court is conscious of the legal position that offences under

Sections 376
IPC and 4 of
POCSO Act
charged against the

petitioner/accused carry a sentence of life imprisonment owing to

which fact attraction or otherwise of the bar under Section 480 of

BNSS, corresponding to Section 437 of the Code is to be addressed

to. As hereinbefore mentioned, the bar imposed under Section 480

of BNSS is not confined to the cases where the imprisonment for

life is provided as an alternative punishment disjunctive of death

penalty. I deem it proper to reproduce the relevant extracts of the

pronouncements of the Hon‟ble Apex Court and also of this Court

to the clarification of the issue:-

Gurcharan Singh & Ors. V/s State (Delhi
Administration) AIR 1978 SC179
"If a police officer arrests a person on a reasonable suspicion
of commission of an offence punishable with death or
imprisonment for life and forwards him to a Magistrate, the
Magistrate at that stage will have no reason s to hold that
there are no reasonable grounds for believing that he has not
been guilty of such an offence. At that stage, unless the
Magistrate is able to act under the proviso to section 437 (1),
bail appears to be out of the question. The only limited inquiry
may then relate to the materials for the suspicion. The position
will naturally change as investigation progresses and more
facts and circumstances come to light section 439 (1) on the

Bail App. No. 150/2024
other hand, confers special powers on the High Court or the
court of Sessions in respect of bail. Unlike under section 437
(1) there is no ban imposed under section 439 (1) against
granting of bail by the High court or the Court of Sessions to
persons accused of an offence punishable with death or
imprisonment for life. It is, however, legitimate to suppose that
the High Court or the court of Sessions will be approached by
an accused only after he has failed before the Magistrate and
after the investigation has progressed throwing light on the
evidence and circumstances implicating the accused. Even the
Court of Sessions will have to exercise its judicial discretion in
considering the question of granting of bail under section 439
(1) The overriding considerations in granting bail which are
common both in the case of section 437 (1) and section 439 (1)
are the nature and gravity of the circumstances in which the
offence is committed, the position and the status of the accused
with reference to the victim and the witnesses, the likelihood of
the accused fleeing from justice of repeating the offence of
jeopardizing his own life being faced with a grim prospect of
possible conviction in the case, of tampering with witnesses,
the history of the case as well as of is investigation and other
relevant grounds which in view of so many variable factors,
cannot be exhaustively set out. The two paramount
considerations viz likelihood of the accused fleeing from
justice and his tampering with prosecution evidence relate to
ensuring a fair trial of the case in a court of justice. It is
essential that due and proper weight should be bestowed on
these two factors apart from others."

Jawahar Barwa Vs. State of J&K, 1973 JKLR 74.

"Cases are conceivable in which a person is accused of an
offence punishable with imprisonment for life or in the
alternative with imprisonment for a lesser term. To quote some
instances take for example the offences under
section 371
,
and
IPC all of which are punishable with imprisonment
for life or imprisonment of either description for ten years and

Bail App. No. 150/2024
fine. The question arises, as in fact it was raised by Mr. Beg,
appearing for the petitioner, whether the restriction imposed
in
section 497 (1)
Cr.P.C. providing that no bail should be
granted where there are reasonable grounds for believing that
the accused is guilty of an offence punishable with
imprisonment for life, applies equally to such cases. The object
of the law in providing an alternate punishment seems to be to
leave room for the court to impose a lesser punishment than
imprisonment for life where, in its opinion, there are some
extenuating circumstances which lessen the gravity of the
offence. As a corollary it must follow that the restriction
imposed by section 497 (1) is not intended to cover a case
involving an offence punishable with imprisonment for life and
in the alternative imprisonment for a lesser term if there are
extenuating circumstances which lessen the gravity of the
offence. Even so the court may decline to enlarge the accused
on bail in such case as in other cases involving non-bailable
offences where larger interests of the state or of the public so
demand or because there is reasonable possibility of the
accused absconding or tampering with the witnesses or for
similar other consideration....."

Assadullah Khan and ors v/s State, SLJ 1980 J&K 31
"The very fact that an offence u/s 376 RPC was punishable
"with imprisonment for life or ten years" amply makes out the
distinction between the categories of cases of this class and
those which fall within the category where punishment
provided is death or life imprisonment. It could not be correct
to equate offences punishable with imprisonment for life or 10
years in their gravity and seriousness and in matter of bail
with those as are punishable either with death or
imprisonment for life. The bar for setting out on bail was
complete in respect of offences which are punishable either
with death or imprisonment for life. That bar in law could not
be extended to any other offence."

Bail App. No. 150/2024
Mohinder Singh v/s State, KLJ 1987 237
"Therefore the rule of caution for granting bail is in respect of
any non-bailable offences which carry punishment of either
death or life. The proviso, therefore, classifies the offences on
the basis of punishment as there are huge number of offences
which are non-bailable some of them defined heinous. First
category comes murder u/s 302 RPC while under section
371,372,376,377 RPC etc. Comes later. Thus latter portion of
clause (1)
section 497
Cr.P.C excludes the offences which
carry sentences for life or 10 years which we are concerned
here. The gravity of the charge under Murder is definitely
grave. Therefore, punishment provided iis death or life with no
other alternative, the forceful portion of the clause 1st of
section 497 Cr.P.c. is, therefore, to be read in isolation while
the first portion of the clause (1) of
section 497
Cr.P.C. which
gives a clear command as in section 498 Cr.p.c. for granting
the bail. But even
u/s 498
Cr.P.C. the latter portion of the 1 st
proviso has its play and it should be deemed a ride while
granting bail
u/s 489
Cr.P.C. in non-bailable offences
carrying death penalty or life imprisonment. Therefore, there
is clear distinction between offences which carry punishment
of death or life and offense which carry life and 10 years. This
demarcation is very much embedded in clause (1) of
section
Cr.P.C. In this view of the matter. I am not at all in
agreement with the counsel for the complainant that the life
imprisonment provided as punishment u/s 377 RPC should be
regarded with equal force with offences which carries the
punishment of death penalty or life. In my opinion the offences
u/s 371,372, 376 and 377 RPC and other carrying similar
punishment are out of the clutches of last clause of (1) of

section 497
Cr.P.C. The bail in this case is, therefore, to be
considered on its own merit without applying the rider
indicated in clause (1) of
section 497
Cr.P.C."

Satyan, Petitioner Vs State, Respondent Cr.L.J. 1981 1313

Bail App. No. 150/2024
"The Magistrate is not justified in holding that he has no
power to grant bail to a person accused on the sole ground
that the offence is punishable with imprisonment for life.
The prohibition against granting bail is confined to cases
where the sentence is either death or alternatively
imprisonment for life. The expression "offence punishable with
death or imprisonment for life" in section 437 (1) does not
extend to offences punishable with imprisonment for life only
(1926 27 Cr.L.J. 401 (Rang) and 1926 27 Cr.LJ 1063 (Nag)
Re1.

The legislature has made a liberal approach in the matter of
granting bail and has shown its disapproval in the matter of
keeping an accused person in custody in cases where he is
ordinarily entitled to bail. The purpose of keeping a person in
custody is to ensure his appearance in court at the time of trial
and that he is also made available for the purpose of execution
of the sentence. The purpose is not penal in character"

20. This Court is also conscious of the fact that provisions of
Sections 29

of the POCSO Act presume commission, abetment or attempt of

offences defined under
Sections 3
,
,
and
of the said Act, in any

prosecution against an accused for commission, abetment and

attempt of said offences. The provisions of
Section 30
of the

POCSO Act, also presume existence of the culpable mental state of

the accused in any prosecution for any offence under the said Act,

which requires a culpable mental state on the part of the accused.

However, the accused‟s right in defense to prove that he had no

such mental state with respect to the act charged as an offence is

being protected under the provisions of the aforementioned
Section
of the POCSO Act.

21. It is also true that as per the
Section 31
of the POCSO Act, the

provisions of the Code including the provisions as to bail and bonds

Bail App. No. 150/2024
are applicable in the proceedings before a Special Court under the

POCSO Act
.

22. The presumptions under
Sections 29
and
of the POCSO Act are

not absolute but are rebuttable presumptions. Such provisions of the

Act are to be considered at the conclusion of the trial and they do

not operate as a bar for grant of bail if there are other conditions and

circumstances which even before recording the evidence during the

trial make out a prima facie case for not relying upon and

considering such presumptions. Such presumptions are in the form

of an additional advantage to the prosecution and do not absolve the

prosecution from proving the foundational facts of its case. No

doubt it is for the accused to prove his innocence after the

prosecution establishes its case in terms of the foundational facts.

23. The offence under
Section 376
IPC charged against the

petitioner/accused carries a rigorous imprisonment of not less than

10 years, but which may extend to imprisonment for life and with

fine. The offence punishable under 4 of the
POCSO Act
also

charged against the petitioner/accused carries a maximum

punishment of life imprisonment.

24. So in view of the punishments provided for the offence of rape under

Section 376
IPC and for the offence of penetrative sexual assault

under
Section 4
of the POCSO Act, the bar created under Section

480 of BNSS is not attracted.

25. Admittedly, the offences charged against the petitioner/accused are

heinous in nature and highly antisocial. A murderer destroys the

physical body of a victim, but a rapist destroys the very soul of the

victim. Society looks with great apathy and hatred an unchaste girl

Bail App. No. 150/2024
and it is immaterial whether she becomes so by a voluntary act or

under force or compulsion.

26. It is the admitted case of the prosecution that DNA Analysis of the

victim, the baby and the petitioner/accused has ruled out the later,

i.e., petitioner as being the biological father of the baby.

27. The learned counsel for the petitioner/accused, during his arguments,

submitted that the Hon‟ble Apex Court in a Criminal Appeal No.

537/2020 tiled
Jayanat Chatterjee vs. The State of West Bengal

admitted the appellant/accused therein to bail taking into

consideration the DNA Analysis report which did not show him as

father of the child born.

28. The learned counsel for the respondent no. 2, in support of his

arguments, also relied upon the case law holding that DNA evidence

showing a lack of biological connection does not invalidate the

seriousness of rape allegations or justify bail based on such evidence

alone. He also submitted during his arguments that a Court has to

consider the other evidence on the record of the file and shall not

decide only on the basis of DNA Analysis report, which is never

100% accurate.

29. A DNA test has to be lent credibility especially after the

incorporation of Section 53-A in the Code w.e.f. 23rd June, 2006,

which has made it necessary for the prosecution to go for DNA test,

in rape cases, facilitating the prosecution to prove its case against

the accused prior to 2006, the prosecution could have still resorted

to this procedure of getting DNA test for making its case foolproof.

The Hon‟ble Supreme Court in
Mukesh and Anr. vs. State
for NCT

of Delhi and Ors. AIR2017 SC 2061 decided on 5th May, 2017, has

Bail App. No. 150/2024
laid much emphasis on the DNA Analysis being accurate as a

technique outcome of recent scientific development. The Apex

Court in the said case has, inter alia, held at para-87 of the

Judgment that DNA evidence is now a predominant forensic

technique for identifying criminals when biological issues are left at

the scene of crime. It is profitable to reproduce the para-88 of the

Judgment.

88. Observing that DNA is scientifically accurate and
exact science and that the trial court was not justified
in rejecting DNA report, in
Santosh Kumar Singh v.
State
through CBI (2010) 9 SCC 747, the Court held
as under:-

"65. We now come to the circumstance with
regard to the comparison of the semen stains with the
blood taken from the appellant. The trial court had
found against the prosecution on this aspect. In this
connection, we must emphasis that the court cannot
substitute its own opinion for that of an expert, more
particularly in a science such as DNA profiling which
is a recent development."

30. It is also true that prosecution and the complainant have right under

law to lead evidence as against the accuracy of the DNA Analysis

report during trial of the case. However, during investigation stage

or the initial trial stage, ahead of recording evidence, such analysis

report can be considered for consideration of a bail petition.

31. As hereinbefore, mentioned at para-14, a series of guiding

factors/underlying principles are needed to be kept in mind while

considering a bail application of an accused involved in non-

bailable offences, regarding which there is no immediate statutory

Bail App. No. 150/2024
bar, as in case of an offence punishable U/s 103 of BNS

corresponding to
Section 302
IPC or in offences punishable U/ss 19,

24, 27-A and offences in relation to commercial quantities under

NDPS Act
or, in case of offences mentioned under Chapter-IV and

VI, Unlawful Activities Prevention Act of 1967 etc. etc., for

exercise of judicial discretion among which the factor,

"circumstances under which, offence is committed," also finds its

place which needs to be given due weightage.

32. In the facts and circumstances of the case, especially, while

considering the DNA Profiling report, which does not connect the

petitioner with the alleged crime, and the circumstances under

which the crime is alleged to have been committed, this Court is of

the opinion that it may meet the ends of justice in case the petitioner

is admitted to bail subject to reasonable terms and conditions.

33. It is very needful to mention that petitioner/accused during

investigation of the case FIR against him preferred a petition under

Section 482 of the Code being CRM (M) No. 368/2022 for

quashment of the FIR mainly on the ground that he has been falsely

implicated in the case which is evident from the DNA Analysis

report which does not connect him with the alleged crime. As per

the Order dated 8th May, 2024 of this Court passed in the said

petition, the Police concerned was permitted to file police

report/challan before the competent Court, but the taking of

cognizance on the same has been stayed, pending further orders

from this Court. The trial on the main criminal case/challan is

needed to be started and to be proceeded expeditiously. After all the

outcome of the petition filed under Section 482 of the Code

Bail App. No. 150/2024
pending before this Court shall have a direct bearing on the trial of

the criminal case.

34. For the foregoing reasons and discussion, the instant application is

allowed and the petitioner/accused is admitted to bail subject to his

furnishing personal and surety bonds each in the amount of Rs.

50,000/- for complying with the conditions of this order. The

surety/bail bond shall be furnished to the satisfaction of the learned

Trial Court. The bail order shall, however, be subject to the

following conditions:-

a) The petitioner/accused shall remain punctual at the

trial of the case.

b) The petitioner/accused shall not directly or indirectly,

make any inducement, threat or promise to the

prosecution witnesses especially the prosecutrix so as

to dissuade them from making their statements at the

trial of the case.

c) The petitioner/accused shall not leave the limits of the

Jammu, Division of the Union Territory of J&K

without the prior permission of the learned Trial

Court and shall not repeat the commission of crime.

35. In case the requisite surety/bail bond is furnished and attested, the

learned trial court shall issue a formal release order directing the

Superintendent of the concerned Jail, where the petitioner is lodged,

to release him from the custody in the instant case subject to the

furnishing of his requisite personal bond to the satisfaction of

Superintendent of the concerned jail.

Bail App. No. 150/2024
36. The observations in this order have been so made for the limited

purposes of disposal of this bail application filed under Section 483

of BNSS [439 of the Code] and shall not be construed as any

interference or prejudging of the merits of the case, to be decided at

the conclusion of the trial.

37. The learned Registrar Judicial, Jammu, shall take necessary steps for

getting the pending petition under Section 482 of the Code being

CRM(M) No. 368/2022 titled
Pawan Kumar Vs. UT of JK and

Anr
, specially assigned expeditious speedy disposal thereof to an

appropriate Bench of this Court under the orders of Hon‟ble the

Chief Justice, provided the same is not already disposed of. The

pendency of the said petition has halted the trial of the criminal case

against the petitioner/accused, who is alleged to have committed the

serious offences punishable under
Sections 376
IPC, 4 of
POCSO

Act
, being against the society. The petitioner/accused may not be

interested in the speedy disposal of the said petition, which has

halted the trial of the main criminal case.

38. The learned Trial Court shall, notwithstanding the pendency of the

aforesaid petition under Section 482 of the Code before this Court,

in which, by Order dated 8th May, 2024, the cognizance on the

criminal case has been barred till further orders of this Court,

continue to list the same [criminal case/challan] without any

effective proceedings till and subject to disposal of the petition

(refer to order dated 8th May, 2024 passed therein) with short

adjournments, not exceeding 15 days and ensure the presence of the

petitioner/accused at the trial with liberty to proceed under the

provisions of Sections 491,492 of BNSS, corresponding to Sections

Bail App. No. 150/2024
446, 446-A of the Code, in case of t he absconding at the trial of the

petitioner/accused.

39. Before parting, it is felt needful to observe that sometimes self

induced environment, life situation, opportunity, fear, helplessness

and undue influence compels a girl child to fall an easy prey to the

sexual assault.

40. The prosecutrix alongwith her sisters and brother was putting up in

the house of the petitioner/accused since the time her parents were

alive. After the death of the parents of the prosecutrix, none of her

relatives came forward to own her and her other sisters. The

petitioner/accused had an opportunity to do the illegal act. The

prosecutrix being a minor child is supposed to be an unaware of the

consequences of the act allegedly committed in relation to her. The

situations are different where the illegal acts are being committed

by persons having an entrustment or custody of females in their

responsible capacities as public servants.

41. Some bare minimum preventive measures in aid of law need to be

taken by the prudent parents and guardians in respect of their

children/wards to save them from exploitation on account of their

vulnerability based on infancy, immaturity, bonafide belief, fear,

reputation etc. etc. Sometimes children are thrown voluntarily by

their parents and guardians in exploitation prone environment

unmindful of the consequences. No doubt the law enforcing

agencies are always at high alert but the criminal minded always

find an opportunity to commit crime. The chastity of a girl is of

Bail App. No. 150/2024
predominating factor in the matter of her marriage. The society

looks up with apathy, abhorrence and hatred to an unchaste girl

and this includes the girl ravished by force or under compulsion.

Most of the incidents relating to sex offences are not at all reported

to the police. The court cannot loose sight of the fact that in sexual

offences, the failure to report the incident to the police can be due

to a variety of reasons particularly due to reluctance of the

prosecutrix and her family members go to the police and complain

about incident which concerns the reputation of the prosecutrix and

the honour of the family members. It is only upon a cool thought

that a complaint of sex offences is generally lodged. In the present

society and more particularly in conservative villages, the chastity

of a girl is of a great importance for her matrimonial relations.

42. A little bit reasonable care and precaution in aid of law is sure to

prevent an unfortunate incident of exploitation and save honour and

reputation of a child. The long penal provisions containing Proviso

upon Proviso cannot repair and restore the loss in terms of honour

and reputation. No doubt our Parliament upon taking a serious note

of the incidents of rape and gang-rape of women under the age 16

years and 12 years, has made suitable amendments in the Penal

Laws and also legislated special Acts for protection of children from

sexual offences so as to generate an environment of deterrence by

providing stringent punishments.
Article 15
of our Constitution

inter alia confers upon the State powers to make special provisions

for children. Further
Article 39
inter alia provides that the State

shall in particular direct its policy towards securing that tender age

of the children is not abused and their childhood and youth is

Bail App. No. 150/2024
protected against an exploitation and they are given facilities to

develop in a healthy manner and in conditions of freedom and

dignity.

43. The United Nations Convention on the Rights of the Children,

ratified by India on 11th Dec. 1992, requires the State Parties to

undertake all appropriate national, bilateral and multilateral

measures to prevent the inducement or coercion of a child to

engage in any unlawful sexual activity.

44. The prosecutrix and her other minor sisters being orphans were

living in the home of petitioner/accused even after death of their

parents and their relatives did not bother to come to their rescue.

Even the authorities under the
Juvenile Justice (Care and

Protection of Children) Act
2015 (hereinafter for short referred to

as the Act) fail to act in respect of the said children in accordance

with the provisions of Chapter-VI and VII of the aforesaid Act and

the rules framed there under. Guilty are liable for penalty U/s 34 of

the Act for non reporting. Concerned Child Welfare Committee(s)

shall in a discreet manner swing into action, verify the present

position of the prosecutrix/respondent No.2 and her minor sisters

and brother and press into the service the measures for their

rehabilitation and social re-integration if needed in consultation

with their relatives.

45. The learned Trial Court shall verify as to whether an application by

or on behalf of the prosecutrix/respondent no. 2 for award of

compensation under Victim Compensation Scheme in force stands

filed and processed. In case such an application is not found to have

been filed, the learned Trial Court shall take necessary steps in

Bail App. No. 150/2024
coordination with the District Legal Service Authority, Jammu, so

that the entitlement of the prosecutrix to compensation under Victim

Compensation Scheme is addressed to at an earliest.

46. Disposed off.

(MOHD YOUSUF WANI)
JUDGE
JAMMU
03.10.2024
Ayaz TF"Shamim Dar PS"

i) Whether the order is speaking: Yes
ii) Whether the order is reportable: Yes

Pawan Chopra

2024.10.03 15:17

I attest to the accuracy and

integrity of this document Bail App. No. 150/2024