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Judgment
Perusal of the order dated 08.04.2019 passed by learned Principal Sessions Judge, Budgam, reveals the petition for admitting the petitioner herein to bail in the light of allegations levelled against him having been found without merit and so rejected.
In the First Information, which has been lodged by one Waseeda Ali against the petitioner herein, the summary of allegations is that:
"The accused (petitioner herein) without any justification is intimidating the complainant as well as the members of her family. The accused/petitioner is misusing the social media and is uploading the half-naked images/pictures of the complainant on Facebook and in this way has made her infamous (creating bad reputation) by which she is addle (perturbed). By the said action of the accused/petitioner, the family as also the complainant are intimated with blankness. This has created infamousness/ bad reputation to the complainant which has made her life hell besides creating mental harassment to the complainant."
The contentions raised in terms of the instant petition are that:
(I) The petitioner filed a bail application before the Court of Chief Judicial Magistrate, Budgam, on 26.03.2019, which was returned back to the petitioner with an observation that the offence involved is a special offence and is triable before the Special Judge. Thereafter, the Court of Sessions Judge, Budgam, after considering the matter rejected the bail application on the accused.
(II) The observations made by the learned Sessions Judge are not relating to the seriousness of the offence. If at all, the allegations are proved against the petitioner, then law will take its own course by sending him behind the bars after a full dressed trial.
(III) While going through the provisions of Section 505 (1)(b) RPC, prima-facie, one can easily come to a conclusion that the provisions of this Section are not attracted in the present case. While testing the provisions of Section 505(1)(b) with the allegations made in the FIR, the offence alleged to have been committed by the petitioner, by no stretch of imagination has been committed by the petitioner.
(IV) As per the police report submitted before the court below, the investigation in the case is still going on, therefore, petitioner is liable to be admitted to statutory bail under the provisions of Section 497-B Cr. P. C.
(V)Since the liberty of the petitioner is concerned as he is jail from 25.02.2019, his remaining in jail will tell upon his carrier as well as his health. The provisions of law given petitioner a right of statutory bail which has not been appreciated by the investigating agency by not applying its mind on the facts of the case. Furthermore, provisions of Section 506 and Section 67 of IT Act have not been appreciated properly.
(VI) The FIR has been lodged against the petitioner with some ulterior motive only to demoralize his reputation.
(VII) As per police report, the mobile cell phone where from the objectionable / incriminating material has been found to have been uploaded on Facebook, has been recovered from one Mohammad Shafi Wani s/o Ghulam Hassasn Wani R/o Watred Dalbal and not from the possession of the petitioner. The said person is the would be brother-in-law of the complainant. This vital and important aspect of the matter has been totally ignored and not taken care of.
Heard learned counsel for the petitioner as well as Mr. Javed Iqbal, Sr. AAG.
While learned counsel for the petitioner contended that in view of proviso to Section 497-B Cr. P. C, petitioner is to be admitted to bail by default, learned Sr. AAG seeks time for filing objections. Learned counsel for the petitioner submitted that till objections are filed, application requires to be considered for grant of interim assistance.
It is being further contended by Mr. Altab that there is no scope for taking a contrary view. A person in custody for the commission of offence which is treated as special offence, in terms of provisions of Cr. P. C, has to be released on bail if the investigating is not completed within 14 days. Learned counsel for the petitioner relied on the observations made in the order by the learned Principal Sessions Judge, Budgam, that the investigation had not been completed even on the last date indicated in terms of the provisions for submission of final report. Precisely, it is being stated that the investigation had to be completed within a period of 14 days in case investigating agency intended that the mischief of Section 497-B Cr. P. C should not be attracted in the case.
Ex-facie, there appears to be force in the submission of learned counsel for the petitioner. Accordingly, subject to objections of the other-side, petitioner is admitted to interim bail in case FIR No.35/2019 of Police Station, Khan-sahib, subject, however, to the following conditions:
The petitioner shall furnish bail to the tune of Rs.20,000/ (rupees fifty thousand only) with one surety in the like amount to the satisfaction of the SHO concerned.
He shall not leave the State, without permission of this Court;
He shall appear before this Court on the next date of hearing.
He shall before Investigating Agency as and when directed.
The Investigating Officer concerned shall produce the case diary before this Court on the next date
List again on 13th of May, 2019, in the regular cause list.