Farooq Ahmad Dar vs Sho P/S Women, Kupwara & Ors

Rajnesh Oswal, J

1) The petitioner figures as an accused in charge sheet titled ‘UT of J&K vs. Farooq Ahmad Dar’ pending before the Court of Additional Sessions Judge (PO FTC), Kupwara (hereinafter referred to as “the trial court”), facing trial for the commission of offences under Section 376, 506 IPC arising out of FIR No.17/2022 dated 13.06.2022 registered with Police Station, Women, Kupwara.

2) The petitioner had filed an application for grant of bail in the above-mentioned chargesheet but the same was dismissed by the learned trial court vide order dated 26.05.2023. After the rejection of the bail application, the petitioner has filed the present petition for grant of bail on the ground that he has been falsely implicated and arrested in the aforesaid FIR. It is stated that the prosecutrix is the step daughter of the petitioner and because of family dispute, the petitioner was falsely implicated in the commission of offence of rape. It is further averred that the learned trial court rejected the bail application of the petitioner on the ground that the statement of PW-4 was yet to be recorded whereas the fact remains that her statement was recorded on the day when the bail application of the petitioner was dismissed by the learned trial court. It is also urged by the petitioner that there are material inconsistencies in the evidence of the prosecution which further substantiates the contention of the petitioner that he has been implicated falsely.

3) The respondents have filed the response stating therein that there are serious allegations against the petitioner that he has sexually abused his step-daughter and, as such, he deserves no leniency.

4) Learned counsel for the petitioner submitted that the prosecution has concluded its evidence and now the case is pending for defence evidence and, as such, there is no apprehension that the petitioner would tamper with the prosecution evidence. He further argued that there are material inconsistencies in the evidence led by the prosecution, as such, the petitioner deserves to be enlarged on bail. Learned counsel for the petitioner has placed reliance upon the judgment of the co-ordinate Bench of this Court in the case titled Showkat Ahmad War vs. UT of J&K Bail App No.121/2021 decided on 09.03.2022).

5) Per contra, Mr. Furqan Yqoob, learned GA, has argued that the petitioner has committed heinous offence of rape upon his step-daughter and the prosecution without any delay has produced the witnesses before the trial court, as such, the petitioner does not deserve to be enlarged on bail.

6) Heard and perused the record.

7) This Court has perused the statement of the prosecutrix and this Court would not like to comment upon the veracity of the statement of the prosecutrix, lest it should prejudice either of the parties during the trial of the case which has almost reached the stage of conclusion. It is settled law that while deciding a bail application, the evidence led in the case cannot be appreciated though looked in to, for the limited purpose for finding out as to whether there is any evidence or not. The Court cannot meticulously consider and appreciate the evidence led by the prosecution while deciding the bail application. Reliance is placed upon the judgment of the Hon’ble Apex Court in the case of “Satish Jaggi v. State of Chhattisgarh, (2007) 11 SCC 195”, where in it has been observed as under:

Normally if the offence is non-bailable also, bail can be granted if the facts and circumstances so demand. We have already observed that in granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence. A reading of the order of the learned Chief Justice shows that the nature and the gravity of the offence and its impact on the democratic fabric of the society was not at all considered. We are more concerned with the observations and findings recorded by the learned Chief Justice on the credibility and the evidential value of the witnesses at the stage of granting bail. By making such observations and findings, the learned Chief Justice has virtually acquitted the accused of all the criminal charges levelled against him even before the trial. The trial is in progress and if such findings are allowed to stand it would seriously prejudice the prosecution case. At the stage of granting of bail, the court can only go into the question of the prima facie case established for granting bail. It cannot go into the question of credibility and reliability of the witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during the trial.

In the present case, the findings recorded by the learned Chief Justice, as referred to above, virtually amount to the regular trial pointing out the deficiency and reliability/credibility of the prosecution evidence. Such findings recorded at the stage of consideration of bail, in our view, cannot be allowed to sustain.

8) In view of the above, this Court is not inclined to grant bail to the petitioner at this stage when the trial has almost reached the stage of culmination, however, the learned trial court is directed to conclude the trial as expeditiously as possible, preferably within a period of two months from the next date to be fixed by the trial court after the receipt of this order, as it is only the petitioner who has to lead evidence in defence.

9) A copy of this order be sent to the learned trial court for information and compliance.