Mohd. Ayub @APPELLANT@Hash Sudesh Kumar And Anr

The instant Revision Petition has been filed against the order dated 07th July, 2012 passed by the Sessions Judge, Rajouri and the order of bail granted by the Judicial Magistrate 1st Class, Nowshera dated 11th July, 2012.

The facts in nutshell are that the petitioner is the complainant and is an army personnel, posted in 6 JAKLI Assam. Respondent No. 1, namely, Sudesh Kumar is an employee in BSF and is posted in Bihar-West Bengal Border. The petitioner has got married with Parveen Akhter more than five years ago. The parents of the said Parveen Akhter are the residents of Village Khark, Tehsil Kalakote and the respondent is the resident of Village Patera, Tehsil Kalakote. Both the villages are situated nearby. After the marriage of the petitioner with said Parveen Akhter, the respondent No. 1 contracted illicit relationship with Parveen Akhter to the ignorance of the petitioner, who is posted in Assam for last one year.

It is stated in the petition that on 17th June, 2012, when the petitioner was on duty at Assam, the petitioner was informed by his brother on mobile phone that on the intervening night of 16th June, 2012, the other family members of the petitioner suspected that Parveen Akhter was talking with someone in her bed room. The said Parveen Akhter was asked to open the door, which she bolted from inside, however, she did not open the door and the inmates bolted door from the outside. After sometime, Parveeen Akhter came out and falsely disclosed that there was none inside, however, on opening the door, the other members of the petitioner saw the respondent inside the room. On coming to know about the said occurrence from his brother, the petitioner rushed home on leave and lodged a written report on 22nd June, 2012 regarding the occurrence before the ASP, Nowshera, who forwarded the same to SHO, Police Station, Nowshera for necessary action. On the said report, the case under Section 457, 497 and 109 RPC was registered in Police Station, Nowshera. During the police investigation, the respondent No. 1 moved a bail application for anticipatory bail before the Sessions Judge, Rajouri, who granted anticipatory bail, however, the Court directed accused to appear before the Competent Court for regular bail for seeking regular bail. Accordingly, he moved an application before the CJM, Rajouri, who transferred the same to Judicial Magistrate 1st Class, Nowshera and thereafter, granted the interim bail.

The petitioner has assailed the aforesaid impugned orders on the following grounds:-

a. That the petitioner who is complainant in the case and at whose instance the case was registered in police station, Nowshera belongs to muslim community, whereas the respondent belongs to another community i.e. Hindu.

b. That the respondent is a BSF employee belonging to a disciplined force, but the act of adultery which has been committed by the respondent no. 1 upon Parveen Akhter, who happens to the wife of petitioner, is again a government teacher posted in a primary school where both boys and girls are studying and the offence of adultery abetted is against the education system.

c. That the Learned Session Judge Rajouri who extended interim anticipatory bail in favour of the respondent and the Learned Judicial Magistrate 1st Class Nowshera who granted regular bail, did not take into consideration the facts that the respondent and the wife of the petitioner have committed an offence which is not only against the society but is sure to cause a communal riots in the area.

d. That the Learned Session Judge was not legally justified by firstly dismissing the application for an anticipatory bail but by the next breath by the same order extending the interim anticipatory bail till 10-07-2012. This is a serious illegality committed by Sessions Judge Rajouri. Once he had dismissed the application, he could not legally review the order of dismissal of the application by extending interim bail granted by him on 02-07-2012 till 10-07-2012.

e. That from the regular bail order granted by Judicial Magistrate 1st Class Nowshera, it appears that the application for regular bail was not moved before him by respondent no. 1 but it was initially moved before CJM Rajouri who had obtained the police report and thereafter chose to transfer the said application along with the police report to Judicial Magistrate 1st Class Nowshera it appears that the accused respondent had neither surrendered either before CJM Rajouri or before the Judicial Magistrate 1st Class Nowshera. In the absence of surrender by the respondent no. 1 before CJM Rajouri the Learned CJM Rajouri, was not competent to transfer the said application along with police report to Judicial Magistrate 1st Class Nowshera who took up the application for regular bail, neither objection from prosecution were called nor the prosecution was heard and it was only the Learned Counsel for the petitioner who was heard of course in the presence of I.O. and SHO Nowshera and passed order of regular bail in favour of the respondent no. 1 on the same day i.e. on 11-07-2012, the day on which he received the application by transfer from CJM, Rajouri. In such a situation the order of regular bail granted by Judicial Magistrate 1st Class Nowshera was not only without application of mind but was in the absence of objections from the prosecution and without hearing the prosecution and that too on the same day without the respondent surrendering before him.

f. That the Learned Judicial Magistrate 1st Class Nowshera has certainly passed the impugned order of regular bail in favour of respondent without jurisdiction, without application of mind and in this way has committed a serious illegality in granting regular bail to the respondent.

I have considered the contention of the learned counsel for the petitioner.

From the perusal of the order dated 07th July, 2012, passed by the Principal Sessions Judge, Rajouri, it is evident that the application for grant of anticipatory bail was dismissed, however, the petitioner was allowed to seek regular bail and in the meantime, interim bail was granted till 10th July, 2012. After 10th July, 2012, this order had become infructuous. Therefore, there is no need to set aside the same.

From the perusal of the order dated 11th July, 2012, passed by the Sub-Judge, JMIC, Nowshera, it is evident that the Court below called the report and CD File and the Investigating Officer was also called. Further, the Court below without inviting any objections, as is evident from the order impugned granted the bail, as the accused (respondent No. 1) surrendered before the Court. Law is very clear that as the offences under Sections 457, 497 RPC are non-bailable, the Court should have granted an opportunity to the prosecuting agency to file the objections, but the order reveals that no such opportunity has been given to the prosecuting agency to file the objections. Therefore, I am of the opinion that the order is not according to law, however, since more than six years have passed, so the bail already granted to the respondent is not required to be set aside.

In view of the above, the instant revision petition is, accordingly, disposed of.