Mohd. Ayub vs U.T of J&K

M A Chowdhary, J

Applicant, namely, Mohd. Ayub, filed the instant bail application, alleging his false implication by complainant, to seek pre-arrest/anticipatory bail in a case registered at Police Station Nowshera vide FIR No. 05/2025 on 08.01.2025, for commission of offences punishable under Sections 333, 64, 62, 76 and 115(2) of BNS, 2023. The applicant has also challenged the chargesheet emanating from the aforesaid FIR by filing CRM(M) No.349/2025 by invoking power of this court under Section 528 of BNSS.

Facts culled out from Perusal of the FIR are that the aforesaid FIR has been lodged against the applicant and his wife by their daughter in law; that on 24.11.2024, the applicant clandestinely entered into the room of the complainant with intention to outrage her modesty, coerced her for sexual intercourse; pressed her breasts and pulled her into an embrace; that as a show of resistance, the complainant protested but the applicant quelled the same and cowed her down with dire consequences in case she speaks up; that the wife of the applicant also joined him in assaulting the complainant, pulled the complainant down, allegedly tore up her clothes; that aforesaid FIR culminated into filing of challan against applicant and his wife for offences under Sections 333, 64, 76, 115(2) and 352 of BNS.

It is the case of the applicant that he, being 74 years old, along with his wife has been falsely and arbitrarily implicated in a false case foisted upon them, rather, it is the complainant, her husband and family, who in the intervening night of 24/25.11.2024 assaulted the applicant and his wife and in that regard, a complaint also stood lodged with the Senior Superintendent of Police, Rajouri on 29.11.2024; that the complaint filed by the complainant is nothing but a counterblast to the complaint of the applicant; that the complainant along with her husband forcibly attempted to grab the house and the land of the applicant and thereby constrained the applicant to file civil suit for permanent prohibitory injunction against the complainant in the court of learned Civil Judge (Senior Division) Nowshera and an interim direction also stands passed in favour of the applicant and against the complainant on 11.12.2024; that to wreak vengeance upon the applicant and his wife, complainant filed another complaint against the applicant on 18.12.2024 before SSP, Rajouri and subsequently, filed application before the court of Judicial Magistrate (Special Mobile Magistrate) Rajouri seeking direction for registration of FIR against the applicant and his wife; that on 03.01.2025, the Special Mobile Magistrate, Rajouri, directed for registration of an FIR; and that is how, FIR No. 5/2025 came to be registered at Police Station Nowshera for commission of offences under Sections 333,64,62,76 and 115(2) BNS, 2023; that the applicant along with his wife approached the Principal Sessions Court, Rajouri, for grant of bail in anticipating of their arrest; that the court below granted bail in anticipation of arrest to the wife of the applicant, but denied the same relief to the applicant. Fearing threat of impending arrest, the applicant approached this court seeking grant of pre-arrest bail/anticipatory bail.

A Co-ordindate Bench of this court, vide order dated 25.04.2025, while issuing notice, admitted the applicant to interim bail subject to furnishing the bail bond with one surety in amount of Rs. 50,000/- to the satisfaction of the Judicial Magistrate (Sub Judge), Nowshera, to the tune of Rs.50,000/- for the fulfilment of the following conditions:

(i) That he shall appear before the Judicial Magistrate 1st Class, Nowshera on 15.05.2025, the date fixed in the case and shall continue to appear before the Court to which the charge-sheet may be committed on each and every date of hearing.

(ii) That he shall not tamper with the prosecution witnesses.

(iii) The petitioner shall not leave the territorial jurisdiction of the UT of J&K except with permission of the committal Court/trial Court.

Pursuant to notice, objections, on behalf of the respondent, stand filed. A perusal whereof would show that offences under Sections 64/333/76/352 BNS stand established against the applicant; that the grant of anticipatory bail in favour of the applicant has been vehemently resisted on the ground that applicant is involved in a heinous and non-bailable offences, as such, he cannot seek bail, as a matter of right; that the offences are heinous and carry punishment of imprisonment of not less than 10 years, which may be extended to life imprisonment; that there is every apprehension that the applicant may tamper with the prosecution evidence and may even jump over the bail. Lastly, it is prayed that relief as prayed for by the applicant in this application be rejected.

Learned counsel for the applicant argued that the applicant is aged 74 years and at this age it is implausible that he would have initiated sexual assault upon none less than his own daughter-in-law; that the son of the applicant, which is husband of the complainant departed to the better world and the complainant remarried and now wants to have a share in the property of the applicant; that there is a civil litigation going on between the parties and the applicant filed a suit for permanent prohibitory injunction against the complainant and her second husband in order to protect the possession over the land owned by the applicant due to which complainant and her husband are making persistent attempts to forcibly dispossess him; that the criminal proceedings launched against the applicant are nothing but a device to harass the applicant so that he cedes his property for the complainant.

Learned counsel for the non-applicant has argued and vehemently opposed the grant of bail in favour of the applicant stating that the applicant in his seventies had ravished his own daughter-in-law, who has been widowed, with the assistance of his wife and that view of dispute between the partition of the property, the applicant had committed such a heinous offence which attracts the sentence, which may extend to life imprisonment. He has also submitted that the investigation of the case has been complete and the charge sheet is subjudice before the Sessions Court, Rajouri. It was prayed that the application be rejected as the applicant is involved in a heinous offence attracting grave punishment.

Heard and considered.

Hon’ble the Supreme Court, in a catena of judgments, has laid down principles for consideration for grant of anticipatory bail and how to exercise the power while granting bail. In Bhadresh Bipinbhai Sheth Vs. State of Gujarat & Anr, reported as 2016(1) SCC(Crl) 240, relied by learned counsel for the petitioners, the Court while granting anticipatory bail for offence under Section 376 IPC has held:

“Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a Constitution Bench Judgment of this Court in the case of Gurbaksh Singh Sibbia and Others v. State of Punjab [1980 2 SCC 565]. The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualized under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the 'touch' or confinement contemplated by Section 46 of the Code.”

The Hon‟ble Apex Court in case titled as "Ajwar Vs. Waseem & Anr" connected with other cases reported as 2024 (6) Scale 461 in paragraph 26 held as under:

"26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, to role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and overall desirability of releasing the accused on bail."

The factual background of the case is that the applicant, who is shown to be aged as 74 years old, with the assistance of his wife was alleged to have committed rape upon his own daughter-in-law, whose husband had passed away. The non applicants have not pointed out the contravention of any of the conditions of the interim bail by the applicant herein after the grant of interim bail in his favour. Without commenting upon the merits of the case lest it may prejudice the trial before the trial court, the matter for grant of bail in anticipation of arrest is to be considered, particularly, in the face of the fact that the applicant is not required for the custodial interrogation for completion of the investigation which has already been concluded into a charge sheet filed before the court. Learned counsel for the applicant submits that the applicant has been charge-sheeted whereas his wife has been discharged from the commission of the offences. This assertion made by the learned counsel for the applicant has not been disputed by the counsel opposite.

Having regard to the decisions rendered by Hon’ble Supreme Court in the cases referred above, the allegations and objections filed by the Investigating Agency, strained relations of the parties over property dispute and considering the nature of the offences with which the applicant has been charged and also viewing that bail is the rule and jail is the exception, this Court is of the considered opinion that the applicant is entitled to be admitted to bail, particularly so when there are allegations and counter allegations which require full blown trial. It will be in the interest of justice if the interim bail granted to the applicant is made absolute.

In the aforesaid backdrop of the matter, the law discussed above and in view of the facts and circumstances of the case in hand, the bail application is allowed and the interim bail granted to the petitioner/applicant vide order dated 25.04.2025 is made absolute subject to all the conditions therein.

The bail application is, ‘disposed of’ along with connected application(s).