HC directs inquiry against PO & IO, action against Judicial Officer

19/04/2018

JAMMU, Apr 18: In a petition seeking quashment of bail order of Mst. Masooma Bibi in minor kindapping case, Justice MK Hanjura of J&K High Court Jammu Wing while quashing the order of bail passed by the 1st Class Judicial Magistrate RS Pura, with the direction to SSP Jammu to take custody of the accused.
Justice MK Hanjura also directed Registry to place this order before the Chief Justice for initiating appropriate action as deemed fit against the Judicial Magistrate concerned so that the faith of the people on the temple of justice is not shattered and eroded.
Before parting, Justice MK Hanjura observed that it needs must be said that the prosecuting officer and the incharge ASI Police Station R.S. Pura, have suppressed a material fact in the objections filed and the report submitted before the Court. They have not stated anywhere in the objections and the report that in her statement recorded prior in point of time, the prosecutrix has accused the respondent No.3 of compelling her to submit herself to the sexual lust and desire of three persons, who subjected her to forcible rape for a long time. This serious lapse on their part requires a thorough probe. Therefore, it is a fit case where an inquiry should be conducted against the prosecuting officer and the ASI Ghulam Nabi concerned to find their culpability.
Justice MK Hanjura directed Registrar (Judicial) of this wing of the High Court shall forward a copy of this order to the DGP J&K Police for conducting an inquiry into the conduct of the afore-named Officers and he shall report before this Court the result of the inquiry and action, if any, taken against them with utmost dispatch preferably within a period of four weeks. The Registrar (Judicial) shall lay the report before the Court immediately after it is received.
Justice MK Hanjura after hearing both the sides observed that no doubt, this Court is conscious of the fact that elaborate documentation is not required to be made in the bail application, but the law provides that while dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused is charged of having committed a serious offence.Any order de hors such reasons suffers from non-application of mind as is noted by the Supreme Court, in Ram GovindUpadhyay v. Sudarshan Singh.
Justice MK Hanjura further observed that the law evolved on the subject by the Supreme Court provides that although a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet giving reasons is different from discussing merits or demerits. As noted above, at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated.
Justice MK Hanjura further observed that Looking at the instant petition from the perspective of the law laid down above what gets revealedon the face of the statement of the prosecutrix is that a heinous, horrid, and a horrendous crime has been committed by the accused, released on bail, andothers. It is a beastly and an abhorrent act, in which, the accused/respondent No.3is prima facie found to have abetted and facilitated the commission of the offence of rape on a girl of tender age, that too, by a gang of persons for about 20 to 22 days. It is she,the accused/respondent No.3 who appears to have offered her some substance forcibly by which she lost her consciousness. It is she, who compelled the prosecutrix to submit herself to thesexual lust of a number of persons that too for a long time when she was just fifteen years of age. It is she who stripped the prosecutrix and pushed her into a forcible marriage.The learned Magistrate appears to have tried toremain oblivious of these facts although it is she, who recorded the statement of the prosecutrix on 15.09.2017, in which the prosecutrix stated that she was subjected to rape by a battery of persons for about 20 to 22 days. The Assistant Sub. Inspector Police Station, R.S. Pura submitted his report in the bail application on 18.09.2017 i.e. four days after the statement of the prosecutrix was recorded, but he did not bring it to the notice of the Court that the prosecutrix has been subjected to gang rape and the accused/respondent No.3 has facilitated this detestable and abhorrent crime. The prosecuting officer also maintained a complete silence on this aspect in his objections filed before the Court, five days after the statement of the prosecutrix was recorded though he was the person who identified the prosecutrix before the court.
Court further observed that the prosecutrix, forsaken and forlorn, having been subjected to repeated rape as it appears from her statement has suffered at the hands of the Magistrate, the prosecuting officer and the police officer, who tendered the report before the Court. The forgetfulness of such a dastard act on their part appears to be selective. They have not cared even a fig to peep deep into the case and to report the actual occurrence before the Court.The Magistrate has stated in the order impugned that she has perused the application,the objections, the police report and the CD file before arriving at the conclusion that the accused/respondent No.3 deserves to be admitted to bail. However, in case she would have turned the leafs of the CD File minutely, she would have seen and found that in the statement of the prosecutrix recorded by her under Section 164-A R.P.C, theprosecutrix has stated that the accused has been the co-ordinator, designer and the abettor ofthe commission of gruesome crime of repeated rape on her by a battery of persons. No reasons for admitting the accused to bail have been spelt out by the Ld. Magistrate except for the old aged maxims, adages and axioms of law that bail is a matter of judicial discretion provided that the offence does not prescribe the punishment of death or imprisonment of life and that grant of bail is the rule and its refusal is an exception. An order bereft of reasons suffers from complete non-application of mind. The order impugned has been passed by the learned Magistrate in the most casual and cursory manner without looking into the gravity of the offence levelled against the accused/respondent No.3 and without gauging thecapacity of the accused/respondent No.3 and others to influence the witnesses of the prosecution and to turn the case in their favour. The statement of the prosecutrix recorded under Section 164-A Cr.P.C. does bring it to the bear that she was threatened into submission and subjected to beating, which lends sufficient diabolism to the offence.The learned Magistrate has failed to look into the societal concerns. She has forgotten to visualize that the sense of justice of the victim shall be shattered if the accused is released on bail.If the demands of the society and the law would have been applied in the proper perspective,a miscarriage of justice which has resulted in passing the order impugned whereby the accused/respondent No.3 has been admitted to bail would not have occurred.
Justice MK Hanjura further observed that one of the most inhuman acts indulged in is when the animal instincts in a human take possession of him and he sexually assaults an adolescent girl, caring little what bruises he causes her bodily and psychologically. The assault causes psychological, sexual and medical injuries to the victim with no attenuating factors to, in any way, lessen the criminal ferocity. Right from intention down to the act of crime, the intent is fully malicious. No one has come to the rescue of the ill-fated and infelicitous girl child, not even the State that has remained a mute spectator to this abominable crime. The father of the prosecutrix has been forced to move the Court when the state showed its back and buckle. A girl child belongs to all irrespective of the religion, race and caste to which she belongs. Justice has to be meted out to the victim as well. Justice Madan B. Lokur, very recently wrote and I quote, "A child remains a child whether she is described as a street child or a surrendered child or an abandoned child or an adopted child. Similarly, a child remains a child whether she is a married child or an unmarried child or a divorced child or a separated or widowed child. At this stage we are reminded of Shakespeare's eternal view that a rose by any other name would smell as sweet so also with the status of a child, despite any prefix".
Court further observed that looking at the nature of the offence, the ferocity of the crime, the statement of the prosecutrix, the apprehension of threat to the victim at the hands of the accused and co-accused, there was no reason to admit the accused/respondent No.3 to bail in a crime, which has a serious magnitude and it will be a sheer abuse of the process of law, in case the order dated 21.09.2017 vide which the accused/respondent No.3 has been admitted to bail is allowed to continue. Therefore, invoking the jurisdiction of the Court under Section 561-A Cr.P.C., the order impugned whereby the accused/respondent No.3 has been admitted to bail, is quashed as a corollary to which, the accused/respondent No.3 shall be taken into judicial custody by SSP Jammu, who shall file a compliance report on that count. JNF

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