Sessions Judge Poonch passed strictures against SSP, SHO Poonch in POCSO case bail

HC stays adverse remarks against SHO Poonch

02/04/2024

JAMMU, Apr 1: The High Court of J&K and Ladakh at Jammu comprising of Justice Sanjay Dhar has issued notice to the respondent Imtiyaz Ahmed and in the meanwhile directed that the impugned remarks/ strictures passed against the petitionershall remain stayed.
This stay order was passed by the High Court in a petition filed by SHO Poonch Kunal Singh Jamwal through: Mr. Aseem Kumar Sawhney, Advocate withMs. Tehseena Bukhari,Advocate wherein the petitioner has challenged orderdated 15.03.2024 passed by the learned Sessions Judge, Poonch, wherebycertain adverse remarks/strictures have been passed against the petitioner andSSP, Poonch while passing a bail order in a case under POCSO.
Mr Aseem Sawhney counsel for the petitioner submitted that the impugned remarkshave been passed by the Sessions Judge without hearing the petitioner and the SSP Poonch and without giving any opportunity to him to explain the matter.
Adv Aseem Sawhney submitted before the High Court that the Petitioner is a police officer on the rank of Inspector and presently posted as SHO in Police Station Poonch and has been compelled to file the present petition against the order passed by the Principal Sessions Judge, Poonch (Respondent no.2)dated 15/3/2024 passed in file number 04/2024/Bail application, CNR no. JKPN010000352024; titled Imtiyaz Ahmed versus UT of J&K wherein while passing the order of bail in serious offences like 363,366 IPC read with 4/8 of POCSO Act the Court has passed strictures / adverse remark against the Petitioner as well as SSP, Poonch which not only has brought down the morale of the officers but has also compelled the Petitioner to raise and escalate the matter before this High Court to save his honour, dignity and career.
He further submitted that 21-2-24 an FIR was registered bearing number 35/2024 under section 363 IPC in the police station Poonch after receiving a written application of complainant namely Mohd Azam S/O Hayat Bakash R/o Khanater Tehsil Haveli Distt Poonch wherein the complainant Mohd Azam in his application submitted before the SHO Police StationPoonch that his minor daughter (name withheld) has been kidnapped/abducted on the way to her school.On receiving this application the Petitioner got the FIR registered and entrusted the investigation to PSI Prince Jasrotia. During the course of investigation,the formalities under law were completed and the statement of the witnesses were recorded, date of birth certificate of the victim was procured and offence under 366 IPC was also added. After the statements of the witnesses were recorded, as a matter of fact one vehicle Tata Magic bearing registration number JK12C-7164 was also seized which was used in the commission of offence from Muradpur; Rajouri and on the disclosure of the brother of the victim, the uniform, schoolbag and books were also recovered from the seized vehicle of the accused (Imtiyaz Ahmad) herein, Respondent No.1.After hectic efforts, the minor girl was traced and recovered from the custody of the accused and the accused was also arrested on 25/2/24. The medical examination of the minor was also conducted with the consent of the parents from District Hospital Poonch on 25/2/24 and the minor was after the medical examination was handed over to the Child Welfare Committee, Poonch for further action.
On 5/3/24 the CJM Poonch rejected the application for remand, however in the Bail application filed by the accused/ respondent no. 1 the Court directed to file status report, thus bail was not granted initially and the order for grant of bail was awaited. On 6/3/2024, that is very next day the UT/ Police department filed a Revision Petition under section 397 Cr.PC against Respondent No. 1 challenging the impugned order of rejection of remand order passed by the Ld. CJM Poonch.That in the interregnum periodoffences under section 4 and 8 of the POCSO Act were also added on the basis of further evidences collected by the investigating officer. On 7/3/24 the investigating officer also received the medical report of victim/minor which which clearly evidenced the victim was sexually assaulted/ sexual activity during this period of abduction and since minor's consent does not matter, and having a a recent history of sexual activity/assault coupled with the fact that the said minor under mysterious circumstances was retracting from her statement/version told to the CWC and her family, therefore the /Police being duty-bound decided to further probe the matter.
Mr Sawhney submitted the copy of the order dated 7.3.2024 dismissing the Revision petition was provided on to the prosecution on 11/3/2024 and after getting the certified copy of the order/judgement dated 7/3/24 (on 11.3.2024) and finding the revision petition dismissed the by the Ld. Sessions Court and the remand not having been granted the petitioner was in a quandary and on 9/3/2024 itself, released the respondent no 1/accused on his personal bond and surety bond and handed him over to his family members terming it as "home protection"and on 9.3.2024 the accused was out of custody as he had no restraint on his movement.
On 12.3.2024 the date in the bail application was fixed wherein the detailed report was submitted by the petitioner as SHO Police Station Poonch in which it was submitted clearly that the accused / respondent no. 1 was now out of Police Station and was in his home terming it as home protection, however, there was no restraint on his movement and it was submitted that accused has already been shifted to his home under his family protection and with the direction to produce him daily before the police station until any appropriate order is received.That since the accused was no longer in police custody and was handed over to his family on 9/3/2024 against the proper signatures and receipt, thus the respondent no. 2 / Ld Sessions Judge Poonch had become "functus officio" and could no longer grant bail as regular bail can be granted where accused is in custody but since in view of the fact that there was no remand order under section 167 CrPC with the petitioner therefore the accused/ respondent no. 1 in essence was out of custody, however instead of disposing/dismissing the bail application on this count, the Ld Pr Sessions Judge Poonch / respondent no. 2 passed the impugned order not only granting bail to the accused/ respondent no. 1 but also venting its anger and passing adverse remarks against the SSP Poonch and the SHO Poonch / petitioner herein in a petition that had virtually become infractous.
It was submitted that on 15/3/2024 the respondent no. 2 (Principal Sessions Judge) directed grant of bail to the respondent no.1 (accused in the said FIR number 35/2024 under section 363, 366 and 4/8 of POCSO act) and while passing the order dated 15/3/2024 the Ld. Principal Sessions Judge, Poonch has passed strictures /adverse remarks against the SSP Poonch as well as SHO presently the petitioner in the impugned paras, unfortunately which order is not governed by the principles of justice, fair play and and restraint.
On hearing the arguments of counsel Aseem Kumar Sawhney for the SHO Poonch, the High Court issued notice to respondent No. 1 and Court directed "in the meanwhile, the impugned remarks/strictures passed against the petitionershall remain stayed.”

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