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IN THE HIGH COURT OF JAMMU & KASHMIR AND

LADAKH AT SRINAGAR

Reserved on: 29.05.2024

Pronounced on: 07.06.2024

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Bail App No.17/2024

MOHAMMAD SULTAN RESHI

SHABNAM MUSHTAQ & ORS

ZAHID AHMAD LONE & ORS. ... PETITIONER(S)

Through: -Mr. Munir Ahmad Bhat, Adv. (in Crl. R. No.07/2023)

Mr. Musavir Mir, Adv. (in Crl. R. No.16/2023 & Bail App No.17/2024)

Vs.

UT OF J&K & OTHERS …RESPONDENT(S)

Through:-Mr. Satinder Singh Kala, AAG, with

Ms. Rahella Khan, Assisting Counsel.

CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE

JUDGMENT

1) By this common judgment, the afore-titled two

criminal revision petitions, one filed by petitioner

Mohammad Sultan Reshi (Crl. R No.07/2023), other filed

by petitioners Shabnum Mushtaq, Gulshana Begum and

Ishfaq Ahmad (Crl. R No.16/2023), and bail application

(Bail App No.17/2024) filed by petitioners Zahid Ahmad

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Lone, Mushtaq Ahmad Lone and Irshad Ahmad Dar, are

proposed to be disposed of. All these petitions arise out of a

case emanating from FIR No.130/2022 for offences under

Section 363, 109, 376, 511, 366-A, 354-B, 506 IPC and

Section 8, 12 of POCSO Act registered with Police Station,

2) As per the prosecution case, father of the victim lodged

a report with police on 16.05.2022 alleging therein that his

minor daughter has been kidnapped by petitioners Zahid

Ahmad Lone and others including his father, brothers,

mother and sisters. On the basis of this report, FIR

No.130/2022 for offences under Section 363/109 of IPC

was registered. During the course of investigation, the

victim was recovered but when she was taken for

conducting her medical examination, she refused to subject

herself to medical examination. According to the

prosecution, the victim was produced before the Child

Welfare Committee and the members of the said Committee

persuaded the victim to undergo medical examination,

whereafter she was subjected to medical examination. It

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was revealed that no penetrative sexual assault had taken

place with the victim.

3) The statement of the victim under Section 164 of the

Cr.P.C was recorded before the Magistrate. In her statement

she deposed that on 16

th May, 2022, while she was waiting

to board a bus at the bus stop for going to the house of her

uncle, two unknown persons came over there on a

motorcycle. They sprinkled some chemical upon her,

whereafter she was made to board an Alto vehicle in which

petitioner Zahid Ahmad Lone was already seated. Even

prior to this incident, the aforesaid person was teasing and

threatening her. She was taken in the vehicle to some

unknown location. When she regained her senses, she

found herself in a secluded house. In the said house,

besides petitioner Zahid Ahmad Lone, petitioner Irshad

Ahmad Dar was also present. The petitioners Zahid Ahmad

Lone and Irshad Ahmad were telling each other that they

would make the victim nude and make video recording of

the same in order to demand a ransom from the father of

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the victim. She further stated that petitioner Zahid Ahmad

Lone intended to commit rape upon her and while she was

unconscious, the aforenamed two persons undressed her.

She also stated that she does not know as to how many

times, the aforenamed petitioners committed rape upon her

but after regaining her senses, the two accused tried to

commit rape upon her which she resisted and did not allow

it to happen. However, her clothes were torn apart by them.

During whole of this episode, petitioner Zahid Ahmad Lone

was in contact with his sister, petitioner Shabnam Mushtaq

and his father Mushtaq Ahmad on telephone and they were

imparting instructions to the said petitioner. The sister of

petitioner Zahid Ahmad Lone was asking him to kill the

victim. She further stated that brother of petitioner Zahid

Ahmad Lone, namely, Ishfaq Ahmad also came on spot and

he tried to strangulate her. She was taken in a vehicle,

which perhaps belonged to maternal uncle of petitioner

Zahid Ahmad Lone, Ghulam Hassan Lone, the uncle of

petitioner Zahid Ahmad Lone, was also present in the said

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vehicle. They threatened to kill her only brother in case she

deposed against them. According to the victim, these

persons were talking to each other in the vehicle that the

victim needs to be killed by administering an injection to

her. Thereafter the victim was taken to the house of Ghulam

Hassan Lone and due to the pressure of police, said

Ghulam Hassan Lone called her maternal uncle and she

was handed over to him.

4) After recording the statement of the victim,

accused/persons petitioners Zahid Ahmad Lone, Mushtaq

Ahmad Lone, Ghulam Hassan Lone, Irshad Ahmad Dar,

and Mohammad Sultan Reshi were arrested on 22.05.2022

whereas accused Ishfaq Ahmad Lone, Gulshan Begum and

Shabnam Mushtaq could not be arrested as they had

absconded. The Investigating Agency found that offences

under Section 363, 109, 376, 366-A, 506, 511, 354-B IPC

and Section 8 and 12 of POCSO Act are found proved

against the above-named accused and, accordingly, the

challan was laid before the trial court.

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5) Heard and considered.

Crl. R No.07/2023

6) The instant criminal revision has been filed by

petitioner Mohammad Sultan Reshi. It has been contended

by the petitioner that there is no material on record in the

challan laid against him before the learned trial court as

would even remotely suggest his involvement in the alleged

occurrence. Therefore, there was no occasion for the

learned trial court to frame charges against him in terms of

the impugned order dated 31.12.2022.

7) As per the provisions contained in Section 31 of the

POCSO Act, the provisions of the Code of Criminal

Procedure apply to the proceedings before a Special Court

and for the purposes of the said provision, a Special Court

has to be deemed as a Court of Sessions. Therefore, the

procedure prescribed for trial before a Court of Session is

to be followed by a Special Court under POCSO Act. Thus,

the question of charge and discharge of accused in the

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present case has to be governed by the provisions contained

in Section 227 and 228 of the Cr. P. C.

8) Section 227 of the Cr. P. C provides that if, upon

consideration of the record of the case and the documents

submitted therewith and after hearing the submissions of

the accused and the prosecution, the Sessions Judge

considers that there is no sufficient ground for proceeding

against the accused, he has to be discharged. Similarly,

Section 228 of the Cr. P. C provides that, if upon

consideration of the record of the case and hearing the

accused and the prosecution, the Sessions Judge is of the

opinion that there is ground for presuming that the accused

has committed the offence, a charge has to be framed

against him.

9) The object of the aforesaid provisions is to ensure that

an accused is not tried in respect of a frivolous and

vexatious charge and unless there is some material for

proceeding against him, he should not be put to trial. In

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order to ascertain whether or not there is sufficient ground

for proceeding against the accused, a Sessions Judge has

only to sift the material available on record and if such

material, prima facie, discloses that there are suspicious

circumstances against the accused, a charge has to be

framed against him. However, if the material on record,

even if fully accepted, shows that there is no sufficient

ground for proceeding with the trial against the accused, he

has to be discharged.

10) With the aforesaid legal position in mind, let us now

advert to the facts and the material on record. Petitioner

Mohammad Sultan Reshi happens to be the maternal uncle

of the main accused, namely, Zahid Ahmad Lone. As

already stated, the victim during her statement under

Section 164 of Cr. P. C has only made a reference to the

vehicle of maternal uncle of accused Zahid Ahmad Lone.

She has stated that after the occurrence, she was made to

board another vehicle which, according to her, perhaps

belonged to maternal uncle of Zahid Ahmad Lone. She has

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not even named petitioner Mohammad Sultan Reshi in her

statement. Even if it is assumed that the maternal uncle, to

which the victim has referred, is the petitioner herein, still

then merely because after the occurrence she has been

made to board a vehicle belonging to petitioner Mohammad

Sultan, who was not even present on spot, it cannot be

stated that he had any involvement in the alleged

occurrence.

11) The statements of other prosecution witnesses

recorded under Section 161 of Cr. P. C including the

statement of father the victim, would also reveal that they

have not stated anything with reference to involvement of

petitioner Mohammad Sultan Reshi. Therefore, there is

absolutely no material on record of the challan to even,

prima facie, show the involvement of petitioner Mohammad

Sultan Reshi in the alleged crime.

12) The learned trial court while framing charges against

petitioner Mohammad Sultan Reshi has not distinguished

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his case from the cases of other accused and has

mechanically proceeded to frame charges against him as

well. The impugned order passed by the trial court to the

extent of framing charge against petitioner Mohammad

Sultan Reshi has resulted in material illegality which

deserves to be revised by this Court in exercise of its

revisional jurisdiction. The impugned order is, therefore,

not sustainable in law and deserves to be set aside to the

aforesaid extent.

Crl. R No.16/2023

13) Petitioners Shabnam Mushtaq, Gulshan Begum and

Ishfaq Ahmad Lone have challenged order dated

31.12.2022 passed by the learned Sessions Judge,

Kupwara, whereby charges have been framed against the

accused.

14) A perusal of the impugned order passed by the trial

court reveals that charges for offences under Section 363,

109, 376, 511, 366-A, 354-B, 506 IPC and Section 8, 12 of

POCSO Act have been framed against all the accused except

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the petitioners herein, who were absconding and, as such,

were not present before the Court at the time of framing of

the charges. A perusal of the trial court record reveals that

the petitioners in Crl. R. No.16/2023 have not even

participated in the proceedings before the trial court as yet.

In these circumstances, the challenge launched by the

aforenamed three petitioners to charges framed against the

other accused is without any locus standi. The charges

against these petitioners are yet to be framed by the learned

trial court and they are yet to participate in the proceedings

before the said court.

15) In the face of aforesaid position, the petitioners have

no locus standi to challenge impugned order dated

31.12.2022. Therefore, the criminal revision petition

No.16/2023 deserves to be dismissed leaving it open to the

petitioners to surrender before the learned trial court and

urge all those grounds that have been urged by them before

this Court before the trial court at the time of consideration

of question of charge/discharge.

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Bail App No.17/2024:

16) Petitioners Zahid Ahmad Lone, Mushtaq Ahmad Lone

and Irshad Ahmad Dar have invoked jurisdiction of this

Court under Section 439 of the Cr. P. C for grant of bail in

their favour in FIR No.130/2022 for offences under Section

363, 109, 376, 511, 366-A, 354-B, 506 of IPC and Section

8, 12 of POCSO Act registered with Police Station ,

Handwara.

17) In the application it has been submitted that the

petitioners have been arrested on 22

nd May, 2022 and

during pendency of the case before the trial court, co-

accused Ghulam Hassan Lone and Mohammad Sultan

Reshi have already been enlarged on bail. It has been

further submitted that the petitioners have been

unnecessarily implicated in the case and that the victim,

who was aged more than17 years at the relevant time, was

having a love affair with petitioner Zahid Ahmad Lone. It

has been submitted that the victim was beaten up by her

parents, as a result of which she voluntarily left her home

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and joined the company of petitioner Zahid Ahmad Lone. It

has been further submitted that the story projected by the

victim in her statement under Section 164 of Cr. P. C is

absolutely false and frivolous. It has been further submitted

that the petitioners had approached the learned trial court

for grant of bail but their bail application was rejected in

terms of order dated 27.06.2023 passed by the trial court.

18) According to the petitioners, the trial of the case has

substantially progressed and the statement of the victim

has already been recorded before the trial court, as such,

they deserve to be enlarged on bail.

19) The bail application has been resisted by the

respondents on the ground that the petitioners are involved

in a heinous crime. It has been submitted that if the

petitioners are released on bail, it will have a deleterious

effect on the minds of the general public which will have

serious ramifications upon the larger public interest.

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20) So far as principles for grant of bail are concerned, the

Supreme Court and various High Courts of the Country

have laid down guidelines regarding the same. In the case

of Deepak Yadav vs. State of Uttar Pradesh, (2022) 8 SCC

559, the Supreme Court noted the considerations for a

Court while granting bail to an accused and enumerated

the same in the following manner:

1. Whether there is any prima facie or reasonable ground

to believe that the accused had committed the offence;

2. Nature and gravity of the accusation;

3. Severity of punishment in the event of conviction;

4. Danger of the accused absconding or fleeing, if released

on bail;

5. Character, behaviour, means, position and standing of

the accused in the society;

6. Likelihood of the offence being repeated;

7. Reasonable apprehension of the witnesses being

influence;

8. Danger of course of justice being thwarted by grant of

bail;

21) In the instant case, since the petitioners have also

been booked for offences under POCSO Act, as such, while

considering the bail application, we have to keep in mind

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the provisions contained in the said Act, particularly those

contained in Section 29 of the said Act. As per the

provisions contained in Section 29, in a case where a

person is prosecuted for committing or abetting or

attempting to commit any offence under Sections 3, 5, 7 or

9 of the Act, a presumption arises that such person has

committed the said offence.

22) Since the petitioners are facing trial for charges under

Section 8 and 12 of the POCSO Act, as such, the provisions

contained in Section 29 of the Act are not attracted to the

present case. Therefore, presumption of culpability which

arises in case of offences defined under Sections 3, 5, 7 and

9 of the POCSO Act in terms of Section 29 of the said Act

would not get attracted to the present case. The same has

to be, therefore, dealt with keeping in mind general

principles for grant of bail, on the basis that presumption

of innocence is attached to the petitioners. However, while

considering the question of grant of bail to an accused in

the matters relating to sexual offences, especially under

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POCSO Act, the following considerations are also to be

taken into account:

(1) Age of the victim;

(2) Age difference between the victim and the accused;

(3) Ferociousness of the offence;

(4) Relationship between the victim and the accused;

(5) Vicinity of residence of the accused and the victim

and if they are in proximity and then if the accused

is willing to reside elsewhere till the pendency of

the trial;

23) With the aforesaid legal position in mind, let us now

advert to the facts of the present case. The victim in her

statement has alleged that she was kidnaped by petitioner

Zahid Ahmad Lone and taken to a secluded house where

petitioner Irshad Ahmad Dar was also present. She has

alleged that both Zahid Ahmad Lone and Irshad Ahmad Dar

attempted to commit rape upon her. The allegation against

accused Mushtaq Ahmad Lone is that he was in touch with

his son i.e. petitioner Zahid Ahmad Lone on telephone,

meaning thereby he was not even present on spot.

Therefore, to the extent of petitioner Mushtaq Ahmad Lone,

even if the prosecution case is assumed to be correct, prima

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facie, it can be stated that he is not involved in the alleged

crime.

24) That takes us to the roles of petitioner No.1 and

petitioner No.3. Learned counsel for the petitioners has

argued that there was a love affair between petitioner No.1,

Zahid Ahmad Lone and the victim. The age of petitioner

No.1 is stated to be 20 years and the age of the victim as

per her date of birth certificate, which is available on the

record of the challan, as on the date of alleged incident was

about 17 years. Thus, there is a difference of only three

years in the age of the victim and the age of the main

accused, both of whom are at the threshold of their youth.

25) Learned counsel for the petitioners has also

contended that there is evidence on record in the shape of

statement of the victim recorded during trial of the case that

she was in constant touch with petitioner Zahid Ahmad

Lone even prior to the occurrence, meaning thereby that

there was an affair between the two. On this basis, it has

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been urged that it is not a case of kidnapping but it is a

case where the victim girl has left her house out of her own

volition to join the company of petitioner No.1. According to

the learned counsel, the victim is a well-educated girl and

even if she is minor, she has attained the age of discretion.

Therefore, it cannot be stated that she was forcibly taken

away by the petitioners.

26) Without commenting upon the merits of the

contentions raised by the learned counsel for the

petitioners on the aforesaid aspects of the matter, lest it

may prejudice the case of the prosecution, it appears that

there is some substance in the arguments advanced by

learned counsel for the petitioners. Thus, prima facie, the

petitioners have succeeded in making out a case for grant

of bail in their favour even on merits.

27) Apart from the above, a perusal of the trial court

record reveals that statement of the victim as well as the

statements of other prosecution witnesses excepting the

statement of the Investigating Officer, have been recorded

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before the trial court. Thus, if the petitioners are enlarged

on bail, there is absolutely no chance of the witnesses

getting intimidated or there being any apprehension of

tampering with the prosecution evidence. The prosecution

has not placed on record any material to show that the

petitioners are habitual offenders and in case they are

admitted to bail, they are likely to repeat similar offences.

Thus, on this ground also, a case for grant of bail is made

out in favour of the petitioners.

28) Accordingly, all the petitions are decided and disposed

of in the following manner:

(I) Crl. R No.7/2023 is allowed and the impugned

order dated 31.12.2022 passed by learned

Sessions Judge, Kupwara, to the extent of framing

charge against petitioner Mohammad Sultan

Reshi, is set aside and he is discharged of the

offences alleged against him. His bail and surety

bonds shall stand discharged.

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(II) Crl. R No.16/2023 is dismissed with liberty to the

petitioners therein to surrender before the trial

court and participate in the proceedings, with a

further liberty to urge all the available grounds

before the trial court at the time of consideration of

question of charge/discharge.

(III) Bail App No.17/2024 is allowed and the

petitioners therein are admitted to bail subject to

the following conditions:

i. That they shall furnish personal bonds in the

amount of Rs.50,000/ each with one surety each of

the like amount to the satisfaction of the learned

trial court;

ii. That they shall appear before the trial court on

each and every date of hearing;

iii. That they shall not leave the territorial limits of the

Union Territory of J&K without prior permission of

the learned trial court;

iv. That they shall not tamper with the prosecution

witnesses.

(Sanjay Dhar)

Judge

Srinagar,

07.06.2024

“Bhat Altaf-Secy”

Whether the order is reportable: Yes/No

Mohammad Altaf Bhat

I attest to the accuracy and

authenticity of this document

07.06.2024 17:08