The main legal point established in the judgment is that the presumption of innocence, grant of bail as a general rule, and deprivation of personal liberty must be considered as punishment. The court emphasized that even if a prima facie case is established against the accused, the approach of the court in granting bail should be that the accused should not be detained by way of punishment.

JUDGMENT :

MOHAN LAL, J.

1. Applicant/accused indicted in FIR No. 156/2021 dated 17.08.2021 for commission of offences u/s 376/342/506/109 IPC and 67 (a) of IT Act of Police Station Rajbagh District Kathua and lying in custody since 17.08.2021 has claimed bail on the grounds, that he is a citizen of India and a permanent resident of UT of J&K and is entitled to all fundamental, statutory and legal rights enshrined under the Constitution of India including one of individual liberty under Article 21 of the Constitution of India; applicant is not involved in commission of any offence and is aggrieved of order dated 24.09.2021 passed by the Ld. Additional Sessions Judge Kathua whereby his bail application has been rejected; applicant is a young youth of 21 years of age and has old and infirm parents who are suffering from numerous ailments and in absence of his elder brother who is an army personnel serving in Indian Army applicant is the only caretaker of his old parents; it is admitted case of the prosecutrix that it is one Abhi Kumar who called the complainant to his house and thereafter the main accused namely Naman Kumar committed rape upon the complainant/prosecutrix; as per report of the prosecution, and the statement of complainant/prosecutrix it is Abhi Kumar who was recording video from outside the room which prima-facie shows that applicant has not been involved in the alleged offence; the main accused namely Naman Kumar who was juvenile at the time of occurrence has been released on bail by the Juvenile Justice Board Kathua on 28.09.2021; despite knowing the fact that prima-facie no offence is made out against applicant, even the trial court vide order dated 24.09.2021 has rejected his bail application; keeping of the applicant in further custody will amount to punitive detention which goes contrary to the spirit of fair trial as envisaged in the Constitution of India; applicant would neither abscond nor delay the proceedings of the court and will not tamper the prosecution witnesses nor hamper the trial; applicant undertakes to abide by all the terms and conditions set by this Court if released on bail; there is no material on record to believe that applicant/accused is guilty of the offence leveled against him; it is settled law that bail should not be refused as punishment purpose and there is no bar in granting bail when nothing is to be recovered or investigated from applicant, moreso, refusal of bail would amount further incarceration of the applicant in jail.

2. Respondent/non-applicant by filing objections/status report has opposed the bail on the grounds, that the accused is involved in commission of offences u/s 376/342/506/109 IPC and 67(a) of the IT Act on account of the fact that one Abhi Kumar was sitting outside the room while Naman Kumar raped the prosecutrix/victim inside the room. It is contended that as per statement of the witnesses, FSL report, medical report and other circumstance which came to fore during course of investigation, offences u/s 376/342/506/109 IPC and 67(a) of the IT Act have been fully established against applicant/accused, and the accused deserves not to be enlarged on bail.

3. Sh. Jasbir Singh Jasrotia Ld. Counsel for applicant/accused while making out a strong case for enlargement of applicant/accused on bail, has vehemently argued, that the gravity of offence alone cannot be decisive ground to deny bail, protection of personal liberty is required against securing attendance of accused at trial, accused is presumed to be innocent till he is found guilty and convicted, even in the case where prima-facie case exists against the accused the approach of court should be that bail should not be denied as a measure of punishment to teach lesson to the accused for an offence which is yet to be proved. It is argued, that the principal accused who was juvenile at the time of occurrence has already been granted bail, accused has not participated in a crime, bail is rule and jail an exception,