Bail is the rule and jail is the exception; denial of bail must be justified by exceptional circumstances.

JUDGEMENT

1. This is an application with a prayer for release of applicant- accused, presently facing trial before Principal Sessions Judge Shopian, for short trial court, in case FIR No. 55 of 2021 u/s 363, 376 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), on bail, on the grounds that he has already suffered incarceration for about 2 years and 6 months even though falsely implicated in the aforesaid case.

2. Per contra in the objections filed by the respondents the bail plea has been opposed on the count that applicant/accused is involved in a serious offence and the bail petition presented by him before the trial court has already been dismissed. During course of arguments, learned counsel have reiterated the contents of petition and memo of objections.

3. I have heard learned counsel and considered the matter. It appears that on 26th May, 2021 a complaint was received by the Police Station Haipora, Shopian from complainant Abdul Hamid Sheikh to the effect that his daughter aged 16 years was not available at home when he returned from his orchards and during the process of searches he came to know that she has been kidnapped by the accused Nawaz Ahmad Sheikh, Gulzar Ahmad and Adil Ahmad Sheikh who were riding a motor cycle bearing registration No. JK18-7798. A case FIR no. 55/2021 for the commission of offences punishable under sections 363, 109 IPC was registered. During the course of investigation the accused Nawaz Ahmad was arrested and the girl was recovered from his possession and the offence punishable in terms of Section 4 of the POCSO Act was added. The other two accused were dropped as they could not be connected with the crime. The investigation conducted ultimately culminated in institution of the case against the accused in the court of Principal Sessions Judge Shopian, where it is reported to be posted for recording the statement of the applicant under section 342 CrPC on 31.7.2024. A bail petition was filed by the applicant on 29th March 2023 before trial court and the same has been dismissed vide order dated 11th September, 2023 on various grounds.

4. The learned counsel for the petitioner referred to and relied upon the judgments of the Apex Court rendered in cases titled [1]Arnab Manoranjan Goswami v. State of Maharashtra and others reported as (2021) 2 SCC 427; [2]Satender Kumar Antil v. Central Bureau of Investigation and another reported as (2022) 10 SCC 51. Whereas the learned counsel for the respondents referred to and relied upon the Apex Court judgment rendered in cases titled [3]Ram Govind Upadhyay v. Sudarshan Singh and others; State of U.P. v. Naushad; Mandhari v. State of Chattisgarh; and [4]Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another, reported as 2002 (2) Supreme 457; AIR 2014 SC 384 : AIR 2002 SC 1961 and 2004 (4) Supreme 84 respectively.

5. It is a fact that accused is involved in an anti social penal offence, but at the same time his involvement presently is at the stage of an accusation only though a serious one, the factum of alleged commission of crime- disputed by petitioners' counsel on various factual and legal pleas, notwithstanding. Law is well settled, that in any case bail cannot be withheld as a measure of punishment, and ordinarily with-holding it, should be an exception only, to be involved in exceptional circumstances attending a particular case. Nothing has been pointed out or brought on record to suggest that the case in hand has any such exceptional feature as could justify withholding bail, to the applicant, particularly because the applicant/accused has already suffered incarceration for around 2 years and 6 months and the case having already been instituted, evidence closed there is no scope for hampering the investigation. The applicant/accused is stated to be an ailing person, also deserves consideration for limited purpose of the bail & in overall circumstances of the matter particularly the prolonged incarcer