Bail may be granted where charges do not warrant death or life imprisonment, especially when familial opposition is a factor.

JUDGEMENT

1. Petitioner through the medium of this bail application under section 439 of the Code of Criminal Procedure seeks grant of bail in a case registered vide FIR No. 0124/2023 (in short the “impugned FIR”) for commission of offences punishable under sections 376, 366 & 34 IPC registered at Police Station, Kathua, asserting therein that he has been arrested and lodged in District Jail, Kathua.

2. It has been pleaded that the petitioner married a girl aged about 22 years by entering into marriage agreement and also performed Nikah as per Muslim personal law on 31.01.2023; that since the wife of the petitioner, who was of the age of majority had performed marriage with the petitioner of her own, without the consent of her family, her father, namely, Bashir Ahmed lodged missing report about her daughter on 18.02.2023 and later, the impugned FIR was registered for commission of the aforementioned offences; that the petitioner and his wife, who has been shown as prosecutrix in the case registered against the petitioner, preferred a petition under section 482 CrPC before this Court and this Court vide order dated 26.05.2023 had stayed the investigation, subject to objections from the other side and till next date of hearing.

3. It has been alleged that the respondent-police on mindful of the order passed by this Court in CRM(M) No. 476/2023 titled, “Raju Din & Anr. Vs. UT of J&K” carried on with the investigation and also arrested the petitioner and he was remanded to custody. It has also been asserted that the wife of the petitioner had joined him and it was prayed that the petitioner be admitted to bail.

4. Pursuant to notice, the respondent filed the response, asserting therein that on recovery of the prosecutrix during the proceedings of the missing report lodged on 18.02.2023, she deposed in her statement that she was kidnapped by the petitioner herein, who is aged about 40/45 years in the intervening night of 30th/31st January, 2023 alongwith two unknown persons forcibly, under the threats and took her to Hissar Haryana, where she was subjected to rape and on the basis of the statement of the prosecutrix, the case was registered vide impugned FIR at Police Station, Kathua for commission of the aforementioned offences; that after investigation of the case, the petitioner was found to have committed offences punishable under sections 376, 366, 504 & 506 IPC on 24.06.2023 and the charge-sheet was produced before the Court of law. It has been asserted that the order passed by this Court in the petition under section 482 CrPC had not been brought to the notice of the concerned police, therefore, the investigation was carried out and charge-sheet was laid. It was prayed that the instant bail application be rejected, in view of grave nature of the offences.

5. Learned counsel for the petitioner, at the very outset, argued that the petitioner has been facing incarceration in a false case of abduction and rape of his own wife. He has further argued that the petitioner had married the prosecutrix on 30.01.2023 and when the case was registered by the father of the prosecutrix, who was not in favour of the marriage of his daughter with the petitioner, the petitioner moved this Court under section 482 CrPC, seeking quashment of FIR on 02.05.2023 and this Court vide order dated 26.05.2023 had passed an interim order, staying the investigation. However, the concerned police despite interim direction from this Court carried on the investigation and the petitioner was also arrested as an accused in the