HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Coram:

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

O R D E R

27.03.2023

1. Petitioner has invoked the jurisdiction of this Court in terms of Section 439 of

the Code of Criminal Procedure (hereinafter referred to as the, “Code”) for

securing bail to him in FIR No. 640/2020 registered with Police Station

Udhampur for commission of offences under Sections 366, 109 & 376 RPC. It

is averred, that petitioner is a citizen of India and permanent resident of UT of

Jammu and Kashmir and is entitled to the enjoyment of all the fundamental

rights envisaged under part-III of the Constitution of India as well as the other

legal and statutory rights framed there under; that the learned Additional

Sessions Judge Udhampur has rejected the bail of the petitioner vide its order

dated 04.01.2023; that the petitioner and the complainant/prosecutrix being

major were having love affair with each other, which prompted them to marry

each other out of their free will and without any force and coercion, the

petitioner and the complainant/prosecutrix performed Nikah Nama with each

other on 01.12.2020 in accordance with the rights and rituals of Muslim law and

both of them declared themselves as legally wedded husband and wife,

whereafter they entered into marital relation with each other out of their own free

will and consent. It is further averred, that in pursuance to the said marriage, the

petitioner and the prosecutrix executed marriage agreement and affidavit dated

02.12.2020 duly attested/registered by the public notary, petitioner and

prosecutrix/complainant started living as husband and wife in Village Jindrah

Jorgah Tehsil Dansal District Jammu, but on 04.12.2020 within few days, the

father and the relatives of the complainant/prosecutrix took away her forcibly

Bail App No. 30/2023

Reserved on : 15.03.2023

Pronounced on: 27 .03.2023

C

qp

Arshad Ahmed age 24 years S/o Mohd. Mansha,

R/o Villalge Korhgah (Jindra) Udhampur

(presently lodged in District Jail, Udhampur).

….Petitioner(s)

Through :- Mr. Rajnesh Singh Parihar, Advocate

V/s

Union Territory of Jammu & Kashmir through

SHO Police Station, Udhampur

….Respondent(s)

Through :- Mr. Sumeet Bhatia, GA.

Sr. No.105

2 Bail App No. 30/2023

without the consent of the petitioner, whereby, petitioner was constrained to file

an application under Section 97 of the Code before the Court for issuance of

search warrants for recovery of his wife, who was produced before the Court at

Jammu, the father-in-law and other relatives instigated the wife of the petitioner

to lodge a false and frivolous FIR as the petitioner had made them party in the

said application under Section 97 of the Code before the Court of learned 2^nd

Additional Munsiff Jammu. It is averred, that after registration of the FIR against

the petitioner, which was initially registered under Sections 366 and 109 of the

IPC by the complainant/prosecutrix, the petitioner was arrested on 22.12.2020

and was granted bail by the Court on 28.12.2020, whereafter, on 01.01.2021,

respondent got the statement of the complainant/prosecutrix recorded under

Section 164 of the Code before the Court of learned Additional Special Mobile

Magistrate Udhampur, wherein, respondent registered the offence of rape under

Section 376 of the IPC against the petitioner, on 05.01.2021 respondent got

medical examination of the prosecutrix conducted, however, on 16.04.2021

petitioner was again arrested by the police of police post Roun Udhampur in the

aforesaid FIR in view of the subsequent offence added under Section 376 of the

IPC against him, on which date petitioner was already on bail. It is moreso

averred, that on the re-arrest