HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

Bail App No. 168/2021

CrlM No. 1096/2021

Reserved on: 15.07.2021

Pronounced on: 28.07.2021

Chain Singh

.....Applicant/Petitioner(s)

Through :- Mr. I. A. Hamal, Advocate

v/s

U. T. of J&K

.....Respondent(s)

Through :- Mr. Suneel Malhotra, GA

Coram:

HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

ORDER

1.

The present bail application has been filed by the petitioner for

grant of bail in challan titled U.T of J&K vs. Chain Singh, arising out of FIR

bearing No. 278/2019 initially registered under 377 IPC, after the bail

application filed by the petitioner was rejected by the Court of learned

Principal Sessions Judge, Kishtwar (hereinafter referred to as the trial court)

vide order dated 27.01.2021.

2.

In the bail application, petitioner has stated that there has been

inordinate and unexplained delay of four months in lodging of the FIR, further

that the investigation has been conducted in an unfair manner because no

preliminary enquiry was carried out by the Investigating Agency and also that

not even a single member of the community, to whom the occurrence is alleged

to have been narrated in the month of August, 2019 has been examined.

Sr. No. 248

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Bail App. No. 168/2021

3.

It is further stated that from the Medical record it is evident that

there is no evidence that the petitioner is at all guilty of committing offence of

sodomy. It is also stated that the trial stands stalled because of the eruption of

corona virus pandemic and there is no likelihood of trial being concluded in an

expeditious manner.

4.

Response stands filed by the respondent, in which it is stated that

on 20.12.2019, the written application was produced by one Sushil Kumar, S/o

Hans Raj R/o Moori, Bunjwaj, Kishtwar before P/S Kishtwar stating therein

that on 31.08.2019, his son had gone to visit a fair at Moori. When he was

coming back and reached one kilometer away from Moori, the petitioner

grabbed the son of the complainant and forcefully took him in the fields

committed unnatural offence/sodomy against him. For about 20 minutes, the

son of the complainant kept on weeping and afterwards narrated the whole

episode to the complainant. The complainant further stated that some members

of the Birdari stopped him by saying that they will look into the matter and in

the process three months have passed but nothing was done. Pursuant to this

complaint, FIR bearing No. 278/2019 under Section 377/IPC was registered at

Police Station Kishtwar. During investigation the statement of the victim was

recorded under Section 164 CrPC and the accused was arrested. Later on,

offence under Section 4 of POCSO Act was found established against the

petitioner. It is further stated in the objections that the challan stands filed

before the Court of Principal Sessions Judge, Kishtwar and the charges stand

framed by the said Court on 04.02.2021. It is further stated that the petitioner is

guilty of heinous offence, as such, he is not entitled to any bail.

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5.

Learned counsel for the petitioner has vehemently argued that

there was delay of three months in lodging FIR and even the statement of the

victim as well as the complainant was recorded after inordinate delay and

further that the medical evidence does not support the commission of any

offence by the petitioner. In support of his submissions reliance is placed on

judgment of Supreme Court in cases AIR 2021 SC 1389 and AIR 2012 SC

830 and judgment High court of J&K, in JKJ2021(1) HC 110.

6.

Per contra, Mr. Suneel Malhotra, learned GA appearing the

respondent submits that the petitioner is guilty of heinous offence and further

after the framing of charges, the statements of the victim as well as

complainant are yet to be recorded.