Srinagar: The High Court of Jammu and Kashmir and Ladakh has quashed a trial court order granting bail to an accused in a rape case, holding that the decision was passed “without due application of mind” and failed to consider material evidence on record.
The order was passed by Justice Sanjay Parihar while allowing a petition filed by the complainant challenging the bail granted by the Additional Sessions Judge, Fast Track Court Budgam in FIR No. 272/2023 under Sections 376 and 506 IPC.
Appearing for the petitioner, Ayshia Zaheer (Zehgeer), Advocate, as per Alfaaz – The Words, argued that the trial court failed to appreciate the gravity of the offence and the strong prima facie evidence on record. Counsel for the respondent, Shariq Riyaz Jan, Advocate, along with Bikram Deep Singh, Deputy Advocate General for the Union Territory, opposed the plea.
As per the court record, the accused had initially been granted interim bail on December 16, 2023, which was later made absolute by the trial court on August 3, 2024.
The High Court observed that the trial court failed to consider the seriousness of allegations, including inducement on the false promise of marriage, repeated sexual exploitation, and blackmail through secretly recorded intimate videos. It noted that the victim’s statement under Section 164 CrPC, supported by medical evidence and an independent witness, attracted statutory presumption under Section 114 A of the Evidence Act, but was not duly examined.
The prosecution case states that the accused, a neighbour of the victim, allegedly misrepresented himself as a well settled individual and proposed marriage, thereby gaining her trust and entering into a relationship. It is further alleged that he recorded intimate acts without consent and later used the material to blackmail her, demanding Rs 10 lakh.
The court further noted that forensic examination of seized electronic devices, including a mobile phone, laptop and pen drive, revealed multiple recorded instances involving other women. Statements of additional victims were also recorded under Sections 161 and 164 CrPC, indicating a pattern of similar conduct.Rejecting the defence plea of a consensual relationship, the court held that consent obtained under misconception of fact, particularly on a false promise of marriage, cannot be treated as valid at this stage and remains a matter for trial.
The High Court also observed that the trial court passed a cryptic order without assessing relevant factors such as the nature of offence, likelihood of misuse of liberty, and impact on the administration of justice, as laid down in settled principles governing bail.
It further held that the grant of bail at a stage when charges were yet to be framed, despite existence of prima facie material, amounted to misapplication of law. The court said that even though the trial has commenced, an order granting bail that is perverse or arbitrary cannot be sustained.
Accordingly, the High Court set aside the bail order, directed the accused to surrender before the trial court forthwith, and ordered that coercive steps be taken in case of non-compliance.
The court held that the observations are limited to the bail proceedings and will not affect the merits of the trial. It also granted liberty to the accused to seek fresh bail after examination of material witnesses, to be considered in accordance with law.
