MOHD. SHABBIR AND ANOTHER Vs. MEHBOOB

JUDGEMENT

(1.) Through the medium of petition, petitioners seek quashment of order dated 11.12.2015 passed by learned Additional District and Sessions Judge, Rajouri in File No.57/Cr. Misc., by virtue of which, respondent has been granted bail in FIR No.145/2014 for commission of offence under Sections 376/363/343/109 RPC.

(2.) The case set up by the petitioner No.1 is that his daughter i.e., petitioner No.2, i.e., Shahida Shabbir a minor, was raped by respondent No.1 repeatedly which led to the registration of FIR No.145/2015 for commission of offence under Sections 376/363/343/109 RPC, at Police Station, Thanamandi, Rajouri, which is now pending trial in the Court of learned Additional District and Sessions Judge, Rajouri. On presentation of the final report in the Court against five accused persons including respondent who is the main culprit, learned trial court framed charges against all the accused and statement of petitioner No.2 favoring challan, was recorded under Section 164-A on 09.12.2014 and also copy of statement of petitioner No.2 recorded by trial court on 18.09.2015. Respondent No.1 was arrested on 05.12.2014 and while he was in judicial custody filed an application for grant of bail on 05.10.2015 which was allowed by the trial court vide order impugned dated 11.12.2015 by ignoring the law on the subject as well as the evidence brought on record on an untenable premise that the offence is not punishable with death or life imprisonment. Therefore, order impugned has been challenged on the following grounds:-

(3.) It is further submitted that subsequently the age has been increased from sixteen to eighteen years. That the offence of rape with a victim, who is below the age of eighteen years, is now punishable with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life and shall be liable to fine. That a minor is incapable of giving consent and where consent is denied burden shifts on the accused in case of a major victim to prove the consent. In the instant case petitioner No.2 is a minor who has been subjected to rape and punishment for rape extends to life imprisonment with fine, hence the exercise of discretion by the trial court on the plea that the offence is punishable with death or life imprisonment is prima facie illegal. On that score alone the impugned order, on the face of it, is illegal and deserves to be set aside and quashed. That the order of grant of bail is motivated by extraneous consideration otherwise such an order could have been passed reflecting total ignorance of law on the subject. That the trial court has even failed to take notice of the amendment brought in Section 497 by virtue of which Section 497-C has been inserted which provides formulation of an opinion by the trial court as regards innocence of the accused for grant of bail. In the instant case the trial court has failed to record any opinion as regards the accusation being untrue prima facie hence the discretion exercised suffers from material irregularity and the resultant order has caused serious miscarriage of justice which deserves to be set right by this Hon'ble Court.