SUBASH SINGH Vs. STATE OF J & K

JUDGEMENT

(1.) By this common judgment, petition under Sec. 561-A Cr.P.C and bail application filed by the petitioner are being disposed of as both the matters have arisen out of an order dtd. 17/12/2018, passed by learned Sessions Judge, Samba by virtue of which he has cancelled the interim bail granted in favour of the petitioner on 17/10/2017.

(2.) In this petition, petitioner states that he is innocent and law abiding citizen and has not committed any offence; that Police of Police Station, Vijaypur has registered a false and fabricated case against the petitioner under Sec. 376/109 RPC under FIR No.01/2016 and offence under Sec. 376 RPC was registered against the co- accused Amit Singh. The petitioner is facing trial before learned Sessions Judge Samba. The allegations against the accused are that on 31/12/2012 the Prosecutrix Vishali Devi along with her fiancé Sh. Ashwani Kumar had gone to Ashramat at Ranjari at about 7:30 PM, the accused person took away the victim and her fiancé, and the co-accused Amit Singh committed rape upon the Prosecutrix, upon which the Amit Singh was charge sheeted under Sec. 376 RPC and the allegations against the petitioner was that rape has been committed at the instigation of the petitioner. The statement of prosecutrix was recorded under Sec. 164-A Cr.P.C during investigation, wherein she has stated that petitioner has not committed rape upon her; that during the course of trial the statement of Prosecutrix was also recorded wherein she changed her version and stated that it was petitioner, who committed rape upon her and Amit Singh, other co-accused, has not committed rape upon her; that during the pendency of the proceedings on 17/10/2017, petitioner was granted interim bail by the court below, but on 17/12/2018 court below has cancelled the bail on the ground that petitioner is being involved in offence under sec. 376 RPC and provision of Sec. 497 Cr.P.C does not allow the petitioner to be enlarged on bail, so his bail was cancelled and he was directed to surrender in Sub Jail, Hiranagar within one week. The petitioner has challenged the impugned order on the ground that once bail is granted, it cannot be cancelled; that trial court has virtually reviewed its earlier order for grant of bail; that victim has contradicted her statement during trial; that trial court has not given reasons for setting aside earlier order for grant of bail.

(3.) In this bail application, similar grounds have been taken.