Successive Bail Plea Maintainable Even Without Change In Circumstances: J&K&L High Court

Emphasising that the High Court, as a superior court, is not fettered by such technical limitations, Justice Sanjay Dhar granted bail to an accused in a rape case after examining the evidence led during trial and the manner in which earlier bail applications had been rejected.

This principle was highlighted in a Bail Application in connection with an FIR for an offence under Section 376 IPC, which is pending trial before the Court of the 2nd Additional Sessions Judge, Srinagar.

Background of the Case:

The prosecution case originated from a written complaint lodged by the grandfather of the prosecutrix, alleging that his granddaughter had been raped and made pregnant by the petitioner. Acting on this complaint, the police registered the FIR and commenced investigation.

During investigation, the prosecutrix was medically examined and it was found that she had conceived. Upon completion of investigation, the offence under Section 376 IPC was found established against the petitioner and a challan was presented before the trial court. By the time the present bail application was considered, besides the prosecutrix, eight other prosecution witnesses had already been examined.

The petitioner's first bail application was dismissed by the trial court followed by dismissal of his second bail application also. It was after these dismissals, and after recording of statements of four more prosecution witnesses, that the petitioner approached the High Court seeking bail.

Before the High Court, the petitioner contended that the evidence recorded during trial did not substantiate the prosecution version. It was further submitted that the petitioner had been in custody for nearly two years, that all material prosecution witnesses had already been examined, and that there was no apprehension of tampering with evidence.

Court's Observations:

After hearing both sides and perusing the trial court record, Justice Sanjay Dhar reiterated the settled principles governing grant or refusal of bail, including the need to consider the prima facie case, gravity of the offence, severity of punishment, possibility of absconding, likelihood of tampering with witnesses, and the overall interest of justice.

On examining the statements of the prosecutrix, her mother and her grandfather, the Court found prima facie merit in the petitioner's contentions. While cautioning that a meticulous analysis of evidence is not warranted at the bail stage, the Court observed that for the limited purpose of deciding the bail application, the sexual intercourse alleged to have been committed by the petitioner upon a major prosecutrix appeared to be consensual in nature.

Significantly, the Court found fault with the manner in which the trial court had rejected the earlier bail applications, noting that the trial court had mechanically rejected the bail pleas solely on the ground that the offence was heinous, without even considering the evidence led by the prosecution for the limited purpose of bail.

.. The learned trial court, while rejecting earlier bail applications of the petitioner, has not considered the evidence led by the prosecution even for the limited purpose of deciding the bail applications and has mechanically rejected the applications on the ground that the petitioner is involved in a heinous offence”, the court remarked.

The Court further noted that the petitioner had remained in custody for about two years and that all material prosecution witnesses had already been examined, leaving little scope for apprehension of tampering with evidence.

Expounding on the scope of its jurisdiction in successive bail matters the Court categorically held,

“.. High Court being a superior court has the jurisdiction to entertain and decide a successive bail application even in a case where there is no change of circumstances from the stage when the earlier bail application of an accused is rejected by the inferior criminal court.”

The Court further made it clear,

“There is no bar to this Court to grant bail to the petitioner merely because on earlier two occasions his bail application has been dismissed by the learned trial court.”

For the foregoing reasons, the High Court allowed the bail application and directed the release of the petitioner on bail.

APPEARANCES:

For Petitioner: Mr. Mir Umar. Advocate.

For Respondent: Mr. Faheem Nisar Shah, GA.

Case Title: Basharat Ahmad Bhat Vs UT Of J&K

Citation: 2025 LiveLaw (JKL)

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