Granting Bail In Rape Cases At Very Inception Of Trial Has 'Chilling Effect' On Safety Of Women: J&K&L High Court

Setting aside a bail order passed by a trial court in a rape case, the Court observed that the trial court had relied upon irrelevant considerations and had failed to account for the seriousness of the allegations against the accused.

The Court was hearing a petition filed by the Union Territory of J&K challenging an order of the Additional Sessions Judge, Bandipora, whereby an accused facing trial in FIR registered under Sections 341, 376 and 506 IPC at Police Station Sumbal had been enlarged on bail.

The challenge was laid on the ground that the trial court had undertaken an impermissible evaluation of evidence and had granted bail despite the fact that only two out of twelve prosecution witnesses had been examined.

A Bench of Justice Sanjay Dhar observed,

“... The severity of the offence becomes all the more grave because offence for which the accused is facing trial is an offence against women and granting bail in such cases at the very inception of the trial has a chilling effect on safety of women. The learned trial court, while granting bail to the respondent, has not considered the societal impact at all.”

According to the prosecution, a written report was lodged in 2022 alleging that the prosecutrix was carrying cow dung to her farmland when the accused followed her, tore her clothes and forcibly committed sexual intercourse upon her. It was further alleged that women working in nearby fields intervened and rescued the prosecutrix from the accused.

During investigation, the prosecutrix was medically examined and her trouser was seized and sent for forensic examination. No spermatozoa was detected on the seized clothing. The investigating agency also conducted an age determination test and found the prosecutrix to be a major. Her statement under Section 164 CrPC was recorded before a Magistrate, following which the accused was arrested.

Upon completion of investigation, offences under Sections 341, 376 and 506 IPC were found established against the accused and the challan was presented before the trial court. During trial, the prosecution examined the prosecutrix and her father, while the remaining witnesses, including eye-witnesses cited in the charge-sheet, were yet to be examined.

By an order in 2024, the trial court granted bail to the accused. The court relied upon factors including non-detection of spermatozoa on the prosecutrix's clothing, non-seizure of a lighter and muffler allegedly used during commission of the offence, discrepancies relating to the place of occurrence, delay in lodging the report and the period of incarceration already undergone by the accused. Aggrieved by the order, the Union Territory approached the High Court seeking cancellation of bail.

Court's Observation:

The Court began by examining the principles governing cancellation of bail and referred to the Supreme Court decisions in Imran v. Mohammad Bhava (2022) 13 SCC 70 and Phireram v. State of Uttar Pradesh (2022) 15 SCC 201. It observed that while cancellation of bail ordinarily requires cogent and overwhelming circumstances, a superior court can also interfere where the court granting bail has ignored relevant material, considered irrelevant factors or passed an order that is illegal or perverse.

Applying these principles to the facts of the case, the Court found that the trial court had doubted the credibility of the prosecutrix on grounds that were wholly irrelevant to the question of bail. The Court observed,

“... If the statement of the prosecutrix otherwise is reliable and she has withstood the rigors of cross examination, merely because lighter and the muffler used by the accused in the commission of crime have not been seized would not discredit the statement of the prosecutrix.”

The Court further held that absence of spermatozoa on the seized clothing could not, by itself, render the testimony of the prosecutrix unreliable if her statement was otherwise trustworthy. It emphasised that at the stage of considering a bail application, a court is not expected to undertake a meticulous evaluation of evidence or determine whether the testimony of a witness ultimately inspires confidence.

The Bench noted that minor contradictions regarding the place of occurrence or the exact date of occurrence, particularly when the prosecutrix was an illiterate woman, could not form the basis for rejecting her testimony at the bail stage. It held that such matters were issues for trial and not grounds for enlarging an accused on bail.

The Court further observed that there was no previous enmity between the parties that could provide a motive for false implication. It also noted that eye-witnesses who had allegedly rescued the prosecutrix from the accused were yet to be examined before the trial court. In this context, the Court held,

“.... Therefore, at this stage it was not open to the learned trial court to record a prima facie opinion that the respondent is not involved in the alleged crime.”

Rejecting the trial court's reliance on the period of incarceration undergone by the accused, the Court observed that charges had been framed in April 2023 and within about one year thereafter the prosecution had already examined two material witnesses. It held that a mere delay of a few months in a trial involving a serious offence such as rape could not automatically be treated as infringement of the accused's right to speedy trial.

The Court ultimately concluded that the trial court had ignored the gravity of the allegations and the societal consequences of granting bail in offences against women. It found that the order was based upon irrelevant material and reflected an impermissible scrutiny of evidence at a preliminary stage of the proceedings.

The Court thus held that the impugned order granting bail was illegal and perverse as it was founded upon irrelevant considerations and failed to take into account the gravity of the offence and its societal impact. It concluded that the case warranted interference in exercise of its powers to cancel bail.

Accordingly, the petition was allowed and the order passed by the Additional Sessions Judge, Bandipora, was set aside. The bail granted to the accused was cancelled and he was directed to surrender before the trial court within one month, whereupon he would be remanded to custody.

The Court, however, clarified that it would be open to the accused to seek bail afresh after the statements of the remaining eye-witnesses had been recorded.

Case Title: Union Territory of J&K Through Police Station Sumbal v. Parvaiz Ahmed Ganie

Citation: 2026 LiveLaw (JKL)

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