While Considering Bail Plea Presumption Of Correctness Must Be Attached To Witness' Statement Recorded By Judicial Magistrate: JKL High Court

The Jammu and Kashmir and Ladakh High Court has observed that while considering a bail application, the Court has to attach a presumption of correctness to the statement of a witness recorded during the investigation of the case, particularly when the said statement has been recorded by a Judicial Magistrate.

The Bench of Justice Sanjay Dhar observed thus as it denied anticipatory bail to a rape accused as it further noted that he had been avoiding his arrest, dodging the investigating agency and did not make himself available before the investigating agency for the probe.

The case in brief

Essentially, the Court was hearing the anticipatory bail plea of one Shahid Ahmad Sheikh who moved to the HC seeking bail in anticipation of arrest for offences under Section 366, 376, and 109 IPC.

As per the FIR in the case, that came to be registered on the basis of a complaint made by the father of the prosecutrix, it has been alleged that the 22-year-old victim was kidnapped by the petitioner on Jan 26, 2021.

During the investigation of the case, the prosecutrix was recovered on 18.02.2021 from the custody of the accused/petitioner and her statement under Section 164 of Cr. P. C came to be recorded by Judicial Magistrate, 1 st Class, Beerwah.

In her statement, the prosecutrix narrated that when she had gone out of her house to fetch water from a tube well, the petitioner came from behind, tied a cloth on her mouth and forcibly made her to board a vehicle whereafter she was taken to an unknown place and kept over there from 10/15 days, wherein he committed rape upon her.

On the other hand, the petitioner argued that the prosecutrix had entered into a wedlock with the petitioner out of her own will and volition and, as such, the allegations made in the FIR are absolutely false. The petitioner also placed on record a copy of the marriage agreement and a copy of the Nikah Nama to substantiate these contentions.

Court's observations 

At the outset, the Court noted that the prosecutrix, in her statement recorded under Section 164 of Cr. P. C on two occasions, clearly implicated the petitioner by stating that she was kidnapped by him whereafter she was taken to some unknown place and subjected to forcible sexual assault.

Regarding the claim of the petitioner that the victim/prosecutrix had married him, the Court noted that the prosecutrix had not admitted her marriage with the petitioner in any of her statements., therefore, the court said that it cannot be stated that the prosecution launched against the petitioner is frivolous. 

In this regard, the Court stressed that while considering a bail application, the Court has to attach presumption of correctness to the statement of a witness recorded during the investigation of the case, particularly when the said statement has been recorded by a Judicial Magistrate.

Lastly, noting that the petitioner is dodging the investigating agency and had not made himself available before the investigating agency, if he is enlarged on anticipatory bail, there is every likelihood that he may flee from justice, the Court rejected his anticipatory bail plea. 

Case title: SHAHID AHMAD SHEIKH v. UNION TERRITORY OF J&K

Citation: 2022 LiveLaw (JKL) 15

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