HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU Bail App No. 163/2024 Shahista Begum and others ….applicant Through :- Mr. Mohd Latief Malik Advocate. V/s UT of Jammu and Kashmir and another Through :- Mr. Eishan Dadeechi G.A. I.O is present in person. CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT(ORAL) 1 This is an application filed under Section 438 of the Code of Criminal Procedure seeking grant of anticipatory bail in favour of the petitioners in connection with FIR No. 56/2024, registered on 06.07.2024 for offences punishable under Sections 376-D and 109 of the Indian Penal Code at Police Station Gool, District Ramban 2 The petitioners have submited that they have been falsely implicated in a baseless and motivated case. Petitioner No.1 is the real sister of the complainant (respondent No.2); petitioner No.2 is her husband; and petitioner No.3 is her brother-in-law. It is stated that respondent No.2 is married to one Abdul Hamid, and has two children, and is currently pregnant. It is alleged that prior to her marriage, respondent No.2 had a child whose paternity is unknown to the petitioners and that the said child was subsequently given away to another person. 2 3 The petitioners have further alleged that respondent No.2 has filed a false and fabricated complaint against them and several family members, including her real brother, maternal uncles, and other relatives, at Police Station Kulgam in July 2024. The said complaint pertains to an incident allegedly having occurred in December 2023. Initially, a zero FIR was registered at Police Station Kulgam, which was subsequently transferred to Police Station Gool, where it was registered as FIR No. 56/2024 for offences under Sections 376-D and 109 IPC. It is contended by the petitioners that they are innocent and that the FIR does not attribute any specific role to them. It is alleged that the FIR has been lodged with the sole intention of falsely implicating them for extraneous and monetary considerations. It is further alleged that had any such incident actually occurred, respondent No.2 would have promptly lodged a report at Police Station Gool instead of approaching the police after an unexplained and inordinate delay of nearly seven months. The petitioners have claimed that they are being summoned to the police station on a daily basis despite their innocence and apprehend arrest in connection with a false and malicious complaint, thereby causing irreparable damage to their personal reputation and social standing. 4 On 24.07.2024, this Court issued notice to the respondents and directed that no illegal or undue harassment be caused to the petitioners. 5 Pursuant thereto, objections have been filed by the respondent- UT. It is stated therein that in FIR No. 56/2024, offences under Sections 376, 452, and 342 IPC are made out against one Abdul Rehman, and under Sections 376 and 341 IPC against one Mohd Rafiq. It is further stated that this Court, in CRM(M) No. 955/2024, has already directed that investigation in the case may proceed but no charge-sheet shall be filed without prior 3 permission of this Court. It is further stated in the objections that the incident in question has caused public outrage, and therefore, the interim protection granted to the petitioners should be vacated. 6 On 06.06.2025, the Investigating Officer was directed to remain present in person along with the case diary. Today, the I.O. is present in Court and a copy of the status report filed in CRM(M) No. 955/2024, arising out of the impugned FIR, has also been produced. 7 As per the status report (supra), the initial offences under Sections 376-D and 109 IPC have been dropped, and the case now pertains to offences punishable under Sections 376, 452, 342, and 341 IPC. The report further states that the petitioners have not been arrested so far, and that the complainant has not cooperated with the investigation, particularly by refusing to undergo a DNA test of the child, despite repeated requests made by the I.O. 8 Heard learned counsel for the parties and perused the material on record. 9 Learned counsel for the petitioners has submitted that the complainant’s refusal to undergo the DNA test seriously undermines the credibility of the allegations. It is further submitted that there is no material on record warranting custodial interrogation of the petitioners. The petitioners have clean antecedents and are willing to cooperate fully with the investigation. 10 Per contra, learned counsel for the UT has opposed the bail application but has admitted that despite repeated requests, the complainant 4 has failed to appear for the DNA test, which has hampered the progress of investigation. 11 Upon consideration of the rival submissions and perusal of the record, it is evident that the complainant has not extended the requisite cooperation in the investigation, particularly by refusing to undergo the DNA test, which is crucial for corroborating the allegations made in the FIR. Such non-cooperation raises serious doubts about the veracity of the allegations and has resulted in a delay in the investigation, which cannot be attributed to the petitioners. 12 In the facts and circumstances of the case, especially keeping in view the conduct of the complainant, and the willingness of the petitioners to cooperate with the investigation, this Court is of the considered opinion that custodial interrogation of the petitioners is not warranted. Accordingly, the application is allowed. It is directed that in the event of arrest in FIR No. 56/2024, registered at Police Station Gool, District Ramban, for offences punishable under Sections 376, 452, 342, and 341 IPC, the petitioners shall be released on bail, subject to the following conditions: (i) The petitioners shall furnish personal bonds along with surety bonds in the amount of Rs.50,000/- each, to the satisfaction of the Investigating Officer. (ii) They shall cooperate with the investigation and appear before the I.O. whenever required. (iii) They shall not leave the Union Territory of Jammu & Kashmir without prior permission of the I.O. (iv) They shall not tamper with the prosecution evidence or try to influence any witness. 5 (v) If the petitioners violate any of these conditions, the respondent-UT may approach this Court for cancellation of their bail. The application is disposed of accordingly. (MOKSHA KHAJURIA KAZMI) JUDGE Jammu 07.07.2025 Sanjeev Whether approved for judgment: Yes/No