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HC reprimands JM for bail

Excelsior Correspondent
SRINAGAR, Feb 1: The High Court today reprimanded the Judicial Magistrate Kupwara for granting bail to a rapist and ordered explanation from him in this regard as also necessary action against the trial magistrate.
Justice Ali Mohammad Magrey while setting aside the bail order passed by Judicial Magistrate Kupwara in favour of one Zahoor Ahmad Sheikh involved in kidnapping and rapping a minor girl directed the Superintendent of Police Kupwara to arrest the accused.
“Senior Superintendent of Police, Kupwara, is directed to take into custody accused/ respondent no.6”, Justice Magrey directed and sought action taken report from SSP.
Court while taking action against the Trial Court Judge for miscarriage of justice directed Registrar Judicial, Registrar General, High Court to call for explanation from Judicial Magistrate 1st Class, Kupwara.
“Place the order before the Chief Justice for perusal and necessary orders for action from administrative side against the Judicial Magistrate, Kupwara”, Justice Magrey directed.
Court has held that rape is one of most barbaric and heinous crimes not only against the victim of rape but also against the family of victim of rape and society as a whole and observed that the cases of rape, gang rape and digital rape are on increase and perpetrators of this inhuman and brutal crime are worse than even beasts and deserve to be dealt with a heavy hand.
“The entire country is seriously debating this issue and there are proposals coming forth that death penalty should be the answer to deal with the accused involved in such heinous crime. Having said this, none should be allowed to trivialise the gravity of offence by misusing the same as a weapon for vengeance or vendetta”, read the elaborated judgment passed by Justice Magrey.
Appearing counsel for petitioner (father of minor daughter) stated  during his arguments that Trial Magistrate has ignored the statement of prosecutors, recorded by the same Magistrate under Section 164-A CrPC, which showed order impugned has been passed without application of judicial mind as also the said order is bad in law as such caused failure and miscarriage of justice.
Court also added that rape has been held to be even more serious than murder that not only destroys woman physically but also shatters her inner-self by destroying her each living moment emotionally and psychologically and leaves a permanent scar on the life of the victim and it becomes horrendous for victim of rape to lead a dignified and well respected life in the society.
Justice Magrey has expressed his serious concern over the increase in the rape instances and observed that some of the recent rape cases have been so horrifying that the entire nation protested to condemn these barbaric acts and raised a voice to curb said menace by inflicting more severe punishment.
“In view of grave ramifications of crime committed upon women, a special provision has been inserted in Code of Criminal Procedure by Act No. XI of 2014 dated 22nd March 2014”, Justice Magrey said.
While referring the said provision, court said a person, accused of offence punishable under Section 376 RPC (rape), should not be released on bail unless the Public Prosecutor has been given an opportunity of being heard on the application for such release and added that it is also strenuously provided that such accused person should not be released on bail if on the perusal of the case diary or the report, the court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
“The Judicial Magistrate, in the present case, unmindful of the statement recorded by the very Judicial Magistrate, of the prosecutrix under Section 164-A Cr.P.C. and certificate given the same Judicial Magistrate on the said statement that the statement was read over and explained to the witness, who admitted it to be true and correct and that the Judicial Magistrate believed that the statement has been made voluntarily, has granted bail in favour of accused persons, including accused/respondent no.6 herein”, read the judgment.
Court with regard to the instant case said, it related to kidnapping and raping of a minor girl and the court should always remain alive to the nature of sufferings of the victim resulting from the alleged crime because in that lies the larger interest of the public.
“However, the Trial Magistrate, oblivious to the said well settled law, has granted bail in favour of accused persons. The order impugned obviously depicts non-application of mind on part of Trial Magistrate inasmuch as it has caused miscarriage of justice”, Justice Magrey recorded.
It is mentioned here that the Prosecutrix(victim) was put to medical examination and it was found that accused persons have committed commission of offence punishable under Section 376 RPC as well. The statement of prosecutrix was recorded by Judicial Magistrate 1st Class, Kupwara on 10th May 2016, in which she deposed and admitted her kidnapping by respondents (accused) as also commission of rape upon her person and despite the fact Judicial Magistrate 1st Class, Kupwara granted bail to the accused.

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