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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SANJAY DHAR, J.
Badri Nath - Appellant
Versus
Union Territory of J&K and Ors. - Respondents
Bail App. No. 139 of 2020, Crl. M. Nos. 1444 and 1445 of 2020
Decided On : 11-12-2020
BAIL - POCSO Act - 8 - 29, 30 - The court dismissed the bail application of the accused, charged under Sections 354-A/452/506 IPC and Section 8 of POCSO Act, based on the presumption of guilt under Section 29 of the POCSO Act, the gravity of the offences, and the accused's position vis-à-vis the victim. The court also highlighted the need to inform the victim/Child Welfare Committee about bail proceedings in POCSO Act cases.
Fact of the Case:
The petitioner sought regular bail in a case involving offences under Sections 354-A/452/506 IPC and Section 8 of POCSO Act. The victim, a minor, alleged that the petitioner molested her, and the police registered the FIR based on her statement before the Child Welfare Committee.
Finding of the Court:
The court found that the presumption of guilt under Section 29 of the POCSO Act applied even at the pre-trial stage, considering the material collected during the investigation. It also noted the heinous nature of the offences, the accused's age and relationship with the victim, and the potential coercion of the victim if the accused was granted bail.
Issues: The key issues included the applicability of the presumption of guilt under Section 29 of the POCSO Act at the pre-trial stage, the gravity of the offences, and the potential impact of bail on the victim's welfare and the course of justice.
Ratio Decidendi: The court held that the presumption of guilt under Section 29 of the POCSO Act applies at the pre-trial stage, and the accused's age, relationship with the victim, and potential coercion of the victim were relevant factors in denying bail. The court also emphasized the need to inform the victim/Child Welfare Committee about bail proceedings in POCSO Act cases.
Final Decision: The court dismissed the bail application, highlighting the heinous nature of the offences, the accused's position vis-à-vis the victim, and the potential coercion of the victim if the accused was granted bail. It also directed the issuance of a Circular to inform the victim/Child Welfare Committee about bail proceedings in POCSO Act cases.
JUDGMENT :
Sanjay Dhar, J.
1. Through the medium of instant petition, the petitioner is seeking regular bail in FIR No. 40/2020 for offences under Sections 354-A/452/506 IPC and under Section 8 of POCSO Act registered with Police Station, Bari Brahamana.
2. The facts leading to filing of this petition are that on 25.02.2020, the police of Police Station Bari Brahmana received an order dated 22.02.2020 from the Child Welfare Committee, Samba wherein it was alleged that on 19.02.2020, the victim girl approached a Member of the Child Welfare Committee, Samba from Child line, Jammu and informed her that she was molested by her neighbourer and requested for immediate redressal of her grievance. On the basis of this, the concerned Member of the said Committee constituted a team to contact the child so as to listen to her grievance/complaint. On 22.02.2020, the mother of the victim girl along with the victim appeared before the Child Welfare Committee and she made a statement before the Committee. As per the story narrated by the victim girl to the aforesaid Committee, on 18.02.2020 at about 9 pm, the petitioner herein/accused, who happens to be the neighbourer of the victim, came to her house and started talking vulgar and irrelevant things to her, while her mother was lying admitted in the hospital and her younger brother was sleeping. The victim further narrated to the aforesaid Committee that the petitioner/accused rubbed his hand on her mouth, pulled her hand, asked her to sit in his lap, touched her private parts and asked her to accompany him to the roof for making love. The victim went on to narrate that she locked herself in a room and from there, she called the son of the petitioner/accused who came over there and she narrated the whole story to him, but she was abused and threatened by the son of the accused. The victim further narrated that since her mother was hospitalised and his father is serving in the Army at Chennai, she got frightened.
3. Upon receiving the order from the aforesaid Committee, the police registered the subject FIR and started investigation of the case. The statement of the victim under Section 164 Cr.P.C. was recorded and after investigation of the case, offences under Sections 354-A/452/506 IPC and 8 of POCSO Act were found established against the petitioner/accused and he was arrested.
4. It appears that on account of outbreak of Covid-19 infection, the petitioner was granted interim bail for a period of one month by the learned trial Court in terms of its order dated 30.03.2020 and the same was extended from time to time up to 09.07.2020. On 08.07.2020, the petitioner moved an application for seeking extension of interim bail, but vide its order dated 10.07.2020, the same was declined by the trial Court and he was directed to surrender before the Jail authorities, whereafter the petitioner is stated to have surrendered and is in custody since then. It further appears that the petitioner after filing of charge sheet before the trial Court on 18.07.2020, again moved an application for grant of bail before the trial Court, but the same was dismissed by the trial Court vide its order dated 29.07.2020.
5. The petitioner has sought bail on the grounds that the learned trial Court was not justified in rejecting his bail application when he was already on interim bail and there was nothing on record before the trial Court to show that he had misused the concession of bail; that the petitioner is not involved in a case which entails severe punishment as the offence for which he has been booked carries a maximum punishment up to 7 years and, as such, he is entitled to grant of bail, particularly because the investigation of the case is complete and the challan has been presented before the trial Court; that the petitioner would not flee from justice and he would abide by all the terms and conditions that may be imposed by this Court in case he is admitted to bail.
6. The respondent has resisted the bail applicati
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