JUDGMENT :

Sanjay Dhar, J.-Petitioner has filed the instant petition under Section 439 Cr. P. C seeking bail in a case emanating from FIR No.16/2021 for offences under Section 376, 506 IPC and Section 4 of POCSO Act registered with Police Station, Qalamabad.

2. It is contended in the application that petitioner (accused No.2 in the challan) is facing trial for offences under Section 376, 506 IPC and Section 4 of POCSO Act before the Court of Principal Sessions Judge, Kupwara. According to the petitioner, statements of the prosecutrix, her mother and her sister, who happen to be the material witnesses, have been recorded and as per the evidence led by the prosecution, no case has been established against the petitioner. It is averred that the petitioner moved an application for bail before the Special Court i.e. the Court Principal Sessions Judge, Kupwara, but the same was dismissed without appreciation of material on record. It is further contended that the petitioner is in custody for the last more than six months without there being any material against him. The petitioner has undertaken to abide by all conditions that may be imposed by this Court in case he is admitted to bail.

3. The application has been resisted by the respondent by filing a reply thereto. In its reply, respondent has contended that the petitioner is involved in a very heinous crime and, as such, he is not entitled to the concession of bail. According to the respondent, there are other material witnesses who are yet to be examined and in view of the provisions of the POCSO Act, presumption of guilt operates against the petitioner unless contrary is proved.

4. I have heard learned counsel for the parties and perused the material on record including the record of the trial court.

5. The facts emerging from the charge sheet that has been laid against petitioner and co-accused before the trial court reveal that on 19.04.2021, father of the prosecutrix lodged a written report before the Police informing that his minor unmarried daughter (the prosecutrix) complained of severe pain in her abdomen and when she was taken to the hospital at Handwara, the doctor told him that the prosecutrix is pregnant. The prosecutrix was referred to LD hospital, Srinagar, for treatment where she disclosed to her father that accused Shahid Ahmad Teli has raped her. On the basis of this report police registered FIR No.16/2021 and started investigation of the case. During investigation of the case, the prosecutrix gave birth to a dead baby. The statements of witnesses under Section 161 Cr. P. C as also the statement of prosecutrix under Section 164 Cr. P. C were recorded. The date of birth of prosecutrix is stated to be 03.03.2007 and, thus, she was found to be minor at the relevant time. In her statement recorded under Section 164 Cr. P. C, the prosecutrix implicated the petitioner as well as co-accused Shahid Ahmad Teli in the alleged crime. Thus offences under Section 376, 506 IPC and Section 4 of POCSO Act were found established against the accused including the petitioner herein.

6. The trial court record shows that initially the challan was presented before the Court of Additional Sessions Judge, Kupwara, but later on, upon realising that the case is triable by a Special Court, the challan was transferred to the Court of Principal Sessions Judge, Kupwara, which is vested with the powers of a Special Judge under POCSO Act.

7. On 15.10.2021, charges for offences under Sections 376, 506 IPC and 4 of POCSO Act were framed against the petitioner and the co-accused. The statement of the prosecutrix has been recorded by the learned Special Court on 28.01.2022. It is pertinent to mention here that while the challan was pending before the Court of Additional Sessions Judge, Kupwara, statement of the prosecutrix and certain other witnesses were recorded but since the Court did not have the jurisdiction to try the case, the charges were again framed against the accused by the Special Cou