The main legal point established is the distinction between preparation and attempt to commit an offence, as well as the application of relevant sections of the IPC and POCSO Act in determining the nature of the petitioner's actions.

JUDGMENT :

1. The petitioner, who is arrested in FIR No. 457/2020 under Sections 376, 354, 511 IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 ("POCSO Act"), seeks his enlargement on bail on the ground that he is a law abiding citizen of India and has been falsely implicated in the crime, which he ever committed.

2. It is claimed that a neighbours of the petitioner, namely, Rafiq Ahmed Sheikh and his family, who belong to a different sect of Islam, harbour ill will against the petitioner and have, with a view to settle scores, lodged a false and frivolous FIR in Police Station, Budgam. The petitioner was arrested by the police of Police Station, Budgam on 16.12.2020 and ever since he is in judicial custody and has been languishing in Central Jail, Srinagar. It is submitted that the police has completed the investigation in the case and has presented the Final Report (challan) before the Court of Learned Sessions Judge, Budgam ("the trial Court"). The petitioner also seeks his release from custody on the ground that going by and accepting the contents of the FIR, lodged against him, as gospel truth, no offence under Section 376/511 IPC or under Section 8 of POCSO Act is made out. The petitioner, therefore, urges this Court to enlarge him on bail subject to such terms and conditions as this Court may deem fit and that he undertakes to abide by the same in letter and spirit.

3. It is contended that the petitioner had, in the first instance, approached the trial Court, but his bail plea was rejected by the trial Court vide its order dated 16.03.2021. The order of rejection passed by the trial Court is cryptic and does not dwell upon the well-established parameters to be taken into consideration while considering bail plea in non-bailable offences.

4. Heard learned counsel for the parties and perused the record.

5. It may be pertinent to note that this Court vide its order dated 02.04.2021 passed in this application had desired the learned counsel for the petitioner to argue on the maintainability of the instant successive bail application after dismissal of his bail application by the trial Court. Learned counsel for the petitioner argues that this question need not detain this Court, for the issue raised by this Court is now well settled. Successive bail application after the dismissal of bail application by the lower Court is maintainable before the High Court. There is no denying the fact that under Section 439 of the Code of Criminal Procedure, the High Court and the Court of Sessions have concurrent jurisdiction to grant bail and in case a person in custody in connection with the commission of offence of the nature specified in sub-section 3 of Section 437 of Cr.P.C. moves the Court of Sessions for grant of bail and his bail plea is rejected, he shall be entitled to file a fresh bail application before the High Court on the same grounds. While doing so, he may also point out the illegality or infirmity in the order of learned Sessions Judge rejecting his bail plea. The Court hearing the successive bail application is obliged to consider the findings of the Court given while rejecting earlier bail application. However, if successive bail application is moved before the same Court, then it is incumbent upon the applicant to plead and demonstrate change of circumstances.

6. Adverting to the merits of the bail plea of the petitioner, it is seen that on the basis of a written complaint made by the complainant Rafiq Ahmad Dar in the Police Station, Budgam to the effect that his niece, a student, had gone to the house of the petitioner for buying mobile charger and that the petitioner took his niece to the attic of the house, took of her clothes and made an attempt to rape her, a case FIR No.457/2020 for offences under Sections 376, 354, 511 IPC and Section 8 of POCSO Act was registered in the Police Station concerned. Investigation was set in motion.

7. During the course of investigation site plan was prepared,