The right of the accused to rebut the presumption of guilt under the POCSO Act and the importance of analyzing foundational facts to trigger the presumption.

JUDGEMENT/ORDER :

1. The petitioner has filed the present petition under Section 439 of the Cr.P.C. seeking bail in FIR No. 78/2021 for offences under Section 363, 376 IPC and Section 4 of POCSO Act registered with Police Station, Nigeen Srinagar.

2. It is contended in the petition, that the prosecutrix neither in her statement recorded under Section 164 CrPC nor in her statement recorded during the trial of the case, has implicated the petitioner. It is also averred that the petitioner had approached the learned Special Court for grant of bail but his bail application was rejected by the said Court in terms of order dated 15.12.2021, without appreciating the law in its correct perspective. It is further contended that the petitioner has been falsely implicated in the case and that in case he is enlarged on bail he will abide by all the conditions that may be imposed by this Court upon him.

3. The bail application has been resisted by the respondent by filing reply thereto. In its reply, the respondent has submitted that, on 28.06.2021, Police Station Nigeen received a written complaint from the father of the prosecutrix alleging therein that his daughter has been kidnapped by the petitioner herein from his house at Meerakshah. On the basis of this report, a case for offence under Section 363 IPC was registered and investigation was set into motion. It is averred that during the investigation of the case, the statements of the witnesses were recorded and the prosecutrix was recovered from the possession of the petitioner. She was medically examined which confirmed that the prosecutrix has been subjected to sexual assault. Thus, offences under Section 376 IPC and Section 4 of POCSO Act were added to the case. It is further averred that the statements of the prosecutrix and her mother were recorded under Section 164 Cr.P.C. and the challan was filed against the petitioner for commission of offences under Section 376 IPC and Section 4 of POCSO Act before the Special Court. It has been contended that the petitioner has committed a heinous offence which is against the society, as such, he does not deserve concession of bail.

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

5. Before proceeding to analyze the rival submissions, it is necessary to restate the settled legal position about the matters to be considered for deciding the application for bail. These are as under:

(i) Whether there is any prima facie or reasonable ground to believe that the accused has committed offence;

(ii) Nature and gravity of the charge;

(iii) Severity of punishment in the event of conviction;

(iv) Danger of the accused absconding or fleeing after release on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being tampered with and

(viii) danger of justice being thwarted by grant of bail.

6. When it comes to offences punishable under a special enactment, such as, POCSO Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment. Section 31 of the said Act makes the provisions of the Code of Criminal Procedure applicable to the proceedings before a Special Court and it provides that the provisions of the aforesaid Code including the provisions as to bail and bonds shall apply to the proceedings before a Special Court. It further provides that the Special Court shall be deemed to be a Court of Sessions. Thus, it is clear that the provisions of CrPC including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act. The present application is, therefore, required to be dealt with by this Court in accordance with the provisions contained in Section 439 Cr.P.C. The other provisions of the POCSO Act, which are also required to be kept in mind, are Sections 29 and 30, which rea