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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Ryeaz Ahmad Ganie – Petitioner
Versus
Union Territory of J&K – Respondent
Bail Application No. 84 of 2022
Decided On : 29-08-2022
BAIL - Criminal Law - Cr.P.C. - IPC - POCSO Act - Section 363, 376, 109 of IPC and Section 4/17 POCSO Act - [Section 29, 30 of POCSO Act] - The court discussed the principles governing the grant or refusal of bail and the provisions contained in Section 29 and 30 of the POCSO Act. It highlighted the presumption as to certain offences and presumption of culpable mental state against an accused prosecuted under the said Act. The court emphasized that each case has to be decided on its own facts and circumstances by applying the well-recognized principles for grant of bail as set out by the judicial precedents from time to time.
Fact of the Case:
The petitioner sought bail in a case involving offences under section 363, 376, 109 of IPC and Section 4/17 POCSO Act. The prosecutrix was allegedly kidnapped and sexually assaulted by the co-accused. The petitioner was charged for aiding the main accused in kidnapping the victim.
Finding of the Court:
The court found that the petitioner's role was confined to aiding the main accused in kidnapping the victim and not committing sexual assault. It noted contradictions in the statements of prosecution witnesses and the medical opinion regarding the alleged sexual assault. The court also considered the stage of the trial and the absence of evidence showing the petitioner as a habitual offender or likely to repeat similar offences.
Issues: The issues involved the nature and gravity of the accusation, the exact role of the accused, and the likelihood of the accused tampering with the evidence and/or witnesses. The court also considered the provisions of the POCSO Act and the stage of the investigation.
Ratio Decidendi: The court's decision was influenced by the petitioner's limited role, contradictions in the prosecution's case, and the stage of the trial. It emphasized the need to apply the well-recognized principles for grant of bail and considered the presumption as to certain offences and presumption of culpable mental state against an accused prosecuted under the POCSO Act.
Final Decision: The application for bail was allowed, and the petitioner was admitted to bail with specific conditions.
JUDGMENT :
SANJAY DHAR, J.
1. The petitioner has invoked the jurisdiction of this Court under section 439 of the Cr.P.C. seeking bail in a case arising out of FIR No. 60/2020 for offences under section 363, 376, 109 of IPC and Section 4/17 POCSO Act registered with Police Station, Kangan.
2. As per the prosecution story, on 12.08.2020, father of the prosecutrix lodged a written report with the Police, alleging therein that on the said date at about 8:30 P.M., co-accused Ghulam Hussain Naikoo, who was travelling on a motorcycle, called his daughter and thereafter forcibly made her to board his motorcycle whereafter she was kidnapped by the aforenamed accused. In the report it was submitted that the age of the prosecutrix is 13 years and that she has been taken away by the aforenamed accused to some undisclosed location.
3. On the basis of aforesaid report, the FIR came to be registered and investigation of the case was set into motion. During the investigation of the case, the prosecutrix was recovered from the custody of accused Ghulam Hussain Naikoo from a vacant house located at Village Hanjiwera. The aforenamed accused was arrested and the statement of the prosecutrix under section 164 of the Cr.P.C. was recorded. She was also subjected to medical examination.
4. In her statement recorded under section 164 of the Cr.P.C. the prosecutrix deposed that on 12.08.2020 at about 8:30 P.M. two persons, who were travelling on a motorcycle, came to her village and one of them, accused Ghulam Hussain Naikoo called her. She has further stated that accused Ghulam Hussain Naikoo was known to her as he had visited her house on one or two occasions. The two persons, namely, Ghulam Hussain Naikoo and Reyaz Ahmad Ganie, the petitioner herein, forcibly made her to board the motorcycle and she was taken to Budgam in the darkness of the night. She was made to stay in the house belonging to the sister of petitioner. During the night, she was kept in a separate room by accused Ghulam Hussain Naikoo who committed rape upon her. In the morning, accused Ghulam Hussain Naikoo and petitioner Reyaz Ahmad took her to Hanjiwera whereafter she was kept in a vacant house by accused Ghulam Hussain Naikoo. She has further stated that at about 11:00 A.M. police raided that house and she was recovered whereas accused Ghulam Hussain was taken into custody by the police.
5. After investigation of the case, offences under section 363, 376 of IPC and Section 4 of POCSO Act were found established against accused Ghulam Hussain Naikoo whereas offences under section 366, 109 IPC and Section 4/17 of POCSO Act were found established against petitioner Reyaz Ahmad Ganie. Initially, the petitioner herein could not be arrested as he had absconded and the challan was presented before the trial court in his absence. During the trial of the case, the petitioner herein was arrested and brought before the trial court on 05.10.2021, whereafter charges for offences under section 363 read with Section 109 of IPC and Section 17 of POCSO Act were framed against him on 06.11.2021. By that time, a number of prosecution witnesses including the prosecutrix had been examined by the prosecution. The petitioner through his counsel made a statement before the trial court on 06.11.2021 that he would not be cross-examining those prosecution witnesses who already been examined in the case and that he would cross-examine only those witnesses who are yet to be examined in the case.
6. It appears that the petitioner had approached the trial court for grant of bail but his application was dismissed by the trial court in terms of order dated 28.12.2021.
7. It has been contended by the petitioner that he is not involved in the alleged crime and that he has been falsely implicated in the case. It has been further contended that trial in the case is almost complete and that the petitioner cannot be denied the concession of bail as a measure of punishment. Lastly, the petitioner has submitted that in case he
The main legal point established in the judgment is the need to consider the specific circumstances of each case and apply the well-recognized principles for grant of bail, particularly in cases invo....
The presumption of guilt under the POCSO Act does not negate the possibility of bail; each case must be assessed individually based on its specific circumstances.
The presumption of guilt under the POCSO Act is rebuttable, and if the accused can demonstrate a prima facie case of innocence, bail may be granted despite the serious nature of the charges.
The presumption of guilt under Section 29 of the POCSO Act can be rebutted by the accused, and the absence of foundational facts to support the presumption can lead to the granting of bail.
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.
The statutory presumption of guilt under the POCSO Act can be rebutted during trial, and bail can be granted based on the specific facts and circumstances of each case.
The presumption of guilt under Section 29 of the POCSO Act can be rebutted by the accused if foundational facts are not established, and the court must consider the evidence presented when deciding o....
The court considered the statutory presumption of guilt operating against the accused in a case relating to an offence under the POCSO Act, the specific role of the accused in the alleged crime, and ....
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