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.

JUDGEMENT

1. The petitioner has sought bail in a case arising out of FIR No. 183/2020 for offences under Sections 212, 343, 363, 376-D and 109 IPC and Sections 3 and 4 of the Protection of Children from Sexual Offence Act, 2012 (for short the POCSO Act) registered with Police Station, R.S. Pura, Jammu.

2. As per the case of the prosecution, the petitioner herein was having an affair with the prosecutrix who was aged less than 18 years at the relevant time. It is alleged that the petitioner/accused used to torture the prosecutrix so as to coerce her into commission of sexual intercourse. On 05.09.2020 when the prosecutrix had gone to the house of her maternal aunt, petitioner-accused called her on telephone. The prosecutrix went out to meet the petitioner but he forcibly made her to board a vehicle. According to the prosecutrix, the petitioner was accompanied by two more persons, namely, Tariq and Sonu. She was taken to Dharmari where she stayed in a house belonging to a relative of Tariq. In the said house, the petitioner tortured the prosecutrix and committed rape upon her for three-four days. The prosecutrix was recovered from the custody of the petitioner by the Police.

3. Learned counsel for the petitioner has submitted that by now charge sheet has already been filed before the court and even charges have been framed. He has submitted that the statement of the prosecutrix during the trial of the case has also been recorded wherein she has resiled from the prosecution story. On this ground, the petitioner has sought concession of bail.

4. On the other hand, learned counsel for the respondent has submitted that the petitioner has committed a heinous crime as such, he does not deserve to be enlarged on bail. It has been submitted that in case petitioner is enlarged on bail, he may threaten the prosecution witnesses and may jump over the bail. The official respondent has also filed the objections to the bail application.

5. I have heard learned counsel for the parties and perused the record.

6. So far as the principles governing for grant or refusal of bail are concerned, the same are elucidated in a large number of judgments rendered by the Supreme Court and by this High Court. These principles may be summarized as under:

(i) The gravity of the offence and the nature of accusation including the frivolity of punishment in a case of conviction.

(ii) The position and status of the accused vis-a-vis the victims and the witnesses.

(iii) The likelihood of accused fleeing from justice.

(iv) The possibility of accused tampering with the evidence or witnesses and obstructing the course of justice.

(v) Possibility of repetition of the offence.

(vi) Prima facie satisfaction of the court in support of the charge including frivolity of the charge.

(vii) Stage of the investigation.

(viii) Larger interest of the public or the state.

7. The guidelines relating to grant of bail have been laid down in Sections 437 and 439 Cr.P.C. While in Section 437 Cr.P.C. certain restrictions and conditions have been laid down for grant of bail by a Court, the power to grant bail under Section 439 Cr.P.C. for the High Court or the Sessions Court is wider. While nature of offence and severity of punishment are important considerations for dealing with the bail plea of an accused, specific role of the accused in the alleged crime is also required to be considered. In a case relating to an offence under the POCSO Act, there is a statutory presumption of guilt operating against an accused in terms of Section 29 of the said Act. So all these factors have to be borne in mind while considering the bail application of the petitioner.

8. Coming to the facts of the instant case, it is correct that the petitioner's involvement in the alleged crime has been found after the investigation of the case and charges against him have also been framed. Thus, there is a statutory presumption of guilt operating against him, but then there is no statutory bar to the grant of bail in a case invo