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 the stage of the trial in reaching its decision to grant bail to the petitioner.

JUDGMENT :

1. The petitioner has sought bail in a case arising out of FIR No. 136/2020 for offences under Section 363 IPC and Sections 4 and 5 of the Protection of Children from Sexual Offence Act, 2012 (for short the POCSO Act) registered with Police Station, Billawar.

2. As per the case of the prosecution, on 27.11.2020, father of the minor victim girl lodged a written report with Police Station, Billawar alleging therein that on 24.11.2020 accused Neeraj Kumar kidnapped his minor daughter, when she had gone to her school. On the basis of this report, the aforesaid FIR came to be registered and investigation was set into motion. During the investigation of the case, the statement of the victim under section 164 Cr.P.C. was recorded and she was medically examined. The victim stated that she has not been kidnapped and she also refused to go with her parents.

3. It appears that the complainant and his minor daughter filed a writ petition before the High Court seeking a direction for constitution of a Special Investigation Team(SIT) and to provide security to the minor victim and her family. In compliance to the direction of the High Court, SIT was constituted and thereafter, the statement of the victim was re-recorded under section 164 Cr.P.C. Her medical examination was also conducted by a board of doctors. After investigation of the case, offences under Sections 363, 376 and 109 IPC and 4/17 of the POCSO Act were found established against accused-Neeraj Kumar, Bishan Dass, father of the accused, Sushama Devi, mother of the accused and Vinod Kumar, maternal uncle of the accused-Neeraj Kumar and Balwinder. Accused Neeraj Kumar was found to be a juvenile and as such, by the orders of the Juvenile Justice Board, he was sent to the observation home. It was found during the investigation of the case that the accused/petitioner was also involved in the kidnapping of the victim girl. Accordingly, the charge sheet against all the accused excepting accused Neeraj Kumar was filed before the learned Principal Sessions Judge, Kathua whereas against accused Neeraj Kumar charge sheet was laid before the Juvenile Justice Board.

4. Learned counsel for the petitioner has submitted that the co-accused in the case have already been enlarged on bail in terms of judgment dated 23.12.2022 passed on the bail applications of the co-accused as such, the petitioner is also entitled to grant of bail. She has further submitted that even the main accused-Neeraj Kumar has been enlarged on bail by the order of Juvenile Justice Board.

5. 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 be jump over the bail. The official respondent has also filed the objections to the bail application.

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

7. 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.

8. 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 conditi