IMPORTANT POINT
The court established that the denial of bail should not serve as a pre-trial punishment and emphasized the importance of the accused's right to liberty and a speedy trial.

JUDGMENT :

MOHAN LAL, J.

1. Petitioner has sought regular bail in terms of Section 436A/439 of the Code of Criminal Procedure (hereinafter referred as the 'code') in case FIR No. 40/2020 registered with Police Station Bari Brahmna District Samba for infraction of provisions contrary to the offences punishable under sections 354A/452/506 IPC r/w Section 8 of POCSO Act. It is averred, that petitioner has been implicated in false and frivolous case although he has not committed any offence nor is involved in the commission of any such offence; that he is a peace loving and law abiding citizen of India and permanent resident of UT of J&K hence entitled to the constitutional, fundamental, legal and statutory rights available to him under the Constitution and Criminal Procedure Code; that the petitioner is a under trial prisoner and is behind the bar for the last more than two (2) years without any fault on his part; that after the production of challan in the aforesaid FIR before the Court of learned Principal Sessions Judge Samba on 18.07.2020 the prosecution has produced all the material witnesses thereby leaving no scope of tampering the witnesses; that the petitioner had earlier moved an application for regular bail before the Court of learned Sessions Judge Samba who vide order dated 02.07.2022 rejected the bail application inter-alia on the grounds that the witnesses are yet to be examined. It is moreso averred, that against the said rejection order of the bail, petitioner earlier approached this Court seeking regular bail bearing B.A. No. 139/2020 and this Court vide order dated 11.12.2020 also rejected the bail application of the petitioner for the reasons that the victim is yet to be examined by the trial court, now all the material witnesses including the statement of victim has been recorded by the trial court, petitioner being an old age person is suffering from various ailments and has served more than 50% of the maximum punishment prescribed for alleged offence against him, the trial pending before the trial Court is at the stage of recording of the statements of accused u/s 313 Cr.P.C. and defence witnesses therefore it cannot be expected that petitioner would tamper the evidence, petitioner is ready to furnish personal bond and surety bond to the satisfaction of this Court and undertakes to abide by all the terms and conditions imposed by this court.

2. Respondent/UT of J&K has opposed the bail on the grounds, that accused has committed heinous offence against society and any concession of bail to him would not be in the interest of the society at large. It is contended, that on 22.02.2020 mother of the 12 years age minor girl child alongwith the child appeared before the Child Welfare Committee, as per the statement of the minor girl child, she was staying alongwith her mother and younger brother in her maternal grandmother's house since long her father is in BSF and at present posted in Chennai, the minor girl child is studying in 7th standard in Army Public School Kaluchak, that “on 18.02.2020 at about 9 p.m. our neighbor uncle Badri Nath came to their house and started talking vulgar and irrelevant things with her, her mother was in hospital for her treatment and her younger brother was sleeping, then suddenly uncle Badri Nath rubbed his hands on her mouth and afterwards she started feeling unconsciousness, in that state of semi consciousness the uncle pulled her hand and asked her to sit in his lap and started touching her private parts and tried to pull her towards the roof and told her that let's love and he will come daily to her residence to make love with her, till the time she regained consciousness sensing something very wrong/foul play, she asked uncle to please go to roof and she will come afterwards, then she immediately locked herself in a room and from there she called the son of Badri Nath to help her narrating him the whole incident, after few minutes the son of Badri Nath came alongwith his family m