IMPORTANT POINT
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.

JUDGMENT :

Sanjay Dhar, J.

1. The petitioner has invoked jurisdiction of this Court under section 439 of the Cr.P.C. seeking bail in a case arising out of FIR No. 210/2020 for offences under section 363, 109 IPC and Section 16/17 of POCSO Act registered with Police Station, Kupwara.

2. As per the prosecution case, during Investigation of FIR No. 202/2020 for offence under section 318 of IPC, the victim, a minor girl, was questioned and during her questioning, she disclosed that one Shabir Ahmad War with the help of her mother, the petitioner herein, has committed rape upon her on a number of occasions, as a result of which she became pregnant. Accordingly, the police Registered FIR No. 210/2020 for offences under section 376, 109 of IPC and started investigation of the case. During the course of investigation, the statement of the victim was recorded under section 164 of the Cr.P.C. whereafter offences under section 376, 109 of IPC and Section 17 of POCSO Act were found established against the accused Shabir Ahmad War, Imtiyaz Ahmad Lone, Waseem Ahmad Lone, Shabir Ahmad Chopan and the petitioner herein. Accordingly, the challan was laid before the trial court. During the trial of the case, two accused persons, namely, Waseem Ahmad and Shabir Ahmad Chopan have been admitted to bail whereas main accused, Shabir Ahmad War, and the petitioner herein are still under custody.

3. It appears that the petitioner had approached the trial court for grant of bail but her application was dismissed by the said court in terms of its order dated 26.12.2022.

4. It has been contended by the petitioner that the victim, who happens to be her daughter, was sexually assaulted by main accused Shabir Ahmad War, as a result of which she became pregnant. It has been submitted that during the investigation of the case, the victim was instigated to implicate the petitioner, as a result of which she made a statement under section 164 of Cr.P.C. implicating the petitioner. It has been submitted that during the course of trial of the case, three prosecution witnesses including the victim have been examined and on the basis of the statements of these witnesses, it has come to fore that the petitioner has been falsely implicated in the case. On these grounds, the petitioner has sought bail.

5. The bail application has been resisted by the respondent by filing a reply thereto. In its reply, the respondent, besides narrating the facts of the case, has contended that the petitioner has committed a heinous offence as she has aided and abetted the main accused in commission of rape upon her own daughter. Therefore, keeping in view severity of the crime which the petitioner has committed, she does not deserve to be enlarged on bail.

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

7. Before coming to the merits of the rival submissions made by the parties, it would be apt to notice the principles governing the grant or refusal of bail. The same have been elucidated in a number of judgments rendered by the Supreme Court and this High Court. These principles may be summarized as under:

(i) The nature and gravity of the accusation and the exact role of the accused;

(ii) The position and status of the accused vis-a-vis the victim/witnesses;

(iii) The likelihood of the accused fleeing from justice;

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

(v) The possibility of repetition of the offence;

(vi) The 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. In the instant case the petitioner has also been booked for offences under POCSO Act. Therefore, while considering his bail application, we have to keep in mind the provisions contained in the said Act, particularly those contained in Section 29 and 30 of the said Act, which read as under:

"29. Presu