Back
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
Sanjay Dhar, J.
Basit Bashir Dar - Petitioner
Versus
UT of J&K – Respondent
Bail App. No. 76/2021
Decided On : 17-09-2021
BAIL - POCSO Act and IPC Offences - Section 363, 376 IPC; Section 4 POCSO Act; Section 29, 30 POCSO Act; Section 439 Cr.P.C - The court analyzed the provisions of the POCSO Act and the IPC, particularly focusing on the presumption of guilt under Section 29 of the POCSO Act and the criteria for granting bail under Section 439 Cr.P.C. The court highlighted that the presumption of guilt can be rebutted by the accused if foundational facts are not established. The court found that the evidence presented did not support the prosecution's claims, leading to the conclusion that the petitioner was entitled to bail.
Fact of the Case:
The petitioner sought bail in a case involving serious charges under Section 363 and 376 IPC and Section 4 of the POCSO Act, claiming false implication and lack of evidence against him. The prosecution alleged that the petitioner kidnapped two minor girls and subjected them to sexual assault after administering drugs.
Finding of the Court:
The court found that the foundational facts necessary to trigger the presumption of guilt under Section 29 of the POCSO Act were not established. Witness statements did not support the prosecution's case, and the father of one victim expressed no objection to bail.
Issues: Whether the petitioner should be granted bail considering the presumption of guilt under the POCSO Act and the evidence available against him.
Ratio Decidendi: The court held that while Section 29 of the POCSO Act creates a presumption of guilt, the accused has the right to demonstrate that the foundational facts for this presumption are not established. In this case, the evidence did not support the allegations, allowing for bail.
Final Decision: The court granted bail to the petitioner, subject to conditions including a personal bond and restrictions on leaving the jurisdiction.
JUDGMENT :
Sanjay Dhar, J.
1. Through the medium of instant petition filed under Section 439 Cr. P. C, the petitioner has sought bail in FIR No. 83/2021 for offences under Section 363, 376 IPC and Section 4 of POCSO Act registered with Police Station, Batamaloo, Srinagar.
2. It is contended that the petitioner has been falsely implicated in the aforesaid FIR and that there is no material on record of the charge sheet that would even remotely suggest the involvement of the petitioner in the alleged crime. It is further averred that the petitioner had approached the learned Special Court for grant of bail but his application was rejected vide order dated 31.07.2021 on the ground that the investigation of the case is still under progress and that there is statutory presumption of guilt of accused until contrary is proved.
3. The petitioner contends that the challan has already been filed before the Special Court and that the material on record of the challan, prima facie, shows that the petitioner is not involved in the alleged crime.
4. The bail application has been resisted by the respondent by filing objections thereto. In their objections, the prosecution, has narrated the incident which is subject matter of the challan. It is stated that on 10.06.2021, Police Station Batamaloo had received a written complaint from brother of one of the victim girls that his minor sister and her friend, aged 15 years and 14 years respectively, are missing from home. The Police registered the FIR and started investigation of the case. During investigation of the case, it was revealed that both the victim girls had been kidnapped by the petitioner in his vehicle and they were subjected to sexual assault after injecting intoxicating drugs upon them. The medical examination of the victims reveals that the two minor girls were subjected to sexual intercourse. Accordingly, offences under Section 363, 376 IPC and 4 POCSO Act were found established against the petitioner and he was taken into custody. The challan against the accused/petitioner is stated to have been filed before the Court on 3rd August, 2021.
5. On the basis of aforesaid facts, the prosecution has contended that the petitioner has committed a heinous crime and that he does not deserve to be enlarged on bail.
6. I have heard learned counsel for the parties and perused the material on record including the trial court record.
7. Before proceeding to analyse the rival submissions, it is necessary to restate the settled legal position about the matters to be considered for deciding the application for bail. These are as under:
(ii) Nature and gravity of the charge;
(iii) Severity of punishment in the event of conviction;
(iv) Danger of the accused absconding or fleeing after release on bail;
(v) Character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with and;
(viii) danger of justice being thwarted by grant of bail.
8. When it comes to offences punishable under a special enactment, such as, POCSO Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment. Section 31 of the said Act makes the provisions of the Code of Criminal Procedure applicable to the proceedings before a Special Court and it provides that the provisions of the aforesaid Code including the provisions as to bail and bonds shall apply to the proceedings before a Special Court. It further provides that the Special Court shall be deemed to be a Court of Sessions. Thus, it is clear that the provisions of Cr.P.C including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act. The present application is, therefore, required to be dealt with by this Court in accordance with the provisions contained in Se
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 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 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 the POCSO Act applies, and the significant age difference between the accused and the victim renders the alleged crime particularly heinous.
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 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....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
