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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Sanjay Dhar, J.
Ishfaq Ahmad Mir - Petitioner
Versus
UT of J&K Through Superintendent of Central Jail Srinagar & Anr. – Respondents
Bail Application No. 98/2021
Decided On : 20-12-2021
BAIL - POCSO Act and IPC Offences - Cr.P.C. Section 439, POCSO Act Sections 29, 30, 31 - The court analyzed the provisions of the Cr.P.C. and POCSO Act, particularly focusing on the presumption of guilt under Section 29 of the POCSO Act. It highlighted that the presumption can be rebutted by the accused, and in this case, the evidence presented did not establish foundational facts to trigger the presumption. The court concluded that there was no prima facie ground to believe the petitioner committed the alleged crime, leading to the decision to grant bail.
Fact of the Case:
The petitioner sought bail under Section 439 of Cr.P.C. for offences under Sections 363, 376 IPC and 3/4 POCSO Act. The prosecutrix's statement did not implicate the petitioner, and the initial bail application was rejected by the Special Court due to the serious nature of the allegations.
Finding of the Court:
The court found that the foundational facts necessary to establish the presumption of guilt under Section 29 of the POCSO Act were not prima facie established. The statements of the prosecutrix and her father indicated that no crime had been committed by the petitioner.
Issues: Whether the petitioner should be granted bail considering the allegations against him and the applicability of the presumption of guilt under the POCSO Act.
Ratio Decidendi: The court held that the presumption of guilt under Section 29 of the POCSO Act can be rebutted by the accused, and in this case, the evidence did not support the allegations against the petitioner, leading to the conclusion that there was no prima facie case for the charges.
Final Decision: The court allowed the bail application, granting bail to the petitioner with specific conditions.
JUDGMENT :
Sanjay Dhar, J.
1. Petitioner has filed the present petition under Section 439 of Cr.P.C. seeking bail in FIR No.11/2021 for offences under Section 363, 376 IPC and 3/4 POCSO Act registered with Police Station, Rajbagh, Srinagar.
2. It is averred in the petition, that the prosecutrix in her statement recorded under Section 164 Cr.P.C., during the investigation of the case, has not implicated the petitioner. It is also averred that the petitioner had approached the learned Special Court for grant of bail but his bail application was rejected by the said Court in terms of order dated 31.07.2021, on the ground, that the allegations against the petitioner are serious in nature and that no sufficient grounds exist for granting bail to him.
3. The bail application has been resisted by the respondents by filing reply thereto. In their reply respondents have submitted that, on 02.03.2021, Police Station Rajbagh Srinagar, received a written complaint from one, Mohammad Sultan Lone, the father of the prosecutrix, that his daughter has been kidnapped by some unknown person with intention to commit rape upon her. Thus, FIR No. 11 of 2021, for offences under Section 363 and 376 IPC, was registered and the investigation of the case was set into motion. During the course of investigation, the statements of the witnesses were recorded and it was found that the prosecutrix had been kidnapped by the petitioner herein. The prosecutrix was ultimately recovered from Vilgam. After conducting her medical check-up, offences under Section 376 IPC and 3/4 POCSO Act, were added to the case. The statement of the prosecutrix was recorded under Section 164 Cr.P.C. by the Judicial Magistrate 1st Class (City Munsiff) Srinagar. The petitioner was arrested on 12.04.2021. After investigation of the case offences under Sections 363, 376 IPC and 4 POCSO were found established against the petitioner and the challan was filed before the Special Court for trial of offence under POCSO Act (hereinafter referred to as the Special Court) on 13.09.2021. It has been contended that the petitioner has committed heinous offences which are against the society and that he has ruined the life of prosecutrix, as such, he does not deserve to be enlarged on bail.
4. I have heard learned counsel for the parties and perused the material on record including the trial court record.
5. 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.
6. 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 Section 439 Cr.P.C. The other pr
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 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 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 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....
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.
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