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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Abid Hussain Mir – Petitioner
Versus
Union Territory of J&K – Respondent
Bail App. No. 122 of 2021
Decided On : 21-05-2022
BAIL - CRIMINAL PROCEDURE - Cr.P.C. Section 439, POCSO Act Sections 29, 30 - The court discussed the principles governing bail, emphasizing the gravity of accusations, the role of the accused, and the presumption of culpability under the POCSO Act. Sections 29 and 30 create a presumption of guilt and culpable mental state, respectively, but do not bar bail. The court found that the petitioner had prima facie rebutted the presumption of culpability, leading to the decision to grant bail under specific conditions.
Fact of the Case:
The petitioner sought bail under section 439 of the Cr.P.C. for charges of rape and intimidation under RPC and POCSO Act, following allegations made by the father of the prosecutrix. The prosecutrix, a minor at the time of the alleged offences, was found to be pregnant during the investigation. The petitioner claimed false implication and requested a DNA test to prove his innocence.
Finding of the Court:
The court analyzed the principles for granting bail, considering the nature of the accusations and the status of the accused. It noted that the prosecutrix's age at the time of the alleged offences was a critical factor, and while the presumption of culpability under the POCSO Act was acknowledged, the petitioner presented arguments that raised doubts about the allegations.
Issues: Whether the petitioner should be granted bail considering the serious nature of the charges under the POCSO Act and the presumption of guilt established by the Act.
Ratio Decidendi: The court concluded that the presumption of culpability under the POCSO Act does not automatically preclude bail. Each case must be evaluated on its own facts, and the petitioner had successfully rebutted the presumption of guilt based on the evidence presented.
Final Decision: The court granted bail to the petitioner under specific conditions, allowing him to be released while ensuring compliance with the trial proceedings.
JUDGMENT :
SANJAY DHAR, J.
1. The petitioner has invoked the jurisdiction of this Court under section 439 of the Cr.P.C. seeking bail in a case arising out of FIR No. 143/2019 for offences under section 376, 506 RPC and 4 POCSO Act registered with Police Station, Qazigund.
2. As per the prosecution case, on 22.06.2019, father of the prosecutrix lodged a written report with Police Station, Qazigund, alleging therein that his wife has passed away a few years ago whereas one of his sons is mentally sick and his other two sons are away from home in connection with studies. It was alleged in the report that the petitioner, in his absence, would enter his house for the last one year and would commit sexual intercourse with his minor daughter after extending threats to her. According to the report, the prosecutrix did not narrate the incident to anybody because of these threats. On the basis of this report, the FIR came to be registered and investigation was set into motion. During the investigation, medical checkup of the prosecutrix was conducted and it was found that she was pregnant by eight months. The statements of the prosecution witnesses were recorded and the statement of the prosecutrix under section 164 of the Cr.P.C. was also recorded. After investigation of the case, offences under section 376, 506 RPC and 4 POCSO Act were found established against the petitioner and he was taken into custody, whereafter challan was laid before the court. During investigation of the case, the prosecutrix gave birth to a child.
3. It appears that the petitioner had approached the trial court for grant of bail but the same has been rejected by the trial court vide its order dated 03.08.2021. The record of the trial court reveals that the charges against the petitioner stand framed on 15.10.2019 and statements of as many as five witnesses, out of seven witnesses cited in the challan, have been recorded.
4. It has been contended by the petitioner that he has been falsely implicated in the case and that he is languishing in jail since 12th July, 2019. It is further contended that as per the date of birth certificate collected by the investigating agency during the investigation of the case, the date of birth of the prosecutrix is 21st May, 2001, as such, she was major at the time of the occurrence. It is also contended that the petitioner had insisted for conducting DNA test of the child so as to show his innocence but the same has not been done till date. Finally, it has been submitted that the petitioner undertakes to abide by all the conditions if this Court grants bail in his favour.
5. I have heard learned counsel for the parties and perused the material on record.
6. 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:
(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.
7. In the instant case the petitioner has also been booked for offence 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:
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 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 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 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 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 statutory presumption of guilt under the POCSO Act can be rebutted during trial, and bail can be granted based on the specific facts and circumstances of each case.
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.
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