Bail Cannot Be Denied As Pre-Trial Punishment Merely Due To Gravity Of Alleged Offence; Jammu & Kashmir High Court Grants Bail In POCSO Case

The Court was hearing a bail application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita in connection with FIR No. 222/2024 registered for offences under Section 64 of the Bharatiya Nyaya Sanhita and Sections 5(n) and 6 of the Protection of Children from Sexual Offences Act, pending before the Principal Sessions Judge, Anantnag.

A Bench of Justice Sanjay Dhar, while allowing the bail application, held: “Merely because the petitioner is facing trial for heinous offences which entail punishment extending up to life imprisonment is not a good enough reason to deny concession of bail to him when his, prima facie, involvement in the alleged crime is highly doubtful”.

The petitioner was represented by Advocate Shafqat Nazir, Advocate, while the Union Territory of J&K was represented by Ilyas Laway, Government Advocate.

Background

The case arose from a written complaint lodged by the prosecutrix, who alleged that she had been sexually assaulted by the petitioner, her grandfather. On the basis of the complaint, an FIR was registered, and an investigation commenced. During the investigation, the prosecutrix was medically examined, her DNA samples were obtained, and her statement was recorded before the Magistrate.

Upon completion of the investigation, the police laid a charge-sheet for offences under Section 64 of the Bharatiya Nyaya Sanhita and Sections 5(n) and 6 of the POCSO Act. Charges were framed by the trial court, and the trial commenced.

After recording the statement of the prosecutrix during the trial, the petitioner sought bail before the Sessions Court, which was rejected. The petitioner thereafter approached the High Court seeking bail on the ground that the prosecutrix had turned hostile and that the material on record did not support the prosecution's case.

Court’s Observation

The High Court first addressed the objection regarding the maintainability of a successive bail application and held that rejection of a bail application by the Sessions Court does not bar the High Court from entertaining a subsequent bail plea on the same facts.

On merits, the Court examined the statements of the prosecutrix and her father recorded during the trial. The Court noted that the prosecutrix categorically denied having been sexually assaulted by the petitioner and stated that she had complained about a state of anger and was under the influence of external factors. She further stated that the petitioner had never committed any act of wrongdoing against her.

The Bench observed that the prosecutrix, despite being declared hostile, withstood lengthy cross-examination and consistently denied the allegations of rape. The Court also took note of the statement of the father of the prosecutrix, which suggested an underlying dispute involving a third party and indicated that the complaint may have been lodged due to extraneous influence.

The Court examined the video footage relied upon by the prosecution and observed that the girl shown in the video was not identifiable. The prosecutrix had also denied being the person appearing in the video. The DNA analysis report was noted to be non-incriminatory, as it did not connect the petitioner with the alleged offence.

Addressing the statutory presumption under Section 29 of the POCSO Act, the Court held that such presumption is rebuttable and that the material emerging during trial was sufficient, at least prima facie, to rebut the presumption of guilt operating against the petitioner.

The Court further noted that the petitioner was more than 75 years of age and was suffering from multiple ailments. It was also observed that the statements of the material witnesses had already been recorded and that there was no reasonable apprehension of witness tampering.

In this backdrop, the Court held that the gravity of the offence alone could not justify continued incarceration while concluding that “the concession of bail to the petitioner, in these circumstances, cannot be denied just to teach him a lesson or to satisfy the conscience of the society as it would amount to inflicting pre-trial punishment upon him, which is impermissible in law”.

Conclusion

Holding that the petitioner had made out a case for the grant of bail, the Jammu & Kashmir High Court allowed the bail application and directed that the petitioner be released on bail, subject to conditions.

The Court clarified that the observations made in the order were confined to the adjudication of the bail application and would not be construed as an expression of opinion on the merits of the case.

Cause Title: Ghulam Nabi Ganie v. Union Territory of J&K & Anr.

Appearances

Petitioner: Shafqat Nazir, Advocate, with Hina Baqal, Advocate

Respondents: Ilyas Laway, Government Advocate; Mir Umar, Advocate

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