Bail Cannot Be Deferred Indefinitely Because Victim Kept Herself Away From Appearing In Court: J&K&L HC In POCSO Case
The Jammu and Kashmir and Ladakh High Court granted bail to an accused facing trial for offence under Section 8 of the POCSO Act, as the victim/prosecutrix kept herself away from appearing in court. The Bench while noting that the petitioner-accused has already spent 3 years in custody, whereas the maximum punishment for the alleged offence is 5 years, was of the opinion that
“…The consideration of petitioner’s plea for bail cannot be deferred indefinitely simply because the prosecutrix/victim is keeping herself away from appearing in court”.
While referring to the maximum period for which an undertrial prisoner can be detained as provided under 436-A CrPC, a bench of Justice Sanjay Dhar observed, “…the statutory right to bail granted to the petitioner in terms of provisions contained in Section 436-A of the Code of Criminal Procedure cannot be defeated by stating that despite best efforts, the victim could not be traced. The consideration of petitioner’s plea for bail cannot be deferred indefinitely simply because the prosecutrix/victim is keeping herself away from appearing in court. It is not the case of the prosecution that trial is being delayed because of the conduct of the accused but it is a case where the victim is avoiding to step into the witness box. This conduct of the victim is sufficient to entitle the petitioner to concession of bail”.
Advocate Vasudha Sharma, appeared for the petitioner-accused, and Vishal Bharti, Dy.AG appeared for the respondent.
In the present matter, the petitioner-accused was arrested on April 27, 2020, for offences under Sections 363 and 109 IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) while charges against him were framed on October 13, 2021.
The Trial Court denied bail to the petitioner on June 28, 2022, on the ground that the statement of the prosecutrix is yet to be recorded.
Thereafter, the High Court disposed of the bail application on September 30, 2022, giving liberty to the petitioner to approach the trial court afresh with a direction to the respondents to take all necessary steps for ensuring the presence of the prosecutrix before the trial court on the next date of hearing.
However, the Trial Court again dismissed the bail application on December 21, 2022, as the prosecution failed to produce the victim before the trial court for recording her statement.
Therefore, on the submission of the Investigating Agency that despite best efforts, the victim could not be traced, the bench further observed, “…This cannot form a reason for denying the statutory right that has accrued in favour of the petitioner by spending more than one-half of the maximum period of imprisonment specified for offence under section 8 of the POCSO Act”.
Cause Title: Ravi Kumar v. Union Territory of J&K