Jammu & Kashmir High Court - Srinagar Bench
Basit Bashir Dar vs Ut Of J&K on 17 September, 2021
Author: Sanjay Dhar
Bench: Sanjay Dhar
Item No. 6
Advance List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App. No.76/2021
Basit Bashir Dar ...PETITIONER(S)
Through: Mr. T. H. Khawaja, Advocate.
Vs.
UT of J&K ....RESPONDENT(S)
Through: Mr. B. A. Dar, Sr. AAG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
17.09.2021
1. Through the medium of instant petition filed under Section 439 Cr. P. C, the petitioner has sought bail in FIR No. 83/2021for 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. Page 2 of 8
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.
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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:
(i) Whether there is any prima facie or reasonable ground to believe that the accused has committed offence;
(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 Page 4 of 8 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 provisions of the POCSO Act, which are also required to be kept in mind, are Sections 29 and 30, which read as under:
"29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved."
30. Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental stage but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability".
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9. Section 29 quoted above raises a presumption of commission of an offence under Sections 3, 5, 7 and 9 of the POCSO Act against a person who is prosecuted for commission of the said offence, unless contrary is proved. Similarly, Section 30 quoted above raises a presumption with regard to existence of culpable mental state against an accused in prosecution of any offence under the Act which requires a culpable mental state on the part of the accused. Again, the accused in such a case has been given a right to prove the fact that he had no such mental state.
10. The learned trial Court, while rejecting the bail application of the petitioner, has vide its order dated 10.07.2020 relied upon the provisions contained in Section 29 of the POCSO Act to observe that the culpability of offences under the said Act has a presumption attached to it.
11. There can be no quarrel with the proposition of law that Section 29 of POCSO Act raises a presumption of guilt against a person who is prosecuted for committing an offence of penetrative sexual assault which is punishable under Section 4 of POCSO Act. It is an admitted case of the parties that the petitioner has been prosecuted, inter alia, for commission of offence under Section 4 of POCSO Act, inasmuch as challan against him already stands filed before the Special Court. The question that arises for consideration is whether an accused has, in law, any right or opportunity to rebut the aforesaid presumption, particularly when Section 29 of the POCSO Act clearly provides that Page 6 of 8 unless the contrary is proved, the presumption has to be drawn against the accused once he is prosecuted for offences under Section 3, 5, 7 and 9 of the POCSO Act.
12. This Court in the case of Badri Nath v. Union Territory of J&K (Bail App No.139/2020 decided on 11.12.2020), had an occasion to deal with this issue and after discussing the judgments of various High Courts and the Supreme Court on the subject, the Court made the following observations:
"23. In the bail proceedings, even at pre-trial stage, it would open to an accused to highlight the circumstances/material or lack of it to show that foundational facts are not established and in this manner, the right available to an accused under the later part of the provision contained in Section 29 of the POCSO Act would get safeguarded.
24. For the foregoing reasons, I am of the considered opinion that at the time of considering the bail application of an accused, who has been booked for the offences under Sections 3, 5, 7 & 9 of the POCSO Act, the presumption under Section 29 of the said Act would come into play even at the pre-trial stage. The accused, of course, would have a right to bring to the notice of the Court the material or lack of it to show that the foundational facts giving rise to the presumption are prima facie not established in the case.
13. Thus, it is in the light of aforesaid legal position, that the facts and material of the instant case are required to be analyzed so as to Page 7 of 8 determine whether or not foundational facts giving rise to presumption under Section 29 of the POCSO Act, are, prima facie, established.
14. If we have a look at the material annexed to the charge sheet that has been laid before the Special Court against the petitioner, it is revealed that during the investigation of the case, the investigating agency has recorded statements of both the victim girls as also the statements of father and brother of one of victim girls under Section 164-A Cr. P. C. None of these witnesses have supported the case of the prosecution, inasmuch as they have not stated anything to even remotely suggest that the victim girls were subjected to any sexual assault by the petitioner. It also appears that during the pendency of bail proceedings before the Special Court, the father of one of the victim girls appeared before the Court and while informing the Court that the girls had gone out of their houses on their own, he expressed his no objection to the grant of bail to the petitioner.
15. In the face of the aforesaid material on record and without commenting upon merits of the case, lest it may prejudice the case of the prosecution, it appears that, prima facie, foundational facts that would give rise to the presumption under Section 29 of the POCSO Act against the petitioner, are not established in this case. Thus, prima facie, it appears that the presumption of guilt against the accused, in these circumstances, may not get triggered meaning thereby that there Page 8 of 8 is no prima facie ground to believe that the petitioner has committed the alleged crime.
16. For the foregoing reasons, the application of the petitioner deserves to be accepted. Accordingly, the application is allowed and the petitioner is admitted to bail subject to the following conditions:
I. That he shall furnish personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the learned trial court;
II. That he shall appear before the trial court on each and every date of hearing;
III. That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court;
IV. That they shall not tamper with prosecution witnesses.
17. Observations made hereinabove shall remain confined to the decision of the instant application only and shall not be construed as an opinion on the merits of the case.
(Sanjay Dhar) Judge Srinagar, 17.09.2021 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No MOHAMMAD ALTAF BHAT 2021.09.20 10:26 Whether the order is reportable: Yes/No I attest to the accuracy and integrity of this document