Bail cannot be denied to a POCSO accused just because victim avoids testifying: Jammu & Kashmir and Ladakh HC

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The statutory right to bail granted to the petitioner cannot be defeated only because despite best efforts, the victim could not be traced, said the court.

The High Court of Jammu & Kashmir and Ladakh recently allowed bail to a man accused under the Protection of Children from Sexual Offences (POCSO) Act while stating that the victim's refusal to testify in court was sufficient to grant bail to the accused.

The Single Judge Bench of Justice Sanjay Dhar held, “Consideration of the bail petition could not be postponed indefinitely simply because the victim refused to appear in court.”

“It is clear that an undertrial prisoner cannot be detained for a period more than one-half of the maximum punishment period of imprisonment specified in the offence in which he has been taken into custody and upon expiry of the said period, he has to be released by court on personal bond with or without sureties,” the court said.

Court was hearing a bail application filed by the petitioner/accused for the offences committed under Sections 363 and 109 IPC, Section 8 of POCSO.

On April 24, 2020, the accused was arrested and on September 13, 2021 charges were framed against him, but to date, the trial of the case had not been completed. The trial court rejected his bail application in accordance with an order dated June 28, 2022, on the grounds that the prosecutrix's statement had yet to be recorded.

He again filed an application before the present court for bail which was also denied on September 30, 2022, thereby allowing the petitioner to again file an application for bail before the trial court.

The present court also directed the respondents to take all necessary means to ensure their presence before the trial court on the next date of hearing or on any subsequent hearings.

On December 21, 2022, the petitioner again moved the trial court and filed the bail application but the same had been dismissed on the ground that only three witnesses had been examined by the prosecution and that the statement of the victim was yet to be recorded.

After reviewing the case, the high court determined that the accused could not be held for more than one-half of the maximum penalty time of imprisonment specified.

It highlighted, “He is facing trial for an offence under section 8 of the POCSO Act. The said offence carries a maximum punishment of imprisonment of five years. As already noted, the petitioner has been in custody in the instant case since April 24, 2020, meaning thereby that he has spent more than three years in custody as of date. Section 436-A of the Code of Criminal Procedure provides for a maximum period for which an undertrial prisoner can be detained.”

Taking into account the submission that the investigative agency was unable to locate the victim, the court stated that this could not be used to deny the accused's statutory right.

“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 judge added.

Accordingly, the court granted the bail on personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the trial court.

Case Title: Ravi Kumar V/s Union Territory of J&K

Statute: POCSO