Jammu and Kashmir High Court Grants Bail in POCSO Case Despite Victim’s Absence

In a recent decision, the Jammu and Kashmir High Court has granted conditional bail to an accused person charged under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), despite the victim’s absence from court proceedings. The court emphasized that the consideration of a bail plea should not be indefinitely deferred solely because the victim is unwilling to appear in court.

The case involved an accused who had been arrested in April 2020 under sections 363 and 109 of the Indian Penal Code, as well as section 8 of the POCSO Act. Despite charges being framed against the accused in October 2021, the victim’s statement had not yet been recorded. The accused’s initial bail application was dismissed by the Trial Court on the grounds that the victim’s statement was still pending. Subsequently, the accused approached the High Court, which allowed the accused to reapply for bail and directed the prosecution to ensure the victim’s presence and cooperation in recording her statement.

However, on December 21, 2022, the Trial Court dismissed the accused’s bail application once again, citing the non-recording of the victim’s statement. The High Court examined the provisions of Section 436-A of the Code of Criminal Procedure (CrPC), which set the maximum period of detention for an undertrial prisoner. The court noted that an undertrial prisoner cannot be held for a period exceeding one-half of the maximum punishment specified for the offense. Once this period expires, the court must release the accused on a personal bond, with or without sureties.

The court further highlighted that despite the best efforts of the investigating agency, they were unable to trace the prosecutrix (the victim). As a result, the prosecution failed to produce her before the Trial Court. However, the court reasoned that the inability to trace and produce the victim should not be used as a ground to deny the statutory right to bail, which had accrued to the accused after spending more than half of the maximum imprisonment period specified for the offense under the POCSO Act.

The court clarified that the prosecution did not argue that the trial was being delayed due to the accused’s conduct, but rather due to the victim’s refusal to step into the witness box. Consequently, the court held that the victim’s conduct was sufficient to grant the accused the concession of bail.

Taking all these factors into account, the court granted conditional bail to the accused, in adherence to the statutory provisions outlined in Section 436-A of the CrPC.

This decision by the Jammu and Kashmir High Court highlights the importance of not indefinitely deferring the consideration of bail pleas solely based on the victim’s absence from court. It underscores the statutory right to bail granted to accused persons and emphasizes that the inability to produce the victim should not be used as a ground to deny such rights.

Ravi Kumar v. Union Territory of J&K, Bail App No. 47/2023


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