Recently, the High Court of Jammu & Kashmir and Ladakh granted bail to a 75-year-old grandfather accused by his granddaughter under the POCSO Act, holding that his continued incarceration was legally untenable. The Court delivered a strong reminder that even grave allegations cannot sustain custody once the prosecution’s foundation collapses during trial.
Brief Facts:
The case arose from a written complaint lodged by the prosecutrix alleging repeated sexual assault by her grandfather, following which an FIR was registered for offences under Section 64 of the Bharatiya Nyaya Sanhita and Section 5(n) and Section 6 of the POCSO Act. Given the close familial relationship, the allegations were treated as exceptionally serious. During the investigation, the prosecutrix underwent medical examination, her DNA samples were collected, and her statement was recorded before a Magistrate under Section 183 of the Bharatiya Nagarik Suraksha Sanhita. Upon completion of the investigation, a chargesheet was filed, and charges were framed, leading to the commencement of the trial. The petitioner’s bail plea was initially rejected by the trial court. However, during the trial, the prosecutrix entered the witness box, and her testimony significantly altered the trajectory of the case, prompting the accused grandfather to approach the High Court seeking bail
Contentions of the Petitioner:
The Petitioner contended that the prosecution's case stood completely dismantled once the prosecutrix retracted her allegations during trial and categorically denied any sexual assault by the accused. Counsel argued that the statutory presumption under the POCSO Act stood rebutted by trial evidence, including the prosecutrix’s testimony, absence of incriminating DNA evidence, and material contradictions regarding the alleged video. Emphasis was also placed on the petitioner’s advanced age, deteriorating health, prolonged custody, and the fact that material witnesses had already been examined, eliminating any risk of interference with the trial.
Contentions of the Respondent:
The Respondent argued that the allegations involved an egregious breach of trust by a grandfather against his granddaughter, attracting the most severe penal consequences. It was submitted that offences under the POCSO Act demand a strict approach and that the gravity of the charges, coupled with the existence of video material, justified continued custody. The State further cautioned that release on bail could undermine the seriousness attached to offences of sexual abuse against minors.
Observation of the Court:
Justice Sanjay Dhar emphasised that statutory presumptions under the POCSO Act are rebuttable and cannot survive in isolation from evidence. The Court noted that the prosecutrix, despite being declared hostile and subjected to extensive cross-examination, remained consistent in denying any sexual wrongdoing by her grandfather, even expressing remorse for having levelled false allegations.
The Court also highlighted that the alleged video did not identify the girl involved and that the prosecutrix explicitly denied being the person shown in it. Crucially, the forensic report failed to implicate the accused, with the Court observing that “even the DNA sample analysis of the prosecutrix does not implicate the petitioner.”
The Court observed that “Merely because the petitioner is facing trial for heinous offences which entail punishment extending upto 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 Court held that once the prosecutrix and material witnesses failed to support the prosecution during trial, the presumption of guilt under Section 29 and Section 30 of the POCSO Act stood effectively rebutted, and continued detention could not be justified on the gravity of allegations alone. The Court clarified that its observations were confined to the bail stage and would not influence the final adjudication of the trial.
The decision of the Court:
In light of the foregoing discussion, the High Court allowed the bail application and directed the release of the petitioner on strict conditions.
Case Title: Ghulam Nabi Ganie v. UT of J&K & Anr.
Case No.: Bail App No. 231/2025
Coram: Hon’ble Mr. Justice Sanjay Dhar
Advocate for the Petitioner: Advs. Shafqat Nazir, Hina Baqal
Advocate for the Respondent: GA Ilyas Laway, Adv. Mir Umar
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Picture Source : twitter.com
