The Single Judge Bench of the Jammu and Kashmir and Ladakh High Court , comprising Justice Sanjay Dhar in the case of Ravi Kumar Vs Union Territory of J&K has granted bail to the petitioner, involved in POCSO case and observed that mere absence of the prosecutrix from court proceedings should not result in the indefinite deferral of the bail plea.
The Petitioner was arrested on 27.04.2020 in connection with the POCSO case and charges against him were framed on 13.10.2021. Till date, the trial of the case has not been completed. Aggrieved by which, the petitioner has filed bail petition in High Court.
The petitioner had approached the trial court by way of a bail application, but the same was dismissed by the trial court in terms of order dated 28.06.2022 on the ground that the statement of the prosecutrix is yet to be recorded.
The Court took notice of the fact that a direction was issued 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.
The petitioner again moved the trial court and filed the bail application on 21.12.2022. The same has again been dismissed by the trial court on the ground that only three witnesses have been examined by the prosecution and that the statement of the victim is yet to be recorded.
The Court considered the facts of the case and observed that the petitioner is facing trial for offence under section 8 of the POCSO Act and the said offence carries maximum punishment of imprisonment of five years. As already noted, the petitioner has been in custody in the instant case since 24.04.2020, meaning thereby that he has spent more than three years in custody as on date .
The Court paid reliance to Section 436A of the Code of Criminal Procedure, which provides for maximum period for which an under trial prisoner can be detained and expounded that 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 was also informed by the respondent that despite best efforts, the Investigating Agency is unable to trace the prosecutrix as a result of which, she could not be produced before the Court below for recording her statement on which the Court held that 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.
Therefore, the Court allowed the bail petition on certain conditions and disposed off the matter.
Case Details
Case:- Bail App No. 47/2023
Petitioner:- Ravi Kumar
Respondent:- Union Territory of J&K
Judge: Justice Sanjay Dhar
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