Basit Bashir Dar vs Ut Of J&K
2021 Latest Caselaw 1094 j&K/2

                                                             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.

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.

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

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".

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

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

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

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
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