Jammu & Kashmir High Court
Aaqib Hussain vs Union Territory Of J&K on 9 May, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Bail App No. 112/2023
Pronounced on : 09.05.2025
Aaqib Hussain .... Petitioner/Appellant(s)
Through:- Mr. F. S. Butt, Advocate
V/s
Union Territory of J&K .....Respondent(s)
Through:- Mr. Mohd. Irfan, GA
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
ORDER
01. The petitioner has filed the present application under section 438
Cr.P.C. for grant of bail in FIR No. 60 of 2023 dated 30th of March 2023,
registered by Police Station Kishtwar for the offences under section 376
IPC read with section 4 of POCSO Act.
02. The contention of the petitioner is that a false and frivolous FIR
No. 60 of 2023 dated 30th of March 2023 has been registered by the Police
Station Kishtwar for the offences under section 376 IPC and 4 of POCSO
Act. The FIR has been registered with mala fide intention by the father of
the prosecutrix to wreck vengeance against the petitioner's family. It is
submitted that the paternal aunt of the petitioner was married to one Tariq
Ahmed, about 13-14 years ago, but recently Tariq Ahmed had married
again with one Nahida Begum, who is paternal aunt of the prosecutrix and
real sister of the complainant-Mehraj Din. This marriage has become the
cause of enmity between two families and led to false allegations against
the petitioners.
03. The incident is alleged to have occurred on the evening of 27th of
March 2023 and the registration of FIR is delayed by three days. This delay
has been justified on the ground that the community had requested for
settlement of the issue, therefore, there was delay in reporting the matter to
the Police. The petitioner is a young boy of 22 years and is pursuing his
graduation and is not involved in the incident which has been alleged only
to wreck vengeance. The applicant apprehends that he will be arrested and
submits that he has deep roots in this society and will not jump over bail or
with the prosecution evidence.
04. The respondent in his reply has submitted that the act the
petitioner committing offence with a minor, who is 15 years of age. The
petitioner has absconded from the date of the order and there is no prospect
of arrest of the accused. The learned Principal Sessions Judge, Kishtwar
has formally declared the accused to be absconding by way of an order
dated 31.01.2023. The statement of witnesses recorded before the Trial
Court clearly establish a case under Section 376 IPC and section 4 of the
POCSO Act, such as established by the charge-sheet presented before the
Learned Magistrate.
05. As per the story of prosecution, on 30.03.2023, a written
application was received on behalf of the complainant-Mehraj Din stating
that the minor daughter of the complainant had gone to get milk when the
petitioner caught her and dragged her to the fields where he outraged her
modesty when she raised her voice, he threatened her. The minor daughter
narrated this incident to her aunt when the petitioner forcible raped her in
the nearby field.
06. FIR No. 60 of 2023 under section 376 IPC and Section 4 of the
POCSO Act was registered at Police Station Station Kishtwar. During the
course of enquiry, the Investigating Officer visited the spot and after
enquiry, produced the victim girl before the Child Welfare Committee, who
conducted the medical examination of the victim. The Investigating Officer
enquired the Headmaster Government, MS Pulekha Pasu about the date of
birth certificate of the of the minor and as per the date of birth certificate
issued, the date of birth of victim is 23rd of October 2007 and on the day of
the occurrence and registration of FIR, her age was 15 years and she was a
minor at that time. The IO recorded the statement of the victim girl under
section 164 Cr,P.C., before the Juvenile Justice Board, Kathua (JJB)
Kathua.
07. The POCSO Act was introduced as the child victims were not
getting adequate protection and to safeguard the interests of the child
victim. The Act was brought out which operate in a manner that bent
interest and well being of child be taken into consideration.
08. The Hon'ble Supreme Court has elaborated on the reason for
bringing out the POCSO Act in Eera through Dr. Manjula Krippendorf
V. State of NCT of Delhi reported as (2017) 15 SCC 13. The relevant
portion of the said judgment reads as under:-
"20. The purpose of referring to the Statement of Objects and Reasons and
the Preamble of the POCSO Act is to appreciate that the very purpose of
bringing a legislation of the present nature is to protect the children from the
sexual assault, harassment and exploitation, and to secure the best interest of
the child. On an avid and diligent discernment of the Preamble, it is
manifest that it recognises the necessity of the right to privacy and
confidentiality of a child to be protected and respected by every person by
all means and through all stages of a judicial process involving the child.
Best interest and well-being are regarded as being of Paramount importance
at every stage to ensure the healthy physical, emotional, intellectual and
social development of the child. There is also a stipulation that sexual
exploitation and sexual abuse are heinous offences and need to be
effectively addressed. The Statement of Objects and Reasons provides
regard being had to the constitutional mandate, to direct its policy towards
securing that the tender age of children is not abused and their childhood is
protected against exploitation and they are given facilities to develop in a
healthy manner and in conditions of freedom and dignity. There is also a
mention which is quite significant that interest of the child, both as a victim
as well as a witness, needs to be protected. The stress is on providing child-
friendly procedure. Dignity of the child has been laid immense emphasis in
the scheme of legislation. Protection and interest occupy the seminal place
in the text of the POCSO Act."
09. The allegations against the petitioner that he has committed this
heinous act with 15 years old child. The trauma suffered by the child has
long lasting effects and this could hinder the growth of the child. The
respondent No. 2 has submitted that the petitioner has fled and is
deliberately hiding to evade the judicial process. The victim harbours a fear
for her safety. The petitioner is involved in a heinous offence and granting
bail at this stage would defeat the very purpose of the trial and the object of
the POCSO Act.
10. Accordingly, this Court is not inclined to grant bail to the
petitioner. This bail application is rejected in the above terms.
(SINDHU SHARMA)
Judge
JAMMU
09.05.2025
RAM MURTI
