Jammu & Kashmir High Court
Reserved On: - 14.10.2025 vs Ut Of J&K Th on 17 October, 2025
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Sr. No. 06
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No. B.A No. 189/2025
CrlM No. 1194/2025
Reserved on: - 14.10.2025
Pronounced on: - 17.10.2025
Uploaded on: - 17.10.2025
Whether the operative part or full
judgment is pronounced:- Full
Arshad Ahmed, Age 28 years, S/o Bashir ....Petitioner/Applicant(s)
Ahmed, R/o Village Bagan Kote, Tehsil
Chassana, District Reasi.
A/p District Jail Udhampur Th. his father,
namely, Bashir Ahmed, Age 45 years, S/o
Abdul Wahad, R/o Village Bagan Kote,
Tehsil Chassana, District Reasi.
Through:- Mr. Arshad Hussain, Advocate.
V/s
1. UT of J&K Th. .....Respondent(s)
SHO Police Station, Mahore, District Reasi.
2. Y Minor Th. his father Mohd. Yousuf,
R/o Shibras, Tehsil Mahore, District Reasi.
Through:- Mr. Sumeet Bhatia, GA.
CORAM: HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
ORDER
1. Background and Case Details
1.1 The petitioner has invoked jurisdiction of this Court seeking
enlargement on bail in case FIR No. 32/2022 registered at Police
Station, Mahore for offences under Sections 366, 376 and 109 of the
IPC read with Sections 3/4 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act).
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1.2 The petitioner's grievance is that the police have lodged a false and
frivolous case against him and his family members, all of whom are
innocent and have been falsely implicated. The alleged occurrence
dates back to 22.04.2022, when the prosecutrix had, of her own
volition, gone to the house of one Mohd. Hanief, who, as per the
petitioner, even attempted to convince her parents that she was
unwilling to marry according to their wishes.
1.3 It is further stated that the prosecutrix, through the said Mohd.
Hanief had approached this Court by way of WP(C) No. 966/2022,
seeking directions to the police to provide her protection from her
parents, who were attempting to solemnise her marriage against her
will. This Court had directed the police to ensure that her marriage
was not solemnised against her wishes.
1.4 Subsequently, the father of the prosecutrix filed WP(Crl) No.
13/2022 seeking custody of the minor girl. In compliance thereof, the
prosecutrix appeared before the Court and stated that she was
residing with Mohd. Hanief out of her own consent and will. She was
thereafter sent to Nari Niketan, and later, in terms of an order dated
25.05.2022, handed over to her father. The father of the prosecutrix
then procured her statement under Section 164 Cr.P.C, in which the
petitioner was allegedly implicated for rape. However, the medical
opinion obtained during the investigation revealed no evidence of
sexual intercourse. The petitioner was arrested on 25.05.2022 and
has remained in custody since then. Out of eleven witnesses, several,
including the prosecutrix, have already been examined, and in her
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testimony, she has stated that, Mohd. Hanief was also falsely
implicated by her father.
1.5 This Court has already granted Hanief and the father of the petitioner
bail, whereas the petitioner, being the only son of his parents,
continues to languish in custody without any legal basis. The trial
Court has dismissed his bail plea on 24.06.2025, primarily observing
that the offence alleged is heinous in nature and the petition is
premature.
2. Prosecution Version
2.1 As per the prosecution, the father of the victim lodged a written
complaint on 22.04.2022, alleging abduction of his daughter by the
petitioner and co-accused. The victim was recovered on 20.05.2022
from Janipur, Jammu and sent to Nari Niketan. She was later
handed over to her parents after expressing a willingness to reside
with them.
2.2 Upon completion of the investigation, offences under Sections 366,
376 & 109 IPC read with Sections 3/4 of the POCSO Act were
stated to have been established against the petitioner, his father,
Bashir Ahmed, and Mohd. Hanief. The latter two were granted bail
by a Co-ordinate Bench of this Court on 24.05.2022, while the
petitioner remains in custody. Charges were framed on 10.08.2022,
and several witnesses have been examined in the ongoing trial.
3. Submissions on Behalf of the Petitioner
3.1 Ld. counsel for the petitioner contends that the victim was not a
minor, as no conclusive evidence regarding her age has been brought
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on record by the prosecution. The non-invocation of Section 363 IPC
against the petitioner substantiates that the prosecutrix was a major
and had voluntarily accompanied the petitioner.
3.2 The victim's own statements before this Court in the earlier writ
proceedings negate any allegation of kidnapping or abduction. The
Lamberdar (village head), cited as a prosecution witness, has also
testified that the victim came voluntarily to the house of Mohd.
Hanief expressed her desire to marry the petitioner.It is further
argued that PW-5, Challan Singh, made a telephonic call to the
father of the prosecutrix, who allegedly demanded a sum of ₹ 10
Lacs. from the petitioner's family to "settle the matter."
3.3 Ld. counsel submits that the entire prosecution case is fabricated,
unsupported by medical evidence, and devoid of legal foundation.
The maximum punishment under Section 376 IPC does not attract
the bar under BNSS 2023, and since the victim was a major,
Sections 3/4 POCSO are inapplicable. Most material witnesses
have already been examined, and no purpose will be served by
keeping the petitioner incarcerated.
4. Submissions on Behalf of the Respondents
4.1 Ld. counsel for the respondents has opposed the bail plea,
submitting that the statement of the prosecutrix recorded under
Section 164 Cr.P.C implicates the petitioner and has been reiterated
in her deposition before the trial Court.
4.2 It is argued that the petitioner, in connivance with the co-accused,
abducted the minor girl and subjected her to forcible sexual
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intercourse. She was allegedly kept in a jungle for 4-5 days, during
which the petitioner repeatedly violated her privacy. Given that the
victim was a minor, Sections 3/4 of the POCSO Act stand
established.
4.3 The trial Court, after due consideration of the facts and law, rightly
dismissed the bail plea, holding that the petitioner failed to establish
a prima facie case for release.
5. Rebuttal Submissions
6. In rebuttal, the counsel for the petitioner argued that the
presumption under the POCSO Act is rebuttable and that the
surrounding circumstances, particularly the victim's prior
statements before this Court, demonstrate that the allegations were
made under parental pressure. Once the victim was taken back into
parental custody, the father orchestrated a false implication of the
petitioner. It is therefore urged that the prosecution's case lacks
credibility, and the petitioner's continued incarceration amounts to
pre-trial punishment.
7. I have heard learned counsel for the parties and perused the material
available on record.
8. Before adverting to the merits of the case, it is necessary to notice
the admitted factual background that has emerged during the
proceedings.
9. It appears that the father of the prosecutrix, in the initial complaint,
had alleged that the present petitioner, along with five others, had
abducted his daughter and that the prosecutrix had also stolen a sum
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of ₹50,000 from his house. On that basis, FIR No. 30/2022 came to
be registered under Sections 363/109 IPC on 22.04.2022.
10. Meanwhile, the prosecutrix filed a petition before this Court, being
WP (C) No. 966/2022, alleging that her father was forcibly
attempting to solemnise her marriage against her wishes and that
she apprehended harassment at his hands. The said writ petition was
disposed of on 05.05.2022 with directions that her grievances be
looked into and that no harassment shall be caused to her.
11. Thereafter, the father of the prosecutrix filed WP (Cr.) No. 13/2022
alleging that the prosecutrix was under illegal confinement.
Pursuant to the said petition, the victim was produced before this
Court on 20.05.2022, where she stated in open court that she was
residing with one Mohd. Hanief went out of her own free will.
However, since it was brought to the notice of the Court that she
was a minor, she was directed to be kept in Nari Niketan and
produced again on 25.05.2022. On that date, she expressed her
willingness to reside with her father, and accordingly, she was
handed over to him.
12. Subsequently, on 25.05.2022, she made a statement under Section
164 Cr.P.C., implicating the present petitioner in the offences of
abduction and rape, and also naming the petitioner's father and the
said Mohd. Hanief as abettors.
13. During the trial, the prosecution has so far examined the
prosecutrix, her father (the complainant), PW Sams Din, PW Abdul
Rashid, and PW Charan Singh. The petitioner has been in custody
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since 03.06.2022 and stands charged under Sections 366 and 376
IPC and Section 4 of the POCSO Act, offences which are grave and
heinous in nature.
14. Section 376 IPC prescribes a punishment of not less than ten years,
which may extend to imprisonment for life. A similar punishment is
provided under Section 4 of the POCSO Act. In 1973 JKLR 74, it
was observed that in cases where the law prescribes life
imprisonment or an alternative lesser term, the object of such
legislative design is to enable the court to exercise discretion
depending upon the circumstances. However, even in such cases,
bail may be declined if public or State interest so demands. This
position was reiterated by this Court in 1987 KLJ 237.
15. It is also well settled that though Section 29 of the POCSO Act
raises a presumption of culpability against the accused, the same is
not absolute and remains rebuttable. The prosecution must first
establish the foundational facts before such a presumption can be
invoked, as it merely provides an additional evidentiary advantage
to the prosecution. Thereafter, the burden shifts to the accused to
rebut the presumption by establishing his innocence.
16. However, it is equally trite that the petitioner continues to be an
accused and not a convict; and the cardinal principle of criminal
jurisprudence that an accused is presumed to be innocent until
proven guilty cannot be overlooked, however stringent the penal
provisions may be.
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17. The petitioner has been in custody for more than three years, and
the prosecution has yet to conclude its evidence. The record reveals
that before the alleged abduction, the prosecutrix was accused of
having stolen ₹50,000 from her home and that she later
accompanied the petitioner and co-accused. She has also stated that
she travelled by bus to Jammu with co-accused Mohd. Hanief, a
relative, and that she did not raise any alarm despite passing
through several public places and police checkpoints a circumstance
which renders the theory of abduction doubtful.
18. Moreover, the medical examination conducted on 20.05.2022 found
no evidence of sexual intercourse. Although the age of the
prosecutrix is stated to be below 18 years, hence making her
consent immaterial in the eyes of law. But the overall circumstances
suggest the possibility of an elopement, particularly as she had
earlier expressed before this Court her desire not to reside with her
father and had stated that she was staying with Mohd. Hanief of her
own volition.
19. While it is true that offences under the POCSO Act are serious and
the wrongdoer must be punished, at the stage of bail, the Court must
confine itself to whether a prima facie case exists and whether
further incarceration of the petitioner is warranted or not. Here, the
prosecutrix appears to be a consenting party, though having regard
to her age, as has been shown in the charge-sheet as more than 17
years, but less than 18 years and taking the law on the subject,
though her consent is immaterial, however, it cannot be denied that
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she was capable to understand all the consequences post her
elopement, if any, with the petitioner. Prima-facie, there also
appears to be the probability that the prosecutrix wanted to marry
the petitioner, which was not to the choice of her father. That is
why, in the petition filed before this Court, she had sought
protection from her father. Till she remained out of the care of her
father, nowhere she came forward with the allegation of abduction
or rape. It is only after she went with her father that the whole case
was prepared against the petitioner, his father and co-accused,
namely, Mohd. Hanief with whom the petitioner had travelled from
Mahore to Jammu to file the petition.
20. A bare reading of the complaint and the material available on
record, it appears that the prosecutrix had left her family and the
petitioner had escorted her. This was purely the case of elopement
of two people, who appear to be in some relationship, where
unfortunately the victim is a minor girl. In that background, the
petitioner does not deserve to be kept in continuous incarceration
pending culmination of trial, that otherwise also is of no use of the
prosecution. So taking the merits of the case as it is, this Court
finds that the petitioner has been able to carve out a strong prima-
facie case for his enlargement on bail. Accordingly, he is directed to
be released from custody, subject to furnishing personal bond for an
amount of ₹1,00,000/- (Rupees One Lac) with two sureties of the
like sum, with further conditions, as may be laid by the trial Court,
so as to ensure speedy trial in case of the petitioner.
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21. Needless to mention here that the observations made, if any, are
only for the purpose of adjudication of this bail application and
shall not be construed as merits of the case. As such, the bail
application is allowed.
22. Disposed of, alongwith connected applications, if any.
23. Copy of this order shall be notified to the trial Court for taking
sequential steps and compliance.
(Sanjay Parihar)
Judge
JAMMU
17.10.2025
Ram Krishan
