When Victim Avoids Stepping Into Witness Box, Such Conduct Sufficient To Entitle Accused To Bail: Jammu & Kashmir High Court In POCSO Case

Granting bail to an accused in a POCSO case, the Jammu and Kashmir and Ladakh High Court has said that simply because the prosecutrix keeps herself away from appearing in court, the plea for bail cannot be deferred indefinitely.

"It is not the case of the prosecution that trial is being delayed because of the conduct of the accused but it is a case where the victim is avoiding to step into the witness box. This conduct of the victim is sufficient to entitle the petitioner to concession of bail," Justice Sanjay Dhar observed.

The court was hearing an application seeking bail in a case arising from the offences of kidnapping and sexual assault. The accused was arrested in April 2020 and his first bail application was rejected by the trial court on the ground that the statement of the victim remained to be recorded.

Afterwards, the High Court rejected the petitioner's bail application but provided him with the opportunity to approach the trial court once more. However, when the victim approached the trial court again, the plea was once again dismissed due to the fact that the victim's statement had not yet been recorded.

Upon examining the case, Justice Dhar noted that the maximum sentence for the offence with which the petitioner is charged carries a sentence of maximum 5 years and accused has spent more than three years in custody as on date.

Sec 436-A makes it 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 bench underscored.

Commenting on the submissions of the prosecution that despite best efforts, the Investigating Agency is unable to trace the prosecutrix, the court said:

"This cannot form a reason for denying the statutory right that has accrued in favour of the petitioner by spending more than one-half of the maximum period of imprisonment specified for offence under section 8 of the POCSO Act".

Case Title: Ravi Kumar Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 147

Click Here To Read/Download Judgement