Trial Court Focussed On Alleged Crime's Impact On Women Education Without Applying Judicial Mind: J&K&L HC Grants Bail To POCSO Accused

The Court also observed that in the instant case, the foundational facts, that would give rise to the presumption under Section 29 of the POCSO Act (Presumption as to certain offences) against the petitioner, were not established.

The accused, Ishfaq Ahmad Khan, had moved the High Court after the Sessions Judge denied him bail on the ground that the gravity of the offence alleged to have been committed is serious and that if the accused is released on bail, it will have an adverse impact on the society on large especially in the context of woman's education, her dignity and her empowerment.

Against this backdrop, granting him bail, the Bench of Justice Sanjay Dhar opined that the trial court, while denying him the bail, didn't apply judicial mind and rather, the judge concentrated more on the impact of the alleged crime on women education.

In view of this, the Court specifically held as follows:

"Before considering the impact of a crime on the society, a Court, while deciding a bail application, has to form a prima facie opinion as to the involvement of the applicant in the alleged crime by applying its mind to the material on record"

The facts in brief

A written report was filed before Police Station, Kulgam by a man alleging therein that his daughter had been kidnapped by the accused including the petitioner/bail applicant and that he had attempted to commit rape upon her.

On the basis of said report, FIR for offences under Section 363, 376 511, 323 IPC and Sections 7/8 of POCSO Act was registered against the named accused, including the petitioner.

However, in their statements made under Section 164 Cr.P.C, the father and her daughter/victim clearly stated that it was co-accused, who made her board the vehicle, gagged and kidnapped her from outside her school.

Importantly, she had not imputed any role to other accused i.e., the petitioner herein. The only reference by her to both the accused was that she spotted both the accused in a red coloured vehicle when she came out of her school, whereafter, she concealed herself behind a truck but accused Shariq Safdar chased her, caught hold of her by her hand, gagged her and put her into the vehicle.

High Court's observations

At the outset, the Court noted while the victim and her father had clearly implicated the co-accused but at the same time, they have stated nothing against the petitioner herein. In view of this, the Court opined 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."

Further, stressing that the Special Judge, while rejecting bail application of the petitioner, had not taken the trouble to even apply his mind to the statements made by the victim and her father under Section 164 Cr.P.C., the Court granted him bail on his furnishing personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the trial court.

Case title - Ishfaq Ahmad Khan v. UT of J&K

Click Here To Download Order

Read Order