The Jammu & Kashmir and Ladakh High Court granted bail to a man accused of offences including rape under the Protection of Children from Sexual Offences Act (POCSO), observing that the presumption in favour of the prosecution under the statute is rebuttable and that continuing custody in the circumstances of the case would amount to pre-trial punishment. The Division Bench considered the bail application of the accused, who was alleged to have committed sexual assault against his minor granddaughter. The charges against him included rape as defined under POCSO and related provisions of the Indian Penal Code. Upon his arrest and remand, the accused had applied for bail, which was initially declined by the trial court, leading him to approach the High Court.
In hearing the bail plea, the High Court examined the statutory scheme of POCSO, particularly the provision that creates a presumption in favour of the prosecution where a person is accused of committing offences against a child. The Court acknowledged that while the statute does cast a legal presumption on certain aspects when the charge relates to penetrative sexual assault against a minor, this presumption is not irrebuttable and may be counterbalanced by the facts and circumstances of a particular case. The bench emphasised that the presumption under statutory provisions does not obliterate the fundamental right of an accused to seek bail, especially where evidence on record fails to unequivocally sustain the statutory presumption at the time of bail consideration.
The accused’s counsel argued that the prosecution’s evidence was weak, inconsistent and insufficient to support the existence of a prima facie case against him. It was contended that the sole eyewitness testimony contained contradictions, that the medical evidence did not correspond with the allegations, and that there were delays and gaps in the investigation which cast doubt on the reliability of the prosecution case. Counsel also highlighted mitigating factors including the advanced age of the accused, his lack of prior criminal history, and the fact that continued incarceration during the pendency of trial would cause undue hardship and stigmatisation, amounting to pre-trial punishment.
In assessing these submissions, the High Court observed that custodial interrogation had already been completed and that the investigative process was largely over, reducing the necessity for continued detention on the ground of securing evidence or preventing tampering. The Court pointed out that prolonged custody in such a case would serve little purpose other than punitive confinement prior to conviction, which is antithetical to the principles of criminal justice where bail is the rule and jail is the exception. The bench noted that the accused’s personal liberty could not be curtailed on the basis of mere allegations where the evidence was not overwhelming and where suspects should not be subjected to punishment before conviction.
Addressing the statutory presumption under POCSO, the High Court clarified that such presumption is a rebuttable one and that courts must examine whether the prosecution has made out sufficient prima facie material to justify its application at the bail stage. It held that where inconsistencies in the prosecution case and lack of corroborative evidence weaken the statutory presumption, courts may grant bail in appropriate cases, balancing the rights of the accused against the need to ensure the safety and welfare of the child victim. The bench emphasised that the application of the presumption must be measured and contextual, not rigidly applied to negate fundamental rights where circumstances warrant relief.
Taking into account the aggregate material before it, including the nature of evidence, the stage of investigation, the age and personal circumstances of the accused, and the overall interests of justice, the High Court concluded that the continuation of custody would amount to pre-trial punishment disproportionate to the prosecutorial need for detention. Consequently, the bench allowed the bail application subject to conditions, which typically include requirements such as regular attendance before the trial court, non-interference with witnesses, and compliance with any other judicially imposed terms.
In granting bail, the High Court reaffirmed that every accused is entitled to seek bail as a matter of right where the statutory conditions are satisfied and where custodial detention is unwarranted by the evidence or investigative necessities. The judgment underscores that statutory presumptions under POCSO, while significant, are not absolute and must be evaluated in light of case-specific realities during bail adjudication. It also reflects judicial sensitivity to preventing undue pre-trial incarceration, particularly in cases where investigation is effectively complete and where continued custody would not advance the interests of justice.
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