POCSO: Delay in recording the statement of the victim does not deter the accused from being released on bail- J & K and Ladakh High Court

POCSO: Delay in recording the statement of the victim does not deter the accused from being released on bail- J & K and Ladakh High Court

The Jammu and Kashmir and Ladakh High Court, while hearing the bail application of an accused jailed under the POCSO Act last month, said that the act of avoiding testimony by the victim is sufficient for the accused to be released on bail.

A bench of Justice Sanjay Dhar said that the consideration of the bail plea of ​​the accused cannot be postponed indefinitely merely because the victim is not present before the court.

In this case, the charge was framed against the accused on 13 October 2021 after he was taken into custody on 27 April 2020 under Section 363,109 of the IPC and Section 8 of the POCSO Act. The trial in this case is not yet complete.

The petitioner had applied for bail twice in the lower court, but the bail plea of ​​the petitioner was rejected by the lower court due to non-recording of the statement of the victim.

After the lower court rejected the bail plea for the first time, the petitioner appealed to the High Court, but the court gave him the freedom to apply for bail again in the lower court, and to ensure that the statement of the victim is recorded in the next hearing. After which the petitioner applied for bail in the lower court. The lower court again rejected the bail application of the petitioner for not recording the victim’s statement.

The respondent side in its submission submitted that despite best efforts the prosecution has not been able to trace the victim due to which her statement has not been recorded before the Court.

The court said that despite the instructions, the prosecution could not present the victim for statement before the court, hence the petitioner has applied for bail in the High Court.

The Court referred to Section 436A of the CrPC to hold that an accused cannot be detained in custody for a period exceeding half of the period of maximum imprisonment specified in the offense committed and on the expiry of the said period the Court may issue sureties on a personal bond. He shall be released with or without surety.

The Court observed that the statutory right of bail granted to the petitioner under Section 436A of CrPC does not end on the ground that the victim could not be traced despite efforts.

The Court observed that, “the case of the prosecution is not that the trial is being delayed due to the conduct of the accused, but it is a case where the victim is avoiding the witness box. This conduct of the victim is sufficient to entitle the petitioner to the concession of bail.”

On the basis of these facts, the Court ordered the petitioner to be released on bail with conditions.

Case: Ravi Kumar Vs. State of Jammu & Kashmir Bail App No. 47/2023