Bail During Investigation In POCSO Case Where Child Was Assaulted By Uncle Is "Too Premature": J&K&L High Court Cancels Bail
The High Court of Jammu & Kashmir and Ladakh has cancelled bail granted to an accused in a POCSO case, holding that the grant of bail during the investigation was "too premature" where the victim, a minor girl, was allegedly subjected to sexual violence in the house of her close relative by her own maternal uncle.
The Court observed that the accused, being the husband of the victim's maternal aunt, may have exerted pressure and tried to influence the child not to depose against him during trial.
The Court was hearing a petition filed by the Union Territory of Jammu & Kashmir under Section 483(3) read with Section 528 of the Bharatiya Nyaya Suraksha Sanhita, 2023, seeking quashing of order passed by the Principal Sessions Judge, Pulwama, whereby the accused was granted bail in connection with FIR for offences under Sections 7 and 9 of the Protection of Children from Sexual Offences Act.
A Bench of Justice M.A. Chowdhary, while allowing the petition, observed,
"Keeping in view the totality of the facts and circumstances of the case, coupled with the aim and object of the POCSO Act, the grant of bail in favour of the Respondent, in the considered opinion of this Court, was too premature to be granted during the investigation of the case, inasmuch as, the Respondent, who being the husband of the maternal aunt of the victim, may have exerted pressure and tried to influence the hapless child not to depose against him during trial."
Criticising the trial Court for granting bail the bench further observed,
"The Court below had not even waited for completion of the investigation in the case before granting of bail. It would have been in the interests of justice had the Court below declined the plea of grant of bail in favour of the Respondent till the victim was examined before the Trial Court, after framing of charge against the Respondent."
In June 2025 the complainant had approached the Police Station with a written report stating that his sister, the victim, aged about 16 years, had gone to her maternal aunt's house. In the evening, when she went to sleep in a room, the accused, who is the uncle (Mausa) of the victim, entered the room, tried to molest her, grabbed her forcibly, touched her body which hurt her, and threatened her with dire consequences in case she disclosed it to anyone.
The victim managed to escape, and her aunt (Mausi) advised her not to disclose the incident. The victim later narrated the episode to her brother, who lodged the complaint. Subsequently, an FIR was registered under Sections 7 and 8 of the POCSO Act, and during investigation, the victim's date of birth was obtained, which revealed that she was a minor, aged about 14 years as on the date of occurrence.
The victim's statement was recorded under Section 183 of the BNSS before the competent court. It was revealed that the accused is the maternal uncle of the victim and that the victim was staying at his house, which corroborated the offence under Section 9 of the POCSO Act, and the same was added while the offence under Section 8 was dropped.
The accused was arrested, and on 24.06.2025, he filed a bail application before the Sessions Court, which was allowed on 11.07.2025. The UT challenged this order before the High Court.
Court's Observation
The High Court noted that Section 29 of the POCSO Act raises a presumption of certain offences involving Sections 3, 5, 7 and 9, and Section 30 raises a statutory presumption of culpable mental state. The Court observed,
"Though, the aforesaid presumptions are applicable after the accused is charge-sheeted and not for the purpose of bail before framing of charge, as has been argued by the learned Counsel for the Respondent, however, these presumptions show that the sensitivity of the provisions of the POCSO Act are meant to save a child from being subjected to sexual violence."
The Court noted that the child was subjected to sexual violence in the house of her close relatives and that too by a close relative, and that the allegation of threatening was already alleged in the written complaint. The victim, who had been examined before a Magistrate, had made an incriminating statement against the respondent, supporting the version narrated in the FIR.
The Court observed, "In such a situation, the Court below should have considered the bail plea, in light of the perspective as to whether the grant of bail will enhance the course of justice or thwart the same."
The Court, while acknowledging the legal scheme with regard to rejection of bail in a non-bailable case at the initial stage, remarked,
"It is trite that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. Interference or an attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused, in any manner, can be the grounds for cancellation of bail."
The Court further observed,
"In the case on hand, grant of bail at an earlier stage during investigation of the case is a circumstance that the Respondent herein, as an accused, may hamper the investigation which was yet to be concluded in the case and also tamper with the Prosecution evidence, so as to screen himself from the crime he allegedly committed."
In view of these observations the High Court allowed the petition and set aside the order passed by the Sessions Court, cancelling the bail granted in favour of the respondent.
Case Title: Union Territory of Jammu & Kashmir v. Rayees Ahmad Shah
Appearances
Petitioner: Mr. Jehangir Ahmad Dar, Government Advocate
Respondent: Mr. Tariq M. Shah, Advocate