J&K&L High Court Denies Bail To Four Accused In Gang Rape Of 15-Year-Old Girl, Cites Unrebutted POCSO Act Presumption

The Court was hearing Bail Application filed by Irqan Ahmad Dar, Basit Ali Dar, Irfan Ahmad Najar and Firdous Ahmad Ahanger, who sought bail in a case arising out of FIR registered Sections 363, 376-D and 109 IPC and Sections 3, 4, 16 and 17 of the POCSO Act.

A Single Bench of Justice M A Chowdhary observed,

“The heinous offence of gang rape having been committed upon a 15 year old girl by four of the applicants and there being statutory presumption for their culpability under POCSO Act with the same not being repudiated, it will not in the interest of justice to grant them bail.”

The case originated from a complaint lodged by the father of the 15-year-old girl on February 11, 2022, stating that she had left home to purchase candies but did not return. She was recovered from the Tourist Reception Centre, Srinagar, on February 12, 2022.

During investigation, she stated that she had been kidnapped from JVC Srinagar by four persons in a Tata Sumo and taken to the Tangmarg forests, where she was subjected to gang rape. She reiterated the allegation before the Magistrate, implicating all four applicants. The investigation was supported by statements of prosecution witnesses as well as medical, digital and scientific evidence, following which the challan was presented.

The applicants sought bail on the grounds of prolonged incarceration, absence of criminal antecedents, alleged weakness in the prosecution case and their contention that the trial was progressing slowly. They also argued that the principal witnesses had already been examined and that continued detention would amount to punitive pre-trial confinement.

The State opposed the plea, contending that the offences were heinous and carried stringent punishment, including imprisonment for the remainder of life. It submitted that release of the applicants could expose the victim to psychological distress and create a possibility of intimidation, tampering with evidence or influencing witnesses. The State further relied upon the medical and FSL material and the statutory presumption under the POCSO Act.

Court's Observation:

The Court began by setting out the factors relevant to consideration of bail, including whether there were prima facie grounds to believe that the accused had committed the offence, the nature and gravity of the accusation, severity of punishment, possibility of absconding, character and standing of the accused, likelihood of repetition, apprehension of influencing witnesses and the danger of justice being thwarted. The Court relied upon Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598.

The Court then considered the statutory punishment attached to the offences. It noted that Section 363 IPC carries imprisonment up to seven years, while Section 376-DA IPC provides imprisonment for the remainder of the natural life of the accused with fine. Section 6 of the POCSO Act prescribes imprisonment of not less than ten years, extendable to life imprisonment, along with fine. The Court further noted that Section 17 prescribes the same punishment for abetment of an offence under Section 6.

The Bench also took note of the statutory presumption under the POCSO Act, observing,

“Section 30 of POCSO Act, 2012 raises statutory presumption as to culpable mental state, on the part of the accused, to be rebutted during prosecution.”

On the principal plea of prolonged incarceration, the Court considered the applicants' reliance upon K. A. Najeeb and Tasleem Ahmad. It acknowledged that constitutional courts may grant bail where prolonged incarceration and the unlikelihood of an early trial make continued detention unjustifiable even in cases involving stringent statutory restrictions. However, the Court also noted the caution in Tasleem Ahmad that “time alone should not be a mathematical command.”

The Court thereafter examined the progress of the trial and found that 22 of the 28 listed prosecution witnesses had already been examined. It accordingly recorded that “the trial is running at a phenomenal pace.” The applicants' assertion that the prosecution case had weakened during trial was also not accepted, as no statement of any witness had been placed before the Court to enable it to examine that contention even for the limited purpose of the bail proceedings.

Against this backdrop, the Court found that the alleged offence, the age of the victim, the number of accused involved, the statutory presumption and the punishment prescribed collectively militated against grant of bail.

It held that the applicants, “having regard to the serious offences alleged to have been committed by them and the gravity of the punishment provided thereof, which includes life imprisonment including the remainder period of life, are not found to be entitled to be admitted to bail.”

The Court also found the stage of trial significant. Since only a couple of witnesses remained to be examined, it held that the applicants should face the trial while in custody. The Court reasoned that release at this stage, having regard to the prescribed punishment, carried a possibility of “flight risk”, besides the possibility that the applicants might evade the trial or tamper with prosecution evidence.

Holding that the nature and seriousness of the offences, the statutory presumption under the POCSO Act, the severity of punishment and the advanced stage of trial outweighed the plea of prolonged incarceration, the High Court found the bail application devoid of merit and dismissed it along with the connected application(s).

Case Title: Irqan Ahmad Dar & Ors. vs. Union Territory of Jammu & Kashmir & Anr.

Citation: 2026 LiveLaw (JKL) 326

Appearances

For the Applicants: Danish Majid Dar, Advocate

For Respondent No. 1: Mohsin S. Qadri, Sr. AAG with Haris Khan, Advocate

For Respondent No. 2: None

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