Reiterating that the object of bail is to secure the presence of the accused during trial and not to inflict punishment before conviction, the Court observed that even in serious offences, continued incarceration cannot be justified where the prosecution evidence prima facie creates substantial doubt regarding the accused's involvement.

The Court was hearing a bail application filed by one Nisar Ahmad Joo, who was facing trial in a case registered under Sections 137(2) and 64 of the Bharatiya Nyaya Sanhita, 2023 and Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012.

A Bench of Justice Sanjay Dhar allowed the application, observing,

"The concession of bail to the petitioner, in these circumstances, cannot be denied just to teach him a lesson or to satisfy the conscience of the society as it would amount to inflicting pre-trial punishment upon them, which is impermissible in law."

The prosecution case originated from a missing report lodged by the father of the minor victim in November 2024. During investigation, the victim was recovered and alleged that she had been subjected to sexual assault by four different persons at different places.

Following investigation, three accused were charge-sheeted under the relevant provisions of the BNS and the POCSO Act. Subsequently, during further investigation, the petitioner was arrested, subjected to a test identification parade, potency test and DNA examination, whereafter a supplementary charge-sheet was filed against him.

Charges were framed against the petitioner by the Special Court. During the course of trial, however, the prosecutrix and her father were examined.

While three co-accused had already been granted bail by the High Court, the petitioner's application had been rejected by the trial court on the ground that the prosecutrix had specifically supported the prosecution case against him. Aggrieved, the petitioner approached the High Court seeking regular bail.

The petitioner argued that the prosecutrix had made materially inconsistent statements during different stages of investigation and trial, that her cross-examination substantially weakened the prosecution case, and that the DNA analysis did not support the allegation of sexual assault by him.

The State opposed the application, contending that the prosecutrix had implicated the petitioner, that the allegations were grave, and that his release could result in tampering with witnesses yet to be examined.

Court's Observations:

Before examining the merits, Justice Dhar rejected the State's preliminary objection regarding maintainability of the bail application. Referring to Gurcharan Singh v. State (Delhi Administration), the Court held that rejection of a bail application by a Sessions Court does not prevent the High Court from entertaining a subsequent bail application under its own jurisdiction.

The Court thereafter reiterated the settled principles governing grant of bail and observed that although Sections 29 and 30 of the POCSO Act raise statutory presumptions against an accused, those presumptions are rebuttable and do not operate as an absolute embargo on the grant of bail. Justice Dhar observed,

"The statutory presumption of guilt, which is triggered by operation of Section 29 of the POCSO Act, is rebuttable in nature. Therefore, it is open to an accused to bring to the notice of the Court the material or lack of it to show that the foundational facts giving rise to the presumption are prima facie not established in the case or that evidence led during the trial of the case rebuts the presumption operating against him."

Examining the evidence that had emerged during trial, the Court found that the prosecutrix's version had undergone substantial changes. While comparing her statement recorded under Section 183 BNSS with her subsequent deposition after filing of the supplementary charge-sheet, the Court found significant inconsistencies and contradictions.

Without expressing any final opinion on the merits, the Court observed,

"One thing is clear that vacillating stand of the prosecutrix at various stages of investigation and trial of the case gives rise to a situation which makes out a case for grant of bail to the petitioner, inasmuch as the same offers a sound defence to the charge laid against him."

The Court also attached considerable importance to the scientific evidence collected during the investigation. It noted that DNA profiling did not reveal the presence of any foreign DNA, the medical examination disclosed no evidence of recent sexual intercourse, and the victim's father, in his subsequent statement, also failed to support the prosecution version against the petitioner. These circumstances, according to the Court, substantially weakened the prosecution case at the stage of considering bail.

The Court concluded that, in light of the evidence that had surfaced during trial, the petitioner had prima facie succeeded in rebutting the statutory presumption operating under Section 29 of the POCSO Act. It observed,

"During trial of the case, the statutory presumption of guilt operating against the petitioner in terms of Section 29 of the POCSO Act stands rebutted."

The Bench further noted that the petitioner had remained in custody for about one year, the statements of the prosecutrix and other material witnesses had already been recorded, and therefore the apprehension of witness tampering no longer survived.

Holding that the gravity of the offence alone could not justify indefinite incarceration where the evidence itself rendered the petitioner's involvement highly doubtful, Justice Dhar observed,

"Merely because the petitioner is facing trial for heinous offences which entail punishment extending upto life imprisonment, is not a good enough reason to deny concession of bail to him when his, prima facie, involvement in the alleged crime is highly doubtful. The concession of bail to the petitioner, in these circumstances, cannot be denied just to teach him a lesson or to satisfy the conscience of the society as it would amount to inflicting pre-trial punishment upon them, which is impermissible in law."

Holding that the petitioner had prima facie rebutted the statutory presumption under Section 29 of the POCSO Act, that the evidence emerging during trial substantially weakened the prosecution case, and that continued incarceration would amount to pre-trial punishment, the Court allowed the bail application and directed his release on bail.

Case Title: Nisar Ahmad Joo v. UT of J&K & Anr.

Citation: 2026 LiveLaw (JKL) 326

Click here to read/download the Judgment.