J&K&L High Court Grants Bail To 75-Yr-Old Grandfather Accused By Granddaughter In POCSO Case, Says Involvement Is 'Highly Doubtful'

Justice Sanjay Dhar, while deciding a Bail Application, underscored that even in cases under the POCSO Act, statutory presumptions are not irrebuttable, and bail cannot be denied once foundational facts fail to survive judicial scrutiny.

Admitting the 75 year old accused grandfather on bail Justice Dhar remarked,

“.. 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”

Background:

The case originated from a written complaint lodged in December 2024 by the prosecutrix, alleging that her grandfather had committed rape upon her and sexually exploited her repeatedly. On the basis of her report, FIR was registered for offences under Section 64 of the Bharatiya Nyaya Sanhita and Sections 5(n) and 6 of the POCSO Act. Given the close blood relationship between the accused and the complainant, the allegations were treated as exceptionally grave.

During investigation, the prosecutrix was medically examined, her DNA samples were collected, and her statement was recorded before a Magistrate under Section 183 BNSS. In that statement, she reiterated the allegations and further alleged that she had recorded a video of the act, which later surfaced publicly.

During the trial the prosecutrix was examined as a prosecution witness, the grandfather sought bail, which was rejected by the trial court, leading to the present petition before the High Court.

Opposing bail, the prosecution strongly emphasized that the allegations were not merely criminal but involved a grave breach of trust by a grandfather, a relationship that traditionally commands protection and care. The State argued that the offence reflected perversion at the highest level, and that releasing the accused would undermine the seriousness with which such crimes are treated, particularly under the POCSO Act.

Court's Observations:

Adjudicating the matter Justice Dhar, however, found that the trial had taken an unexpected and decisive turn when the prosecutrix entered the witness box, and completely retracted her allegations against her grandfather. She stated before the trial court that she had lodged the complaint out of anger and annoyance and categorically asserted that the petitioner had never raped or sexually assaulted her. Despite being declared hostile and subjected to lengthy cross-examination by the Public Prosecutor, she remained firm in denying any sexual wrongdoing by the accused, the court reorded.

Crucially, when confronted with the alleged video evidence, the court noted that she stated that she was not the girl appearing in the video, even though the petitioner appeared to be visible.

The High Court further noted that the girl in the video was not identifiable, a fact already recorded by the trial court and the prosecutrix denied recording the video and claimed ignorance as to how it came to be stored on her phone. Justice Dhar also noted that the DNA analysis did not implicate the grandfather at all, as the forensic report merely established that the DNA samples belonged to the prosecutrix herself.

“Even the DNA sample analysis of the prosecutrix does not implicate the petitioner,” the Court observed.

Father's Testimony and Enmity Angle:

The Court also examined the statement of the prosecutrix's father, who referred to alleged threats and pressure exerted by a third party and spoke about prior instances where the prosecutrix had levelled similar allegations against close relatives, which had failed during trial. This testimony, the Court observed, introduced a serious doubt about the genesis of the allegations against the grandfather.

Presumption Under POCSO Act Not Absolute

Expounding further on the matter Justice Dhar reiterated that while Sections 29 and 30 of the POCSO Act raise presumptions of guilt and culpable mental state, these presumptions are rebuttable. Once the prosecutrix herself, along with other material witnesses, failed to support the prosecution case during trial, the statutory presumption could not continue to operate mechanically against the accused, the court underscored.

“The statutory presumption of guilt operating against the petitioner stands rebutted during trial,” the Court held.

Making a clear reminder that the severity of allegations alone cannot justify prolonged incarceration Justice Dhar noted that the petitioner had already spent about one year in custody, that material witnesses including the prosecutrix had been examined, and that the accused, being over 75 years of age and suffering from multiple ailments, posed no realistic risk of tampering with evidence.

“The concession of bail 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, which is impermissible in law.”

Allowing the bail application, the High Court directed the release of the grandfather on bail subject to strict conditions. The Court clarified that its observations are confined strictly to the bail stage and shall not influence the final adjudication of the trial.

APPEARANCES:

For Petitioner: Mr. Shafqat Nazir, Advocate, with Ms. Hina Baqal, Advocate.

For Respondents: Mr. Ilyas Laway, GA-for R1. Mr. Mir Umar, Advocate-for R2.

Case Title: Ghulam Nabi Ganai Vs UT Of J&K

Citation: 2025 LiveLaw (JKL) 345

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