jammu and kashmir and ladakh high court

Jammu and Kashmir and Ladakh High Court: While deliberating over instant petition wherein the accused was seeking bail in a case arising for offences under Sections 363 and 109 IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the bench of Sanjay Dhar, J.*, held that statutory right to bail granted to the accused in terms of provisions contained in Section 436-A of the CrPC cannot be defeated by stating that despite best efforts, the victim could not be traced.

Background: The accused was arrested on 27-04-2020 under the afore-stated provisions and charges against him were framed on 13-10-2021. The accused had approached the Trial Court by way of a bail application, but the same was dismissed by order dated 28.06.2022 on the ground that the statement of the prosecutrix had not yet been recorded. The accused then approached the High Court, and the bail application was disposed of giving liberty to the accused to approach the Trial Court afresh. The High Court had also issued direction to the respondents to take all necessary steps for ensuring the presence of the prosecutrix before the Trial Court on the next date of hearing and to extend all necessary cooperation in recording the statement of the prosecutrix.

After the above-mentioned developments, on 21-12-2022, the accused once again applied for bail and once more it was dismissed by the Trial Court for non-recording of victim’s statement.

Court’s Assessment: Pursuing the facts of the case, the Court noted that the accused is in custody since April 2022. The Court further perused Section 436-A of CrPC, which provides for maximum period for which an undertrial prisoner can be detained. It was observed that an undertrial prisoner cannot be detained for a period more than one-half of the maximum punishment period of imprisonment specified in the offence in which he has been taken into custody and upon expiry of the said period, he has to be released by court on personal bond with or without sureties.

The Court also pointed out that the Investigating Agency could not trace the prosecutrix despite their best efforts and consequently the prosecution has failed to produce her before the Trial Court.

The Court therefore held that just because the prosecutrix could not be traced and produced before the Trial Court, this cannot form a reason for denying the statutory right that has accrued in favour of the accused by spending more than one-half of the maximum period of imprisonment specified for offence under Section 8 of the POCSO Act.

The Court further stated that accused’s statutory right to bail in terms of provisions contained in Section 436-A CrPC, cannot be defeated by stating that best efforts were taken to trace the victim, but the same did not materialise in a concrete result. “It is not the case of the prosecution that trial is being delayed because of the conduct of the accused but it is a case where the victim is avoiding stepping into the witness box”. Therefore, the victim’s conduct is sufficient to entitle the accused to concession of bail.

The Court thus allowed the petition, thereby granting conditional bail to the accused.

[Ravi Kumar v. Union Territory of J&K, 2023 SCC OnLine J&K 259, decided on 12-05-2023]

*Order by Justice Sanjay Dhar

Advocates who appeared in this case :

Petitioner/Accused- Vasudha Sharma, Adv.;

Respondent- Vishal Bharti, Dy. AG.

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