jammu and kashmir and ladakh high court

Jammu and Kashmir and Ladakh High Court: While deciding the instant application wherein the accused was seeking bail in a case registered for commission of offences punishable under Sections 377 and 506 Penal Code, 1860 r/w Sections 4 and 5(m) of POCSO Act, on the grounds, that he is citizen of India and permanent resident of UT of Jammu & Kashmir, therefore, entitled to the protection of his fundamental rights guaranteed under the Constitution including right to freedom and liberty; the bench of Mohan Lal, J., rejected the bail application and pointed out that the instant case is a case where the nature of the crime committed against the child is so fiendish that it sends shivers down the spine, thus this is a case fit for “Jail” and not “Bail”. The Court emphasised that granting of bail to the accused at a stage where trial is incomplete and statement of the child victim is yet to be recorded, would lead to the danger of the course of justice being thwarted.

Leniency in matters involving unnatural offences is not only undesirable, but also against public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy”.

Background: On 30-03-2022, victim child aged 11 years had gone to the house of accused to fetch milk, but the accused committed unnatural offence with the said child/victim. The accused was arrested on 30-03-2022 and is languishing in jail since then. The Trial Court has already rejected his bail application vide order dated 12-10-2022.

Court’s Assessment: While perusing the application, the Court observed that there is a prima-facie or reasonable ground to believe that the petitioner/accused has committed the offence of rape upon the victim. It was further stated that the nature and gravity of charge is very serious, as the accused committed unnatural offence upon the victim. “The lustful designs of the accused crossed all borders of indecency as he committed penetrative sexual assault upon minor victim unmindful of the shattering mental trauma the later suffered, which not only caused physical injuries upon the possession of victim, but more indelibly left a scar on his dignity, honour and reputation in the society”.

The Court pointed out that since the trial is incomplete and statement of the child has not been recorded yet, therefore granting bail to the accused may shake the confidence of the people whose interests are involved in the case.

Giving the gravity of the crime committed in the instant case a thought, the Court stated that gravity of crime is to be necessarily assessed from the nature of crime. “A crime may be grave, but the nature of the crime may not be so grave. Similarly, a crime may not be so grave, but the nature of the crime may be very grave”. Ordinarily, the offence of unnatural offence is grave by its nature.

It was further stated that where the punishment provided for an offence is severe in nature, there is every danger of the accused absconding or fleeing from justice if released on bail. “More severe the punishment is, more are the chances of the accused to abscond during to the trial or flee from justice if released on bail. There is every danger that the petitioner/accused will abscond or flee during trial if enlarged on bail”.

The Court also rejected the accused’s contention of concoction of a false case stating that no self-respecting person as the victim child in the case in hand would normally concoct a story of unnatural offence committed against him just to falsely implicate a person. The accused therefore does not enjoy any special status in the society so as to succeed in his case for grant of bail.

The Court stated that a balance has to be struck between the “right to individual liberty” and “interest of the society” and no right can be absolute and reasonable restriction can be placed on it. The grant of bail depends upon facts and circumstances of each case, and it cannot be said, that there is absolute rule. “Courts cannot lose sight of the fact that crime of violence against minor children are on increase and therefore the perpetrators of the crime must be dealt with iron hands”.

The Court thus rejected the bail application and directed the Trial Court is directed to conclude the trial as expeditiously as possible.

[Rahul Kumar v. UT of J&K, 2023 SCC OnLine J&K 323, decided on 29-05-2023]

*Order delivered by Justice Mohan Lal

Advocates who appeared in this case :

Accused/petitioner- Sunil Sethi, Sr. Advocate with Ankesh Chandel, Advocate;

Respondent: Pawan Dev Singh, Dy. AG for R-1&2 and Anil Gupta, Advocate for R-3.

Buy Penal Code, 1860  published by EBC  HERE



Buy Protection of Children from Sexual Offences Act, 2012  HERE


Must Watch

maintenance to second wife

bail in false pretext of marriage

right to procreate of convict

Criminology, Penology and Victimology book release

Join the discussion

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.