The High Court of Jammu & Kashmir and Ladakh recently ruled that a victim’s refusal to testify in court under Protection of Children from Sexual Offences (POCSO) Act was sufficient to grant bail to the accused.
The Single Judge Bench of Justice Sanjay Dhar held, “Consideration of the bail petition could not be postponed indefinitely simply because the victim refused to appear in court.”
“It is clear that an under-trial 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 said.
The present court was hearing a bail application filed by the petitioner/accused for the offences committed under sections 363 and 109 IPC, section 8 of POCSO.
He was arrested on April 24, 2020, and charges were framed against him on September 13, 2021. But to date, the trial of the case had not been completed.
The trial court rejected his bail application in accordance with an order dated June 28, 2022, on the grounds that the prosecutrix’s statement had yet to be recorded.
He again filed an application before the present court for bail, which was also denied on September 30, 2022, thereby allowing the petitioner to again file an application for bail before the trial court.
The present court also directed the respondents to take all necessary means to ensure the presence of before the trial court on the next date of hearing or on any subsequent hearings.
On December 21, 2022, petitioner again moved the trial court and filed the bail application but the same had been dismissed on the ground that only three witnesses had been examined by the prosecution and that the statement of the victim is yet to be recorded.
After reviewing the case, the High Court determined that the accused could not be held for more than one-half of the maximum penalty time of imprisonment specified.
It highlighted, “He is facing trial for offence under section 8 of the POCSO Act. The said offence carries maximum punishment of imprisonment of five years. As already noted, the petitioner has been in custody in the instant case since 24.04.2020, meaning thereby that he has spent more than three years in custody as on date. 7. Section 436-A of the Code of Criminal Procedure provides for maximum period for which an undertrial prisoner can be detained.”
Taking into account the submission that the investigative agency was unable to locate the victim, the court stated that this could not be used to deny the accused’s statutory right.
Accordingly, the court granted the bail on personal bond in the amount of Rs.50,000/ with one surety of the like amount to the satisfaction of the trial court.