Srinagar: A fast track court designated under POSCO Act on Monday granted bail to a Srinagar resident after court noted that the victim has not stated anything incriminating against the accused.
Presiding officer Aarti Mohan recorded that the allegations against the accused although are heinous and non-bailable, however, the perusal of the statement of the victim under section 164 Criminal procedure code reveals that she has not stated anything incriminating against the accused person which would substantiate allegations alleged against the accused.
Mohan said it also transpires from the statement of the victim that she is in a romantic relationship with the accused and had run away with him out of her own will. The victim as well as her mother also appeared before this court and during the interaction have submitted that they have no objection in case the accused is admitted to bail.
Court noted that although in POCSO cases, there is presumption which operates against the accused under section 29 and 30 of POCSO Act, however the accused can rebut the aforementioned presumption by pointing out lacunas in prosecution case.
Court while giving reference that in the case of Badri Nath VS UT of J&K, the High Court has held that : “In the bail proceedings, even at pre-trial stage, it would be open to an accused to highlight the circumstances/material or lack of it to show to that foundational facts are not established and, in this manner, the right available to an accused under the latter part of the provision contained in section 29 of the POCSO Act would get safeguarded.”
Officer Mohan said that for the foregoing reason , I am of the considered opinion that at the time of considering the bail application of the accused, who has been booked for the offences under sections 3, 5, 7 & 9 of the POCSO Act, the presumption under Section 29 of the said Act would come into play even at pre-trial stage.
“ The accused , of course, would have a right 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.”
In the instant case court also said in view of the statement of the victim recorded under 164 Cr.P.C, the aforesaid presumption stand rebutted and accused would be entitled to concession of bail.
“Accordingly, the accused is admitted to bail is subject to furnishing of bail bond and personal bond to the tune of Rs. 50000/- each on following conditions:
“That he shall appear before the investigating agency and court as and when directed.”
”That he shall not try to hamper or tamper with the prosecution evidence in any manner and that he shall not leave the territorial jurisdiction of this court without prior permission.”