A single judge bench consisting of Hon’ble Justice Sanjay Dhar of Jammu and Kashmir High Court, in the case of Badri Nath v. Union Territory of J & K th. Police Station Bari Brahamana (on 11.12.2020), held that the minor rape victims are entitled to receive most appropriate information of the proceedings which would include the status of the accused including his/her bail, temporary release, parole or pardon, escape, absconding from justice or death.
Factual Background
In February 2020, an order was issued by Child Welfare Committee, Samba to Police wherein it was alleged that one of its Members was approached by a girl via Child line, Jammu and informed her (the member) that she was molested by her neighbourer and requested for immediate redressal of her grievance.
The concerned Member constituted a team to contact the child. The victim and her mother appeared before the Child Welfare Committee and she made a statement before the Committee wherein it was stated that at about 9 pm, the petitioner herein/ accused (victim’s neighbourer), came to her house and started talking vulgar and irrelevant things to her, while her mother was lying admitted in the hospital and her younger brother was sleeping.
He rubbed his hand on her mouth, pulled her hand, asked her to sit in his lap, touched her private parts and asked her to accompany him to the roof for making love. The victim thus locked herself in a room and called son of the accused but instead of helping her, he threatened and abused her and since her family wasn’t around, she got frightened.
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Upon receiving the order from the Committee, police registered an FIR and started investigation. The victim’s statement u/s 164 Cr.PC was recorded and after investigation of the case, offences u/Ss. 354-A/452/506 IPC and 8 of POCSO Act were found established and he was arrested.
On account of Covid-19, the petitioner was granted interim bail for one month by trial Court and the same was extended from time to time up to 09.07.2020. On 08.07.2020, the petitioner moved an application for seeking extension of interim bail, but it was declined by the trial Court and he was directed to surrender before the Jail authorities, where after he surrendered and is in custody since then. After filing of charge sheet before trial Court (18.07.2020), petitioner again moved application for grant of bail, but it was dismissed.
Thus, by the instant petition, the petitioner sought regular bail.
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Case of the Petitioner
It was submitted that the petitioner was entitled to get regular bail on the grounds that:
(a) trial Court was not justified in rejecting his bail application when he was already on interim bail and there was nothing on record before Court to show that he had misused the concession of bail; (b) petitioner was not involved in a case which entails severe punishment as the offence for which he has been booked carries a maximum punishment up to 7 years and he was entitled to grant of bail as the investigation was complete and challan was presented before the trial Court; & (c) petitioner would not flee from justice and he would abide by all the terms and conditions that may be imposed by this Court in case he is admitted to bail.
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Case of the Respondent
The respondent resisted the bail application by filing objections wherein the respondent reiterated the allegations made in the charge sheet. It was contended that: (a) petitioner was involved in a serious offence which he has committed against a child, as such, he did not deserve the concession of bail; (b) order of the trial Court rejecting the bail application of the petitioner was based on cogent and sound reasoning; & (c) petitioner was not entitled to bail and he filed successive bail applications without any change of circumstances and hence present application was not maintainable.
Reasoning and Decision of the Court
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Whether regular bail plea (successive bail application) was maintainable or not?
[Yes, maintainable] The Court observed that the law governing this issue was clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application. In this behalf, Court cited Supreme Court case Gurcharan Singh & Ors vs. State (Delhi Administration). Thus, the Court held that rejection of a bail application by Sessions Court did not operate as a bar for the High Court in entertaining a similar application u/s 439 Cr.P.C on the same facts and for the same offence.
The Court then proceeded to restate the settled legal position about the matters to be considered for deciding bail application. These were as under:
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(a) Whether reasonable grounds exist to prove- accused committed offence; (b) nature & gravity of charge; (c) severity of punishment in event of conviction; (d) Danger of accused absconding after release on bail (e) character, behaviour, means, position of accused; (f) likelihood of offence being repeated; (g) reasonable apprehension of witnesses being tampered with; & (h) danger of justice being thwarted by grant of bail.
Observations with respect POCSO Act
The Court observed that for offences punishable under a special enactment, like POCSO Act, something more is required to be kept in mind in view of special provisions contained in the act. Section 31 makes provisions of Cr.P.C. (including that of bail and bonds) applicable to the proceedings before a Special Court. It further provides that the Special Court shall be deemed to be a Court of Sessions.
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Thus, the Court concluded that: “it is clear that the provisions of Cr.P.C including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act.
The present application is, required to be dealt with by this Court in accordance with the provisions contained in Section 439 Cr.P.C. The other provisions of the POCSO Act, which are also required to be kept in mind, are Sections 29 (Presumption as to certain offences) and 30 (Presumption of culpable mental state)."
Elaborating on mandate of Sections 29 and 30, the Court observed:
“Section 29 quoted above raises a presumption of commission of an offence under Sections 3,5,7 and 9 of the POCSO Act against a person who is prosecuted for commission of the said offence, unless contrary is proved. Similarly, Section 30 quoted above raises a presumption with regard to existence of culpable mental state against an accused in prosecution of any offence under the Act which requires a culpable mental state on the part of the accused. Again, the accused in such a case has been given a right to prove the fact that he had no such mental state.”
The Court noted that the trial Court, while rejecting the petitioner’s bail application of the petitioner, relied upon Section 29 of the POCSO Act to observe that the culpability of offences under the said Act has a presumption attached to it.
It was further observed that: it was true that petitioner was booked for offences carrying punishment less than 7 years, but that was only one of the considerations for grant of bail, while the other considerations like nature of offence, position of accused w.r.t. victim & witnesses & public interest were some of the other considerations which were required to be considered.
Observations on involvement of the accused
The Court noted that there were material on record to prima facie show the involvement of the petitioner in the alleged crime and in view of Section 29 of the POCSO Act and the material collected by the investigating agency during the investigation of the case, the presumption of innocence is no longer available to the petitioner.
Observations on gravity of offence (in backdrop of age of parties)
The Court observed that petitioner (aged 57 years) was victim’s (aged 12 years) neighbourer ans she treated him as her uncle. There was fiduciary relationship between the petitioner and the victim, who would repose trust and confidence in him being her neighbourer.
“By indulging in abhorrent behaviour with the child victim, the petitioner has shaken this trust and confidence and brought bad name to the relationship of a child with her neighbourer who is as good as her father. It is not an ordinary offence where an accused has tried to molest a major woman having no acquaintance with her. It is a case where the petitioner has committed sexual assault upon a girl child who is about 1/5th of his age. The gap in age of the petitioner and the victim makes his alleged act more heinous and it shows an element of perversion in the offence alleged. The position of the petitioner qua the victim makes the offence more heinous.”
Bail application- rejected
The Court was apprised of the fact that victim’s father was employed in Armed Forces and posted in Chennai, while her mother who was hospitalized- died and the victim was wholly dependent on her maternal uncle and was in a state of shock. Thus, the Court rightly observed that the petitioner being victim’s neighbour, exertion of pressure upon her by the petitioner so as to coerce her not to depose against him before trial Court could not be ruled out.
"Therefore, granting bail at this stage, at least till victim’s statement was recorded before the trial Court, would thwart the course of justice.”
Notice to informant in bail plea (in POCSO matters)- is obligatory
Before parting, the Court made sure to state:
“had this Court not issued notice to the victim and the Member of the Child Welfare Committee, Samba, certain facts like the death of mother of victim and the present mental state of the victim would not have come to light. These facts have been found to be of great relevance for consideration of the instant bail application.”
Court further observed, with respect to Section 439 (1-A) Cr.P.C., that:
“While Section 439 (1-A) incorporated in the Cr.P.C (2018 Amendment) makes the presence of the informant or any other person authorised by him obligatory at the time of hearing of application for bail to a person accused of offences under Section 376(3) or 376 AB or Section 376DA or Section 376DB of IPC, but the offences under POCSO Act are not included in the said provision. Thus, notice to informant in an application for grant of bail to an accused involved in offences mentioned in Section 439 (1-A) Cr.P.C is obligatory, but the law does not provide for issuance of notice to the victim of an offence under POCSO Act at the time of consideration of bail application of the accused which, I think, is needed keeping in view the nature and gravity of offences under the POCSO Act.”
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The Court further made note of Model Guidelines issued by Ministry of Women and Child Development, Government of India, u/s Section 39 of POCSO Act and concluded that:
“From a perusal of aforesaid guidelines, it is clear that the victims are entitled to receive most appropriate information of the proceedings which would include the status of the accused including his/her bail, temporary release, parole or pardon, escape, absconding from justice or death.”
In order to give a mandatory colour to the aforesaid guidelines, the Court held:
“it is necessary to issue a Circular to all the Special Courts constituted under the POCSO Act within the Union Territories of Jammu and Kashmir and Ladakh, directing them to ensure that the victim/Child Welfare Committee is informed about the proceedings in bail petitions of the persons accused of having committed offences under the aforesaid Act by issuing prior notice to them. The Registrar Judicial is directed to place this judgment before Hon’ble the Chief Justice (Acting) with a request to consider the matter regarding issuance of a Circular in the above terms. Disposed of along with connected applications.”
Case Details
Case Name: Badri Nath v. Union Territory of J&K th. Police Station Bari Brahamana
Case No.: Bail App No. 139/2020, CrlM Nos. 1444/2020 & 1445/2020
Bench: Hon’ble Justice Sanjay Dhar
Date of Decision: 11 December 2020
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