Pre-Trial Incarceration Cannot Be Justified Solely By Gravity Of Allegations; J&K&L High Court Grants Bail To Relatives Accused Of Abetment In POCSO Case
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice M.A. Chowdhary allowed a bail application and directed release of two co-accused relatives of the main accused in a POCSO case, subject to conditions. The case arose from allegations of kidnapping and sexual assault of a minor, with the applicants accused of providing shelter and abetment rather than committing the sexual offence. The Court granted regular bail, noting their limited role, absence of direct assault allegations, and the trial’s advanced stage.
The applicants moved a bail application under Section 483 BNSS seeking release in a case pending before the Trial Court at Samba arising out of an FIR registered at Police Station Samba for offences under Sections 363, 366, 120-B and 212 IPC read with Sections 3, 4 and 17 of the Protection of Children from Sexual Offences Act, 2012.
As per the prosecution case, the complainant reported that his minor granddaughter had gone missing and suspected that a boy had taken her away. During investigation, statements of witnesses were recorded and call detail records were obtained. It was alleged that the main accused had eloped with the minor and was provided shelter by the present applicants, who are his relatives. The minor was subsequently recovered and the main accused arrested.
During further investigation, offences under the POCSO Act were added. Some co-accused were granted bail by the trial court, whereas the applicants’ bail plea was rejected. The applicants contended that they had only provided shelter and were unaware of the minor’s age, and that several prosecution witnesses had already been examined. The State opposed bail citing the gravity of offences and apprehension of absconding.
The Court recorded, “Heard and considered.” It noted that the Apex Court in Manoj Kumar v. State of Madhya Pradesh & Anr. had granted bail where the charge sheet had been filed and custodial interrogation was not required. It further recorded that the Kerala High Court had granted bail to an applicant “who was alleged and accused to have provided shelter and not directly involved in the offence of sexual abuse.”
The Court stated, “It is now well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.”
With regard to the charges, the Court recorded, “The applicants/accused, however, have not been charged for the commission of offences punishable under Sections 3 and 4 of the POCSO Act.” It also noted, “Section 29 of POCSO Act, 2012 talks of presumption as to certain offences… the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”
Referring to the factual matrix, the Court observed, “Element of love between the applicant/accused and victim as alleged in the complaint, age of victim as 17 years, elopement, applicants being relatives of the main accused not directly involved, and are stated to have abetted sexual offences, committed by the main accused who is their relative, are factors which persuade this court to allow the application and to admit applicants/accused to bail.”
It further stated, “In the facts and circumstances of the case and considering the nature of the charges framed against the applicants in the case and their continued incarceration since their arrest, without reference to the prosecution evidence, lest it may prejudice trial of the case, this Court is of the opinion that case is made out to exercise the discretion and enlarge the applicants on regular bail.”
The Court directed, “Viewed thus, the application is allowed and the applicants/accused are admitted to bail subject to the following conditions that they shall: furnish bail and personal bonds to the tune of Rs.50,000/- each to the satisfaction of the trial court; furnish their permanent residential address to the trial court; not associate themselves with the prosecution witnesses or tamper with the prosecution evidence, in any manner, whatsoever; and attend the hearings of their case on each and every date of hearing without fail.”
“In case of contravention of any of the aforesaid conditions, the prosecution or the complainant can approach the trial court, seeking cancellation of the bail. The Bail Application is thus disposed of as ‘allowed’, alongwith pending application(s).”
Advocates Representing the Parties
For the Petitioners: Mr. Mohd. Aleem Beg, Advocate
For the Respondents: Mr. Vishal Bharti, Dy. AG; Respondent No.3 in person
Case Title: Joginder Singh & Anr. v. Union Territory of J&K & Ors.
Neutral Citation: 2026: JKLHC-JMU:446
Case Number: Bail App No.139/2025
Bench: Justice M.A. Chowdhary
