Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar has declined to grant bail to accused persons in a sexual offence case, holding that delays in concluding trial proceedings cannot automatically work to their advantage. The Court clarified that the two-month timeline prescribed under the proviso to Section 309 of the Code of Criminal Procedure for trials involving specified rape offences is intended to secure prompt justice for victims, not to create a default entitlement to bail. The case concerns allegations of sexual assault against a minor girl, with the prosecution asserting coercion and exploitation by the accused. The Court held that the legislative mandate for expeditious trials is victim-centric and cannot be invoked to seek release solely on account of procedural delay.

The bail application arose from allegations of gang rape of a minor girl, registered under Sections 376D and 506 of the Indian Penal Code and Sections 5(g)/6 of the Protection of Children from Sexual Offences Act. The prosecution case originated from a complaint lodged by the victim’s father, alleging that the minor was threatened with circulation of an alleged video and coerced into meeting the accused, where sexual assault was allegedly committed by both petitioners.

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During investigation, statements of the victim and her minor sister were recorded under Section 164 of the Code of Criminal Procedure, mobile phones of the accused were seized for forensic examination, and medical examination of the victim was conducted. Upon completion of investigation, a chargesheet was filed and charges were framed. The petitioners sought bail primarily on the ground that the trial had not concluded within the timeline prescribed under the proviso to Section 309 CrPC. They also questioned the jurisdiction of the trial court as a Special Court under the POCSO Act and alleged contradictions in the victim’s testimony.

The prosecution opposed bail, citing the gravity of allegations, progress of trial, and potential impact on the minor victim if bail were granted.

The Court first addressed the contention regarding lack of jurisdiction of the Principal Sessions Judge, Kulgam, to try offences under the POCSO Act and recorded that “in terms of notification issued by the Government on 25th June, 2018, the Principal Sessions Judges in every District of Jammu and Kashmir have been designated as Special Courts to try the offences under POCSO Act.” It further observed that “the Public Prosecutors appointed for aforesaid Courts have been appointed as Special Public Prosecutors in terms of Section 32 of the POCSO Act.”

On the plea that non-completion of trial within two months under the proviso to Section 309 CrPC entitled the accused to bail, the Court stated that “there is no such provision made in Section 309 of the Cr. P. C.” It clarified that while Section 167 CrPC expressly provides for mandatory bail on default, “the proviso to Section 309 only makes it mandatory for the trial court to complete the trial… and the default in adhering to the said deadline would not necessarily lead to enlargement of accused on bail.”

Relying on precedent, the Court recorded that timelines under POCSO and CrPC are “for the benefit of the child victim and is not to be considered as an additional clause for the purpose of granting bail to the alleged perpetrator.” It further noted that allowing bail solely on delay would “go against the interest of the child victim.”

On merits, the Court observed that “the statement of the victim recorded during trial… does appear that she has prima facie supported the prosecution case.” It also noted that the sister of the victim, an eyewitness, had similarly supported the prosecution. Referring to Sections 29 and 30 of the POCSO Act, the Court recorded that “it has to be presumed that the petitioners have committed the said offence unless it is shown by them… that such presumption gets rebutted.”

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Considering the age of the victim and seriousness of allegations, the Court stated that “it is not a case of teen age love but it is a case where grownup men have molested a girl aged about 13 years.” The Court also noted that the trial was progressing and that “it is not a case where the petitioners have remained incarcerated for a long period of time on account of delay in progress of trial.”

The Court observed: “The intention of the legislature in providing for swifter trial of such offences is to ensure speedy justice to the victims of these crimes. This mandate given by the legislature cannot enure to the benefit of the accused”

The Court directed: “For the foregoing reasons, I do not find any merit in this petition. The same is dismissed accordingly.”

Advocates Representing the Parties

For the Petitioners: Mr. S. T. Hussain, Senior Advocate, with Ms. Nida Nazir, Advocate
For the Respondents: Mr. Zahid Qais Noor, Government Advocate; Mr. Ilyas Nazir Laway, Government Advocate

Case Title: Yasir Amin Khanday and Another v. UT of J&K
Case Number: Bail App No. 60/2025
Bench: Justice Sanjay Dhar