Srinagar, August 30, KDC: The High Court of Jammu & Kashmir and Ladakh has dismissed the bail application of four men accused in the February 2022 abduction and gang-rape of a 15-year-old girl in the forests of Tangmarg, holding that prolonged incarceration alone cannot serve as a “mathematical command” to grant bail in heinous POCSO offences, particularly when the trial is progressing at a “phenomenal pace.”
Rejecting the joint bail application, a Bench of Justice M. A. Chowdhary ruled that given the statutory presumption of guilt under the POCSO Act, the gravity of the punishment providing imprisonment for the remainder of natural life, and the imminent conclusion of the trial, enlarging the accused on bail would carry a serious flight risk and danger of evidence tampering.
The bail plea was moved under Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) by Irqan Ahmad Dar, Basit Ali Dar, Irfan Ahmad Najar, and Firdous Ahmad Ahanger, who have been lodged in judicial custody since February 15, 2022.
The case originates from FIR No. 02/2022 registered at Police Station Bemina on February 11, 2022, under Sections 363 (kidnapping), 376-DA (gang-rape of a girl under 16 years of age), and 109 of the Indian Penal Code (IPC), along with Sections 3, 4, 6, 16, and 17 of the Protection of Children from Sexual Offences (POCSO) Act.
According to prosecution records, the complainant reported that his 15-year-old daughter went missing after leaving her residence to buy candies. During investigation, the minor was recovered the next day from the Tourist Reception Centre (TRC), Srinagar.
In her statement recorded before the magistrate, the victim stated that she was abducted near JVC Srinagar in a Tata Sumo vehicle by four persons, driven to the Tangmarg forests, and subjected to gang-rape. Chargesheet was subsequently presented before the Fast Track Special Court (POCSO), Srinagar, which rejected their bail plea in April 2024.
Appearing for the accused, Advocate Danish Majid Dar argued that the petitioners had spent over four years in continuous pre-trial detention. Relying on Supreme Court rulings in K. A. Najeeb and Tasleem Ahmad, counsel contended that prolonged incarceration violates the fundamental right to personal liberty, especially since the victim and key witnesses had already deposed.
Opposing the plea, Senior Additional Advocate General Mohsin S. Qadri, assisted by Advocate Haris Khan, submitted that the trial was moving swiftly with 22 out of 28 listed prosecution witnesses already examined. He argued that medical, forensic, and digital evidence firmly corroborated the victim’s deposition, triggering the statutory presumption under Section 29 and Section 30 of the POCSO Act, which the defence had failed to rebut.
Evaluating the legal matrix, Justice Chowdhary observed that while constitutional courts can grant bail for prolonged incarceration, detention duration cannot override the gravity of heinous sexual offences where the trial is actively advancing towards conclusion.
“Perusal of the trial court record would show that prosecution has, so far, examined 22 out of the 28 listed prosecution witnesses, which shows that the trial is running at a phenomenal pace. The contention of the learned counsel for the petitioners that during the trial of the case, the prosecution case has been weakened, however, no copy of the statement of any of the witnesses has been placed so as to look into this aspect for limited purpose of disposal of bail application. The heinous offence of gang rape having been committed upon a 15 year old girl by four of the applicants and there being statutory presumption for their culpability under POCSO Act with the same not being repudiated, it will not in the interest of justice to grant them bail,” the Court observed.
The Bench said that the severity of the prescribed sentence, which extends to life imprisonment for the remainder of natural life under Section 376-DA IPC, heightens the risk of accused evading justice in the final stages of trial.
“Since the trial of the case is almost complete, as only a couple of witnesses are remained to be examined, it will be in the interest of justice that the petitioners face the trial, while in custody as granting of bail in their favour in view of prescribed punishment, shall have a flight risk as the petitioners may evade the trial and may also tamper with the prosecution evidence,” Justice Chowdhary held while dismissing the petition. (KDC)
