HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Bail App No. 112/2023 Pronounced on : 09.05.2025 Aaqib Hussain …. Petitioner/Appellant(s) Through:- Mr. F. S. Butt, Advocate V/s Union Territory of J&K …..Respondent(s) Through:- Mr. Mohd. Irfan, GA CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE ORDER 01. The petitioner has filed the present application under section 438 Cr.P.C. for grant of bail in FIR No. 60 of 2023 dated 30th of March 2023, registered by Police Station Kishtwar for the offences under section 376 IPC read with section 4 of POCSO Act. 02. The contention of the petitioner is that a false and frivolous FIR No. 60 of 2023 dated 30th of March 2023 has been registered by the Police Station Kishtwar for the offences under section 376 IPC and 4 of POCSO Act. The FIR has been registered with mala fide intention by the father of the prosecutrix to wreck vengeance against the petitioner’s family. It is submitted that the paternal aunt of the petitioner was married to one Tariq Ahmed, about 13-14 years ago, but recently Tariq Ahmed had married again with one Nahida Begum, who is paternal aunt of the prosecutrix and real sister of the complainant-Mehraj Din. This marriage has become the cause of enmity between two families and led to false allegations against the petitioners. 2 03. The incident is alleged to have occurred on the evening of 27th of March 2023 and the registration of FIR is delayed by three days. This delay has been justified on the ground that the community had requested for settlement of the issue, therefore, there was delay in reporting the matter to the Police. The petitioner is a young boy of 22 years and is pursuing his graduation and is not involved in the incident which has been alleged only to wreck vengeance. The applicant apprehends that he will be arrested and submits that he has deep roots in this society and will not jump over bail or with the prosecution evidence. 04. The respondent in his reply has submitted that the act the petitioner committing offence with a minor, who is 15 years of age. The petitioner has absconded from the date of the order and there is no prospect of arrest of the accused. The learned Principal Sessions Judge, Kishtwar has formally declared the accused to be absconding by way of an order dated 31.01.2023. The statement of witnesses recorded before the Trial Court clearly establish a case under Section 376 IPC and section 4 of the POCSO Act, such as established by the charge-sheet presented before the Learned Magistrate. 05. As per the story of prosecution, on 30.03.2023, a written application was received on behalf of the complainant-Mehraj Din stating that the minor daughter of the complainant had gone to get milk when the petitioner caught her and dragged her to the fields where he outraged her modesty when she raised her voice, he threatened her. The minor daughter narrated this incident to her aunt when the petitioner forcible raped her in the nearby field. 3 06. FIR No. 60 of 2023 under section 376 IPC and Section 4 of the POCSO Act was registered at Police Station Station Kishtwar. During the course of enquiry, the Investigating Officer visited the spot and after enquiry, produced the victim girl before the Child Welfare Committee, who conducted the medical examination of the victim. The Investigating Officer enquired the Headmaster Government, MS Pulekha Pasu about the date of birth certificate of the of the minor and as per the date of birth certificate issued, the date of birth of victim is 23rd of October 2007 and on the day of the occurrence and registration of FIR, her age was 15 years and she was a minor at that time. The IO recorded the statement of the victim girl under section 164 Cr,P.C., before the Juvenile Justice Board, Kathua (JJB) Kathua. 07. The POCSO Act was introduced as the child victims were not getting adequate protection and to safeguard the interests of the child victim. The Act was brought out which operate in a manner that bent interest and well being of child be taken into consideration. 08. The Hon’ble Supreme Court has elaborated on the reason for bringing out the POCSO Act in Eera through Dr. Manjula Krippendorf V. State of NCT of Delhi reported as (2017) 15 SCC 13. The relevant portion of the said judgment reads as under:- “20. The purpose of referring to the Statement of Objects and Reasons and the Preamble of the POCSO Act is to appreciate that the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the Preamble, it is manifest that it recognises the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well-being are regarded as being of Paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual 4 exploitation and sexual abuse are heinous offences and need to be effectively addressed. The Statement of Objects and Reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing child- friendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act.” 09. The allegations against the petitioner that he has committed this heinous act with 15 years old child. The trauma suffered by the child has long lasting effects and this could hinder the growth of the child. The respondent No. 2 has submitted that the petitioner has fled and is deliberately hiding to evade the judicial process. The victim harbours a fear for her safety. The petitioner is involved in a heinous offence and granting bail at this stage would defeat the very purpose of the trial and the object of the POCSO Act. 10. Accordingly, this Court is not inclined to grant bail to the petitioner. This bail application is rejected in the above terms. (SINDHU SHARMA) Judge JAMMU 09.05.2025 RAM MURTI Ram Murti 2025.05.13 16:08 I attest to the accuracy and integrity of this document