GHULAM NABI GANIE V. UNION TERRITORY OF J&K & ANR. BAIL APP NO.231/2025:

DATE: 26/12/2025

COURT: High Court of Jammu, Kashmir and Ladakh

BENCH: Justice Sanjay Dhar

FACTS:

The petitioner, an elderly grandfather, was accused by his 19-year-old granddaughter (the prosecutrix) of committing rape and sexual exploitation multiple times, leading to the registration of FIR No. 222/2024 under Sections 64 of the Bharatiya Nyaya Sanhita (BNS) and Sections 5(n) and 6 of the Protection of Children from Sexual Offences (POCSO) Act at Police Station Anantnag. The allegations stemmed from a report lodged on December 16, 2024, where the prosecutrix claimed she had been harassed and assaulted by the petitioner from 2019 to 2021 and again in August 2024, including instances captured on video. She described a troubled family background, including confinement by her father, multiple suicide attempts, and stays in hostels and rented accommodations, during which the petitioner allegedly exploited her while providing financial support. Following investigation, which included medical examination, DNA sampling, and recording of her statement under Section 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) before a Magistrate, charges were framed against the petitioner on March 10, 2025, and the trial commenced before the Principal Sessions Judge, Anantnag.

During the trial, the prosecutrix turned hostile, denying any sexual assault by the petitioner and stating that she had lodged the complaint in anger and under external influence while she was a minor. She clarified that the petitioner had only abused her verbally and had always cared for her. In cross-examination, she admitted to providing false information and revealed involvement of Dr. Abdul Bari, a social worker with enmity toward her family, who allegedly encouraged her to file the report for personal gain, such as obtaining property. The prosecutrix's father also testified, supporting the defense by alleging that the case was fabricated due to enmity with Dr. Bari and highlighting the prosecutrix's history of running away, suicide attempts, and previously leveling false rape allegations against her step-brother, which led to his acquittal. A video shown in court depicted the petitioner in a sexual act with an unidentified girl, but the prosecutrix denied being in it or recording it, and DNA evidence did not link the petitioner to her.

ISSUES:

The primary issues in this bail application under Section 483 of the BNSS were whether the petitioner could be granted bail despite facing serious charges under the POCSO Act and BNS, given the statutory presumption of guilt under Sections 29 and 30 of the POCSO Act; whether the prosecutrix turning hostile and the lack of supporting evidence rebutted this presumption; the maintainability of a successive bail application before the High Court after rejection by the trial court; and considerations such as the petitioner's age, health, risk of tampering with evidence, and the overall merits of the prosecution's case.

JUDGEMENT WITH REASONING:

The High Court allowed the bail application, admitting the petitioner to bail subject to conditions including furnishing a personal bond of Rs. 50,000 with two sureties, appearing before the trial court on all dates, not leaving the Union Territory of Jammu & Kashmir without permission, and refraining from tampering with witnesses or evidence. The court disposed of the application, noting that its observations were confined to the bail decision and not an opinion on the case's merits.

The court first addressed the maintainability of the successive bail application, ruling that rejection by the trial court does not bar the High Court from entertaining it under Section 483 of the BNSS, citing Supreme Court precedents like Gurcharan Singh & Ors vs. State (Delhi Administration). On merits, the court applied established bail principles, including the gravity of offenses, risk of fleeing or tampering, and public interest, while noting the rebuttable presumption of guilt under Sections 29 and 30 of the POCSO Act. It emphasized that no statutory bar exists against bail in POCSO cases, and each must be evaluated on facts. The prosecutrix's trial statement, where she denied assaults, turned hostile, and withstood cross-examination, combined with her father's testimony exposing enmity with Dr. Abdul Bari as the motive, prima facie rebutted the presumption. The video evidence was deemed inconclusive as the girl was unidentifiable, the prosecutrix denied involvement, and DNA results did not implicate the petitioner. The trial court's rejection order was criticized for overlooking these developments, rendering it unsustainable.

Furthermore, the court highlighted the petitioner's over-one-year custody, the recording of key witnesses' statements (reducing tampering risks), his advanced age (over 75) and multiple ailments, and the doubtful prima facie involvement in the crime. Denying bail solely due to the heinous nature of charges would amount to pre-trial punishment, which is impermissible, especially when evidence suggested the allegations were false and motivated by external influences. The prosecutrix's history of unstable behavior, including prior false accusations against family members, further undermined the prosecution's case. Balancing these factors, the court found no compelling reason to deny bail, as the larger interests of justice favoured release under safeguards rather than prolonged incarceration to satisfy societal conscience or teach a lesson.

ANALYSIS:

This case from the High Court of Jammu & Kashmir and Ladakh (decided in December 2025 by Justice Sanjay Dhar) illustrates the delicate balance between protecting child victims under the POCSO Act and upholding the accused's right to liberty during bail proceedings. The court's decision to grant bail to a 75-year-old grandfather accused of aggravated sexual assault on his granddaughter highlights the rebuttable nature of statutory presumptions under Sections 29 and 30 of the POCSO Act. When the prosecutrix turns hostile and retracts allegations during trial citing external influence and family enmity, the presumption of guilt can be prima facie displaced, shifting focus to evidence-led assessment rather than the offense's gravity alone. This approach prevents prolonged detention from becoming pre-trial punishment, particularly for elderly accused with health issues, while ensuring safeguards like strict bail conditions mitigate risks.

The ruling underscores broader judicial trends in POCSO bail matters, where courts increasingly prioritize trial developments such as hostile witnesses, lack of corroborative evidence (e.g., inconclusive video and non-incriminating DNA), and motives like property disputes—over automatic denial based on the heinous nature of charges. By criticizing the trial court's oversight of these factors and allowing successive bail despite prior rejection, the High Court reinforces that no absolute bar exists on bail in POCSO cases, and each must be evaluated on peculiar facts. This outcome promotes fairness in a system often criticized for inconsistent bail jurisprudence under special enactments, emphasizing presumption of innocence at the pre-conviction stage without undermining victim protection.