Bail Cannot Be Denied to Satisfy Society’s Conscience
The High Court of Jammu and Kashmir and Ladakh recently emphasized that denying bail to an accused merely to “teach a lesson” or to appease the societal conscience is against legal principles. Justice Sanjay Dhar underscored that such actions would equate to pre-trial punishment, which is impermissible under the law, in the case of Nisar Ahmed Joo v. UT of J&K.
Case Overview
The court’s remarks came while granting bail to a man accused of a serious crime involving the alleged rape of a girl approximately 16-17 years old in 2024. The court observed that the accusations against the accused, Nisar Ahmad Joo, were highly suspect, thereby justifying the bail. Justice Dhar stated, “Merely because the petitioner is facing trial for heinous offences which entail punishment extending up to life imprisonment, is not a good enough reason to deny concession of bail to him when his, prima facie, involvement in the alleged crime is highly doubtful.”
Legal Arguments and Court’s Findings
Ahmad was charged under Sections 137(2) (kidnapping) and 64 (rape) of the Bharatiya Nyaya Sanhita (BNS) and Section 3 (penetrative sexual assault) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The case originated from a missing complaint filed by the girl’s father on November 11, 2024, with the girl being found on November 17, 2024. Initially, the girl claimed she was sexually assaulted by multiple persons. However, during the trial, she recanted her allegations, expressing a desire to not pursue the case.
Inconsistencies and Bail Approval
The trial court previously denied Ahmad’s bail plea, citing the victim’s support for the prosecution’s case. Nonetheless, Ahmad’s defense highlighted discrepancies in the victim’s statements, arguing that she had revised her testimony significantly. They also pointed out that the scientific evidence did not corroborate the allegations against Ahmad. The High Court found merit in these arguments, noting the inconsistencies and supporting medical evidence, which effectively rebutted the statutory presumption of his guilt under the POCSO Act.
Conditional Bail and Legal Representation
The High Court acknowledged that Ahmad had been incarcerated for approximately a year and granted him bail under specific conditions. He is required to attend all trial court hearings, seek permission before leaving Jammu and Kashmir, and avoid influencing or intimidating witnesses. The petitioner was represented by advocates Danish Majeed, Monisa Manzoor, and Mehjabeena Gulzar, while Senior Additional Advocate General Mohsin Qadri, assisted by Mohammad Younis, represented the Union Territory.
