Factual Background 

In the instant matter of Ravi Kumar v. Union Territory of J&K Sections 363 and 109 of the Indian Penal Code (IPC), as well as Section 8 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), were the subject of the accused’s bail petition.The accused had submitted a bail application to the Trial Court, but it was denied by an order dated June 28, 2022, on the grounds that the prosecutrix’s statement had not yet been recorded. The bail application was then dismissed, allowing the accused to reapply to the Trial Court. The accused then went before the High Court. The High Court had also given the respondents instructions to take all necessary actions to ensure that the prosecutrix would appear before the Trial Court on the next date of hearing and to provide all necessary assistance in recording the prosecutrix’s statement. Following the aforementioned developments, the accused reapplied for bail on December 21, 2022, but the Trial Court once again denied it due to the failure to record the victim’s statement.

Analysis of court Order 

The Jammu and Kashmir High Court’s single-judge panel, led by Justice Sanjay Dhar, ruled that the claim that the victim could not be located despite best attempts could not negate the accused’s legal entitlement to bail under Section 436-A of the CrPC.

The accused has been in detention since April 2022, according to the court. The Court read Section 436-A of the Criminal Procedure Code, which specifies the maximum amount of time an under-trial prisoner may be kept. An undertrial prisoner is not allowed to be held for longer than half of the maximum sentence allowed for the crime for which he was arrested, and upon the expiration of that period, the court must release him on a personal bond, either with or without sureties. The prosecutrix could not be located despite the Investigating Agency’s best efforts, and as a result, the prosecution failed to present her before the Trial Court, the Court further noted.

The Court concluded that the prosecutrix’s inability to be located and brought before the Trial Court cannot serve as justification for disallowing the accused of the statutory right that has accrued as a result of serving more than half of the maximum sentence allowed for the offence under Section 8 of the POCSO Act.As a result, the petition was granted by the court, and the accused was given conditional bail.