SRINAGAR: The High Court of Jammu and Kashmir and Ladakh has granted bail to a Bemina man accused in a POCSO case after noting that he had remained in custody for more than four years without conclusion of the trial, while directing that stringent safeguards be imposed to protect the prosecutrix and prosecution witnesses.
Justice M A Chowdhary allowed the bail application of Tanveer Hussain Dar in connection with FIR No. 54/2022 registered at Police Station Bemina, Srinagar, under Sections 363, 376 and 109 of the IPC read with Section 4 of the Protection of Children from Sexual Offences Act (POCSO). The case is pending before the Fast Track Court of POCSO Cases, Srinagar.
The court pronounced the judgment on October 1, 2026, after reserving it on September 25.
The court said that while the allegations were serious and the POCSO Act provided a special statutory framework for protecting children, “seriousness of the accusation, by itself, cannot be the sole determinative factor in deciding a bail application.”
It observed that the nature and gravity of the allegations had to be balanced against the constitutional requirement that an undertrial should not remain incarcerated for an unduly long period when the trial itself was not moving towards conclusion.
Dar had approached the High Court under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the trial court’s December 23, 2025 order rejecting his bail plea.
His counsel, Danish Majid Dar, assisted by Ahra Syed, argued that the accused had been in custody for more than four years and that the prolonged incarceration, without conclusion of the trial, infringed his right to a fair and expeditious trial under Article 21 of the Constitution.
The defence also questioned the manner in which statements had been recorded during investigation, pointed to alleged improvements and variations in the prosecutrix’s subsequent version, and argued that material collected during investigation indicated that the accused and the prosecutrix were acquainted and had been involved in an adolescent relationship. The defence also relied on the absence of an FSL or expert opinion and the fact that the trial had not concluded.
The respondents opposed the bail plea. Senior Additional Advocate General Mohsin Qadri, assisted by Assistant Counsel Nadiya Abdullah, argued that the prosecutrix’s statement under Section 164 CrPC had been recorded at the earliest opportunity and that the absence of a Section 161 statement could not by itself operate in the accused’s favour.
The prosecution also relied on Sections 29 and 30 of the POCSO Act, arguing that the statutory presumptions applied against the accused and that the allegations involved a child and offences of a grave nature. It maintained that the seriousness of POCSO offences and the possibility of prejudice to the prosecution warranted rejection of bail.
Counsel for the complainant, Adv Asifa Padroo, Legal Aid Panel Counsel, assisted by Adv Tabinda Yousuf, also opposed the bail plea, arguing that no legally recognisable consent could be attributed to a child and that the statutory presumption under the POCSO Act could not be diluted by describing the relationship as a “love affair”.
The High Court, however, held that the statutory presumptions under Sections 29 and 30 of the POCSO Act did not create an absolute prohibition on granting bail. Referring to its August 18, 2026 judgment in Mohammad Ashraf Sheikh v. UT of J&K & Anr., the court said that each bail application had to be examined on its own facts and circumstances.
The court also made it clear that it was not treating the alleged relationship as a defence to the POCSO case.
“There can be no dispute that where the victim was below eighteen years of age, her consent has no legal validity for the purpose of determining criminal culpability under the POCSO Act,” the court said.
At the same time, it held that the fact that the parties were acquainted, if borne out by the investigation material, could be considered in a limited manner while examining the question of custody pending trial, without giving legal validity to the alleged consent or prejudging the merits of the case.
On the medical material, the court said that the opinion that the prosecutrix was sexually active or had been in a relationship with the applicant could not, at the bail stage, be treated as determinative of the prosecution case. It also said that the absence of an FSL report or other expert opinion could be noticed at the bail stage, but that it would be inappropriate to draw a final conclusion about its impact on the prosecution case.
The court stressed that a bail proceeding could not be converted into a mini-trial. It said the rival claims concerning alleged improvements in statements, the circumstances of the relationship, the medical statement and the absence of scientific evidence would ultimately have to be examined by the trial court on the basis of evidence led before it.
On the question of prolonged custody, the court relied on the constitutional guarantee of speedy trial and noted that the prosecution had not demonstrated that the trial was likely to conclude within a reasonably proximate period.
“The fact that the allegation is serious cannot furnish a justification for keeping an accused incarcerated indefinitely as an under-trial,” the court said.
The court further observed that the prosecution had not placed any specific material before it showing that the accused, if released on stringent conditions, was likely to abscond, threaten or influence the prosecutrix or other witnesses, tamper with evidence or repeat the alleged offence.
While allowing the bail plea, the court directed Dar to furnish a personal bond of Rs 50,000 with two sureties of the same amount to the satisfaction of the trial court.
The conditions include mandatory appearance before the trial court on every date of hearing unless exempted, a restriction on leaving Jammu and Kashmir without prior permission, and a prohibition on directly or indirectly contacting, approaching, threatening, inducing or attempting to influence the prosecutrix, her family members or any prosecution witness.
He has also been directed not to tamper with prosecution evidence or commit a similar offence. The prosecution has been given liberty to seek cancellation of bail in case of violation of the conditions.
The High Court clarified that its observations were “purely prima facie in nature” and confined to adjudication of the bail application. It directed that the trial court decide the case independently on the evidence led before it, uninfluenced by the observations made in the High Court order.
