JUDGMENT : Sanjay Dhar, J.-Petitioner has filed the instant petition under Section 439 Cr. P. C seeking bail in a case emanating from FIR No.16/2021 for offences under Section 376, 506 IPC and Section 4 of POCSO Act registered with Police Station, Qalamabad. 2. It is contended in the application that petitioner (accused No.2 in the challan) is facing trial for offences under Section 376, 506 IPC and Section 4 of POCSO Act before the Court of Principal Sessions Judge, Kupwara. According to the petitioner, statements of the prosecutrix, her mother and her sister, who happen to be the material witnesses, have been recorded and as per the evidence led by the prosecution, no case has been established against the petitioner. It is averred that the petitioner moved an application for bail before the Special Court i.e. the Court Principal Sessions Judge, Kupwara, but the same was dismissed without appreciation of material on record. It is further contended that the petitioner is in custody for the last more than six months without there being any material against him. The petitioner has undertaken to abide by all conditions that may be imposed by this Court in case he is admitted to bail. 3. The application has been resisted by the respondent by filing a reply thereto. In its reply, respondent has contended that the petitioner is involved in a very heinous crime and, as such, he is not entitled to the concession of bail. According to the respondent, there are other material witnesses who are yet to be examined and in view of the provisions of the POCSO Act, presumption of guilt operates against the petitioner unless contrary is proved. 4. I have heard learned counsel for the parties and perused the material on record including the record of the trial court. 5. The facts emerging from the charge sheet that has been laid against petitioner and co-accused before the trial court reveal that on 19.04.2021, father of the prosecutrix lodged a written report before the Police informing that his minor unmarried daughter (the prosecutrix) complained of severe pain in her abdomen and when she was taken to the hospital at Handwara, the doctor told him that the prosecutrix is pregnant. The prosecutrix was referred to LD hospital, Srinagar, for treatment where she disclosed to her father that accused Shahid Ahmad Teli has raped her. The prosecutrix was referred to LD hospital, Srinagar, for treatment where she disclosed to her father that accused Shahid Ahmad Teli has raped her. On the basis of this report police registered FIR No.16/2021 and started investigation of the case. During investigation of the case, the prosecutrix gave birth to a dead baby. The statements of witnesses under Section 161 Cr. P. C as also the statement of prosecutrix under Section 164 Cr. P. C were recorded. The date of birth of prosecutrix is stated to be 03.03.2007 and, thus, she was found to be minor at the relevant time. In her statement recorded under Section 164 Cr. P. C, the prosecutrix implicated the petitioner as well as co-accused Shahid Ahmad Teli in the alleged crime. Thus offences under Section 376, 506 IPC and Section 4 of POCSO Act were found established against the accused including the petitioner herein. 6. The trial court record shows that initially the challan was presented before the Court of Additional Sessions Judge, Kupwara, but later on, upon realising that the case is triable by a Special Court, the challan was transferred to the Court of Principal Sessions Judge, Kupwara, which is vested with the powers of a Special Judge under POCSO Act. 7. On 15.10.2021, charges for offences under Sections 376, 506 IPC and 4 of POCSO Act were framed against the petitioner and the co-accused. The statement of the prosecutrix has been recorded by the learned Special Court on 28.01.2022. It is pertinent to mention here that while the challan was pending before the Court of Additional Sessions Judge, Kupwara, statement of the prosecutrix and certain other witnesses were recorded but since the Court did not have the jurisdiction to try the case, the charges were again framed against the accused by the Special Court and the statement of the prosecutrix was recorded afresh by the said Court. So as on date, statements of prosecutrix and her father have been recorded by the Special Court. 8. The earlier bail application filed by the petitioner was dismissed by the learned Special Court vide its order dated 11.10.2021. However, after the decision of the earlier bail application, the circumstances have changed, inasmuch as statements of the prosecutrix and her father have now been recorded. 8. The earlier bail application filed by the petitioner was dismissed by the learned Special Court vide its order dated 11.10.2021. However, after the decision of the earlier bail application, the circumstances have changed, inasmuch as statements of the prosecutrix and her father have now been recorded. Even otherwise this Court being a superior Court is vested with jurisdiction to entertain the bail application even after rejection of earlier bail application by the Special Court. 9. Before coming to merits of this case, legal position about the matters to be considered for deciding a bail application are required to be noticed. These are as under: (i) Whether there is any prima facie or reasonable ground to believe that the accused has committed offence; (ii) Nature and gravity of the charge; (iii) Severity of punishment in the event of conviction; (iv) Danger of the accused absconding or fleeing after release on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with and (viii) danger of justice being thwarted by grant of bail. 10. When it comes to offences punishable under a special enactment, such as, POCSO Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment. Section 31 of the said Act makes the provisions of the Code of Criminal Procedure applicable to the proceedings before a Special Court and it provides that the provisions of the aforesaid Code including the provisions as to bail and bonds shall apply to the proceedings before a Special Court. It further provides that the Special Court shall be deemed to be a Court of Sessions. Thus, it is clear that the provisions of Cr. P. C including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act. The present application is, therefore, required to be dealt with by this Court in accordance with the provisions contained in Section 439 Cr. P. C. The other provisions of the POCSO Act, which are also required to be kept in mind, are Sections 29 and 30, which read as under: “29. The present application is, therefore, required to be dealt with by this Court in accordance with the provisions contained in Section 439 Cr. P. C. The other provisions of the POCSO Act, which are also required to be kept in mind, are Sections 29 and 30, which read as under: “29. Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.” 30. Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental stage but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability”. 11. Section 29 quoted above raises a presumption of commission of an offence under Sections 3, 5, 7 and 9 of the POCSO Act against a person who is prosecuted for commission of the said offence, unless contrary is proved. Similarly, Section 30 quoted above raises a presumption with regard to existence of culpable mental state against an accused in prosecution of any offence under the Act which requires a culpable mental state on the part of the accused. Again, the accused in such a case has been given a right to prove the fact that he had no such mental state. 12. In the light of aforesaid legal position, the material on record, particularly the statement of the prosecutrix recorded before the trial court, is required to be analysed for the limited purpose of deciding this bail application so as to ascertain as to whether statutory presumption of guilt that is operating against the petitioner, is rebutted. 12. In the light of aforesaid legal position, the material on record, particularly the statement of the prosecutrix recorded before the trial court, is required to be analysed for the limited purpose of deciding this bail application so as to ascertain as to whether statutory presumption of guilt that is operating against the petitioner, is rebutted. If the petitioner succeeds in showing to this Court that the presumption under Section 29 and 30 of the POCSO Act gets rebutted from the statement of the prosecutrix and other evidence on record, it is only then that this Court can come to a conclusion that there are reasonable grounds to believe that the accused has not committed the offence, which is one of the paramount considerations for determining the question as regards entitlement of an accused to concession of bail. With the aforesaid backdrop in mind, let us now analyse the material on record including the statement of the prosecutrix recorded during the trial of the case. 13. In her statement recorded under Section 164 Cr. P. C, the prosecutrix has not only implicated the co-accused but she has implicated the petitioner as well and claimed that she was subjected to forcible sexual assault by both the accused. In the light of this material, the learned Special Court has framed charges against both the accused. Thereafter an important development that has taken place is that the statement of the prosecutrix stands recorded before the Special Court on 28.01.2022. In her statement while the prosecutrix has maintained that the baby born to her was the result of sexual intercourse committed by the co-accused Shahid Teli upon her without attributing any role to the petitioner in her examination-in-chief. In her cross-examination she has made things more clear by stating that the petitioner Showkat Ahmad War has not even touched her and has further stated that the petitioner has not committed sexual assault upon her. She in fact goes on to state that it is at the instance of the police that she has implicated the petitioner Showkat Ahmad War. 14. The statement of the father of the prosecutrix has also been recorded by the Special Court on 14.02.2022. In his statement, the witness has again attributed no role to petitioner Showkat Ahmad War and has stated that there was a relationship between co-accused Shahid Ahmad Teli and his daughter for about two years. 14. The statement of the father of the prosecutrix has also been recorded by the Special Court on 14.02.2022. In his statement, the witness has again attributed no role to petitioner Showkat Ahmad War and has stated that there was a relationship between co-accused Shahid Ahmad Teli and his daughter for about two years. He clarified that the prosecutrix in fact did not disclose to him anything about petitioner Showkat Ahmad War. 15. From the statement of the prosecutrix and her father recorded before the learned Special Court, it appears that presumption of guilt which has arisen against the petitioner with the filing of charge sheet and framing of charges against him gets, prima facie, rebutted by the aforesaid two statements of the prosecution witnesses. Thus, without commenting upon merits of the case, lest it may prejudice case of the prosecution, it can, for the purposes of deciding this bail application, be safely stated that there is no prima facie ground to believe that the petitioner has committed the alleged crime. 16. Apart from the above, material prosecution witnesses have already been examined by the Special Court and there is no material on record to show that the petitioner, if admitted to bail, would misuse the said concession. Thus, a case for grant of bail in favour of the petitioner is made out. 17. Although learned counsel for the petitioner, during the course of arguments has brought to the notice of this Court the material to show that the prosecutrix has entered into a wedlock with co-accused Shahid Ahmad Teli and urged that this is a circumstance which goes in favour of the accused, yet undertaking an exercise to determine the effect of this circumstance while considering the bail application of the present petitioner will be an academic exercise only. The effect of this circumstance would be considered in an appropriate case as it is not required to be considered in these proceedings. 18. For the foregoing reasons, the application of the petitioner deserves to be accepted. Accordingly, the application is allowed and the petitioner is admitted to bail subject to the following conditions: I. That he shall furnish personal bond in the amount of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned trial court; II. That he shall appear before the trial court on each and every date of hearing; III. That he shall appear before the trial court on each and every date of hearing; III. That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the learned trial court; IV. That he shall not tamper with prosecution witnesses. 19. Observations made hereinabove shall remain confined to the decision of the instant application only and shall not be construed as an opinion on the merits of the case.