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2015 DIGILAW 106 (MAN)

Kh. Ziaul Haque v. State of Manipur

2015-08-17

KH.NOBIN SINGH

body2015
JUDGMENT Kh. Nobin Singh, J. 1. Heard Shri Md. Jalaluddin, Advocate appearing for the petitioner and Shri R.S. Reisang, Sr. Govt. Advocate assisted by Shri Shyam Sharma, learned Govt. Advocate appearing for the respondent. 2. The above petition/application has been filed by the petitioner under section 438 of the Cr.P.C. praying for grant of anticipatory bail and also ad interim bail for the end of justice. 3. This is a new provision made on the recommendation of the Law Commission. Under the old code, there was no specific provision for grant of anticipatory bail. The first part of the section sets out the conditions under which a person can make an application for anticipatory bail. The second part confers jurisdiction on the High Court or the Court of Session. 4. This is an exceptional power and can be exercised only in exceptional cases and not in all general cases. The considerations governing the exercise of discretion for granting anticipatory bail are materially different from those of an application for bail. In the case of Siddharam Satlingappa Mhetre v. State of Maharastra reported in (2011) 1 SCC 694 , the Hon'ble Supreme Court has examined the historical perspective, scope and ambit of Section 438 Cr.P.C. and after analyzing the various judgments and guidelines, the Hon'ble Supreme Court has enumerated the following factors and parameters that can be taken into consideration by the Court while dealing with the anticipatory bail: "(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern. (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 5.1. According to the petitioner, he is now serving as Constable in the Police Department, Government of Manipur and is presently posted at Heirok Police Station, Thoubal District. The petitioner having eloped Ms. Mastana, D/o Md. Junab Ali, Heitroipokpi Village on 19-06-2015, is engaged for marriage with her. On 23-06-2015 at about 7:30 p.m. one Ms. Alina, the victim, aged about 22 years, said to be the daughter of one Md. Alaoddin, aged about 60 years from Sangaiyumpham Nungpou, P.S. Thoubal came to his house and informed his parents that she came there to be his wife and on hearing the news about it, the parents of the victim made an oral report to the local Councilor for handing the victim over to them on the same day. However, on 24-06-2015 at about 3:00 p.m. the local Councilor handed the victim to the Police Station for handing her over to her parents. After the victim having been handed over, her father lodged a false report to the O.C., Thoubal Police Station on 24-06-2015 itself on the allegation that the victim was forcibly kidnapped by the petitioner and three unknown persons to make her his wife. Accordingly, an FIR No. 158(6)2015 TBL P.S. u/s. 366/368/34 IPC was registered against the petitioner and his friends. 5.2. Accordingly, an FIR No. 158(6)2015 TBL P.S. u/s. 366/368/34 IPC was registered against the petitioner and his friends. 5.2. After the said FIR having being registered, the Police personnel of the Thoubal Police Station called the parents of the parties on 25-06-2015 in order to ascertain the real facts of the case and accordingly, the parents of both the parties appeared before the Thoubal Police Station on the same day and during the course of discussion, the father of the victim demanded Rs. 5 lakhs as compensation from the parents of the petitioner which the parents of the petitioner refused to give it. After the settlement having failed, the O.C., Thoubal Police Station attempted to arrest the petitioner and search was made at Heirok Police Station at about 8:00 p.m. However, the petitioner managed to avoid the arrest with the help of his friends and on 26-06-2015, at about 5:00 a.m. in the morning, the I.O came to the residence of the petitioner and searched for arresting him at the instigation of the father of the victim and since the petitioner had reason to believe that he was likely to be arrested on false allegation, the present anticipatory bail application had been filed. 6. On 26-06-2015, when the above anticipatory bail application was listed for consideration, this court was, before issuing notice in the matter, pleased to grant time to the Senior Government Advocate appearing for the respondent to seek instructions and grant interim protection to the petitioner directing that the petitioner be not arrested by the police in connection with the said FIR No. 158(6)2015 TBL P.S. u/s. 366/368/34-IPC till the next date. Thereafter, the above matter came to be listed on several occasions but adjourned on valid reasons and ultimately, the matter was listed on 10-08-2015 for consideration. 7. It is vehemently submitted by the learned counsel appearing for the petitioner that the petitioner has been falsely implicated on the allegation that he has forcibly kidnapped the victim to make her his wife; that the petitioner has never met the victim earlier; that he is already engaged with Ms. Mastana from Yairipok Heithoipokpi and that he has reason to believe that he may be arrested by the Police in connection with the said FIR No. 158(6)2015 TBL P.S. u/s. 366/368/34 IPC. Mastana from Yairipok Heithoipokpi and that he has reason to believe that he may be arrested by the Police in connection with the said FIR No. 158(6)2015 TBL P.S. u/s. 366/368/34 IPC. On the other hand, relying upon the materials collected so far in the investigation, the said anticipatory bail application is contested by the learned Senior Government Advocate. It is submitted by him that the petitioner has forcibly kidnapped the victim on 23-06-2015 at about 5.30 p.m. and has sexually assaulted her at his house. It is a serious offence and the custody of the petitioner is required for further investigation so as to find out the truth of the case. He has further submitted that during the course of investigation, the statements of the victim under Section 161 as well as 164 of Cr.P.C have been recorded and statements of other witnesses also have been recorded under Section 161 of Cr.P.C and from their statements, it is prima facie established that the petitioner has forcibly kidnapped the victim and therefore, it is not a fit case for granting anticipatory bail to the petitioner. 8. Relying upon the decision rendered by the Hon'ble Gauhati High Court in the case of Kwmta Gwra Brahma v. State of Assam, reported in 2015 (2) GLT 665, the learned Senior Government Advocate has raised a preliminary objection as regards the maintainability of the bail application on the ground that the petitioner has filed the above application without exhausting his remedy of filing an application before the Session Court. The Hon'ble Gauhati High Court has laid down the circumstances under which a person can approach the High Court after analysing the ratio laid down in some decisions of High Courts and in particular, the salient aspects as mentioned in para 14 of the judgment and order. With due respect to the Hon'ble Gauhati High Court, it is submitted that all the said aspects are not relevant so far as this High Court is concerned. The circumstances may differ from High Court to High Court and the said aspects may be relevant in some High Courts where the pendency is alarming and the precious time of the High Court is to be devoted to other important matters. But it is not so in this High Court. The circumstances may differ from High Court to High Court and the said aspects may be relevant in some High Courts where the pendency is alarming and the precious time of the High Court is to be devoted to other important matters. But it is not so in this High Court. It is not in dispute that the power and jurisdiction of the Session Court and the High Court is concurrent in granting anticipatory bail under Section 438 of Cr.P.C and since the intent of the legislature being unambiguous, it must be left with the wisdom of the person concerned either to approach the Session Court or the High Court depending upon his own convenience and other circumstances. In view thereof, the contention of the learned Senior Government Advocate being not sustainable, is rejected and this court proposes to decide the application on merit. 9. The case of the petitioner is that he has not met the victim earlier at all and the victim alone came to his house claiming that she be his wife. It is unbelievable that the victim being a girl would come to the house of an unknown person on 23-06-2015 in the night and claim to be the wife of an unknown person. Moreover, if the victim really came to the house of the petitioner on her own, the immediate and natural conduct of his parents would be to ask the victim as to who she is; who are her parents and what are contact numbers of her parents and to inform, thereafter, the parents of the victim. Instead of doing that, the victim after she being sexually assaulted by the petitioner, was handed over to the local Councillor at about 11.30 p.m., through the Meira Paibi, who handed the victim over to the police the next day i.e., 24-06-2015 at about 4.50 p.m. 10. The statement of the victim under Section 161 Cr.P.C was recorded by the police on 24-06-2015 itself at about 5.30 p.m. wherein she has stated that she has been forcibly kidnapped by the petitioner along with three other unknown persons and she has been sexually assaulted by the petitioner at his residence. The statement of the victim under Section 161 Cr.P.C was recorded by the police on 24-06-2015 itself at about 5.30 p.m. wherein she has stated that she has been forcibly kidnapped by the petitioner along with three other unknown persons and she has been sexually assaulted by the petitioner at his residence. It is also stated that she was thereafter threatened by some persons including the sister of the petitioner that unless she told the Councillor that she had come on her own, she would be killed and she could identify the petitioner's sister because she along her parents had come to the victim's house earlier to ask her hand for marriage which the victim's parents had declined. A similar statement of the victim under Section 164 Cr.P.C came to be recorded by the JMIC, Thoubal on 02-07-2015 and the statement of the victim as regards the kidnapping is substantiated by the statements of two witnesses namely Md. Najir Khan and Md. Shahrukh khan who could see the incident of kidnapping from a distance. From the statement of Md. Najir Khan, it is clear that there are other witnesses who have witnessed the incident of kidnapping from a short distance and are yet to be examined by the police. 11. The conduct of the petitioner prior or after the interim protection granted by this Court on 26-06-2015, while some time being granted to the Senior Government Advocate for seeking instructions from the respondent, in the present application is relevant and important to be noted. After the statement of the victim having been recorded and she being handed over to her sister, on 24-06-2015 at about 8:00 p.m., the I.O along with a police team went to the house of the petitioner for causing arrest but found that neither the petitioner nor any member of the petitioner's family was present in the house. On 27-06-2015 at about 4:00 a.m. again, the I.O. along with a police team raided the house of the petitioner but neither the petitioner nor any member of the family was available. One person claiming to be the guardian of the petitioner informed the I.O. that the petitioner has been granted interim protection by the Hon'ble High Court. Even after the interim protection being granted by this court on 26-06-2015, the petitioner did not care either to visit the Police Station or to the I.O. concerned. One person claiming to be the guardian of the petitioner informed the I.O. that the petitioner has been granted interim protection by the Hon'ble High Court. Even after the interim protection being granted by this court on 26-06-2015, the petitioner did not care either to visit the Police Station or to the I.O. concerned. Moreover, the petitioner was on leave from 25-06-2015 till 15-07-2015 and there is no cogent reason and no justification as to why he did not co-operate with the investigation. The conduct of the petitioner is not proper and unfair to the investigation. 12. The petitioner is a Police Constable in the Police Department, Government of Manipur. The police play a central role in the law enforcement system. The functions of police includes enforcing law, keeping peace and protection of life and property. But in the present case, the petitioner being a Police Constable and protector of life & property of the citizen, has allegedly committed kidnapping and sexually assaulting the victim. In case the anticipatory bail is granted, it is submitted by the learned Senior Government Advocate, there is apprehension that the petitioner may definitely hamper in the investigation as well as tamper the evidence of other witnesses who are yet to be examined by the police and therefore, his custodial interrogation is required in order to ascertain the true facts of the case. The contentions of the learned Senior Government Advocate have some force and are sustainable. 13. Since the victim has stated that she has been sexually assaulted, the victim was got medically examined by the Department of Forensic Medicine, JNIMS, Porompat, Imphal. The Urethral swab of the victim in sterile plastic tube and Vagina swab of the victim in a sterile plastic tube, on production by the doctor, were seized. On examination, the doctor has found that the hymen is torn but the doctor has reserved his opinion pending availability of reports of the samples sent for examination. As per medical report, the victim sustained simple injuries, (bruises) 13 in number, on left hand, left/right arm, right thumb, knee etc. 14. On examination, the doctor has found that the hymen is torn but the doctor has reserved his opinion pending availability of reports of the samples sent for examination. As per medical report, the victim sustained simple injuries, (bruises) 13 in number, on left hand, left/right arm, right thumb, knee etc. 14. Considering all aspects, including the conduct of the petitioner prior or after the interim protection being granted by this Court on 26-06-2015 and on perusal of the original case diary along with case records/documents produced by the learned Senior Government Advocate, this court is of the view that the petitioner has not made out a case for anticipatory bail and in other words, it is not a fit case for granting anticipatory bail. It is made clear that while rejecting the present application, this court has not expressed any opinion on the merits of the case. After surrender, it is open to the petitioner to move bail application before the court concerned and in the event of a bail application being moved by the petitioner, the same shall be considered and disposed of in accordance with law. 15. In view of the above observations, the present anticipatory bail application is dismissed and the interim protection granted by this court on 26-06-2015 stands vacated. The petitioner is directed to surrender within a week from today.