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2021 DIGILAW 23 (MAN)

Nongthombam Ramesh Singh v. State of Manipur

2021-07-08

M.V.MURALIDARAN

body2021
JUDGMENT This petition has been filed by the petitioner under Section 439 Cr PC to enlarge him on bail in connection with the Special Trial (POCSO) Case No. 1/2020/29/2020 pending on the file of the Fast Track Special Court No I, Manipur. 2. The case of the prosecution is that on 9.2.2019 at about 1.00 p.m., the petitioner sexually assaulted a minor girl aged about 9 years Inside his cycle repairing shop. A complaint was lodged by the mother of the victim girl on the same day before the Women Police Station, Imphal West and the police registered the case in FIR No 32(7)2019 under Section 4 of the Protection of Children from Sexual Offences Act, 2012 After completion of the investigation, charge sheet for commission of the offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”) was filed against the petitioner. 3. The learned counsel for the petitioner submitted that the petitioner is an innocent and has been falsely implicated in the alleged crime. Further, the petitioner is an aged person and suffering from several problems with stomach and pain abdomen and he has been diagnosing since from the long period. He would submit that in fact the Doctor who treated him in the jail recommended treatment from a well equipped hospital outside the jail. 4. The learned counsel further submitted that earlier the petitioner has filed bail application before the trial Court for releasing him mainly on medical ground. However, the trial Court rejected the bail application of the petitioner vide order dated 13.11.2020 without considering the plea of the petitioner. 5. The learned counsel for the petitioner then submitted that the provisions of Cr.P.C. confer discretionary jurisdiction on criminal Courts to grant ball to the accused pending trial. However, the trial Court refused to grant bail to the petitioner on medical grounds. Since the petitioner needs immediate better treatment outside the jail, the learned counsel prayed for bail. 6. Per contra, the learned Public Prosecutor submitted that a detailed statement of the victim girl was recorded under Section 161 Cr.P.C., wherein she had stated that on the day of the Incident, the petitioner forcibly laid her on his bed and sexually assaulted by closing her mouth. Later she came out running by pinching his hand and disclosed to her mother. Later she came out running by pinching his hand and disclosed to her mother. Since the said statement of the victim fully supported the complainant’s statement, the petitioner cannot be enlarged on bail. 7. The learned Public Prosecutor further submitted that the Doctor who examined the victim girl opined signs of sexual assault present and that in her statement recorded under Section 164 Cr.P.C., by the Judicial Magistrate, the victim girl has clearly narrated the incident. 8. The learned Public Prosecutor then submitted that the alleged illness of the petitioner is not an immediate threat to life and it may be cured by proper prescription of medicines which can be available in the jail itself. According to the learned Public Prosecutor, the trial Court, after considering all these aspects, rightly rejected the bail application of the petitioner. Arguing so, the learned Public Prosecutor prayed for dismissal of the present bail application. 9. This Court considered the submissions raised by the learned counsel for the petitioner and the learned Public Prosecutor and also perused the materials available on record. 10. The case of the prosecution is that on 9.2.2019 at about 1.00 p.m., the petitioner sexually assaulted the victim girl inside one of the complainant’s shop room rented out to the petitioner located at Tera Loukrakpam Leikai. Based on the complaint lodged by the mother of the victim, the Women Police Station, Imphal West, registered the FIR under Section 4 of the POCSO Act against the petitioner and during the course of investigation the petitioner was arrested on 28.8 2019. The trial Court taken the cognizance and the case is now pending before the trial Court. 11. The petitioner seeking bail mainly on the ground of his illness. According to the petitioner, he was having pain abdomen, chest pain, back pain reddish discoloration of urine, palpitation off and on. It is the say of the petitioner that there was no facility in Manipur Central Jail Sajiwa for treating him. In support of his plea, the petitioner relied on the letter dated 27 6.2020 of the Senior Medical Officer, Manipur Central Jail Sajiwa addressed to the Superintendent, Manipur Central Jail, Sajiwa. 12. It is the say of the petitioner that there was no facility in Manipur Central Jail Sajiwa for treating him. In support of his plea, the petitioner relied on the letter dated 27 6.2020 of the Senior Medical Officer, Manipur Central Jail Sajiwa addressed to the Superintendent, Manipur Central Jail, Sajiwa. 12. On a perusal of the said letter dated 27.6.2020, it is seen that the Doctor attached to the Manipur Central Jail opined that It would be better for the petitioner to take treatment from a well equipped hospital outside jail, as proper treatment could not be given due to Covid-19 related lockdown and non availability of general OPDS, JNIMS On 10.7 2020, the Doctor who examined the petitioner and issued letter to the Superintendent of the Central Jail has opined that in spite of medication, his abdomen pain did not subside. 13. At this juncture, the learned Public Prosecutor submitted that the petitioner has now filed the present petition on the same ground as stated in his earlier bail application before the trial Court and on this ground alone, the present petition deserves to be rejected. This Court finds no force in the said submission of the learned Public Prosecutor. 14. It is settled law that an order refusing an application for bail does not necessarily preclude another on a later occasion giving more materials, further developments and different considerations. While the Court should take into account the circumstance under which the earlier bail application was rejected, it cannot be said that the Court is barred from second consideration at a later stage. 15. In the order dated 13.11.2020 of the trial Court rejecting the bail petition, it has been observed that as per the health status report dated 21.10.2020 of the petitioner, the petitioner was referred to JNIM and medications for hypertensions and symptomatic have been prescribed However, no immediate threat to life has been mentioned in the report The observation of the trial Court that no immediate threat to life was mentioned in the report cannot be sustained as the opinion of the Doctor clearly indicates that the petitioner needs better treatment from a well equipped hospital outside the jail. When that being the opinion of the Doctor, the trial Court simply observed that no immediate threat to life has been mentioned in the report. 16. When that being the opinion of the Doctor, the trial Court simply observed that no immediate threat to life has been mentioned in the report. 16. Coming to the another ground for rejection of the bail by the trial Court - gravity of the offence, spirit of the POCSO Act, best Interest of the victim child and the general interest of the public, this Court Is of the view that the merits of the offence alleged against the petitioner cannot be gone into at this stage. It is true that the offence committed by a person under POCSO Act should not be enlarged on bail like other offences. 17. It is settled that the grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated to a large extent by the facts and circumstances of each particular case. In the case on hand, the petitioner seeks bail mainly on the ground of his illness, which fact was also evident from the medical records produced by the petitioner along with the bail petition It is to be noted that no contra medical records have been produced by the prosecution. 18. It appears that the offence alleged was dated 09.02.2019 and the petitioner was arrested on 28.08.2019 It is not the case of the prosecution that the petitioner is delaying the trial of the case and according to the petitioner, there is no question of hamper or tamper with any prosecution evidence after the petitioner is released on bail. There is also no specific plea in the affidavit-in-opposition filed by the prosecution that the petitioner will hamper and tamper the prosecution witnesses, if he is released on bail The petitioner says that the residence of the petitioner and the residence of the prosecutrix are very far away from each other and as such there is no risk of threat and intimidation by the petitioner, if the petitioner is released on bail. 19. 19. In Alakh Alok Srivastava v. Union of India and others, reported in (2018) 17 SCC 291, the Hon’ble Supreme Court directed for constitution of Special Courts to deal with the cases under the POCSO Act and issued direction to the High Courts to give suitable Instructions to the Special Courts to fast track the cases by not granting unnecessary adjournments and following the procedure laid down in the POCSO Act and complete the trial in a time bound manner or within a specific time frame under the Act. 20. Further, as per Section 35 of the POCSO Act, evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and the reason for delay, if any, shall be recorded by the Special Court. The provision of the POCSO Act further provides that the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence. 21. In the instant case, there is nothing on record to show that the petitioner is delaying the trial of the case. May be, due to Covid-19 pandemic and the related lockdown and also the restricted functioning of the Courts, the trial is being delayed. However, when the under-trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution of India is violated. Every person, detained or arrested, is entitled to speedy trial and the Act also provides time frame to complete the trial. Merely the fact that the offence allegedly committed by the petitioner was registered under Section 4 of the POCSO Act, the petitioner cannot be denied bail on the ground that the offence is serious in nature. 22. In Babba v. State of Maharastra, reported in (2005) 11 SCC 569 , the Hon’ble Supreme Court held that when there is a delay in the trial, bail should be granted to the accused. In the instant case, admittedly, there is a delay in the trial. 23. As stated supra, the petitioner was aged 65 years and he is not well and he needs better treatment outside the jail. The right to ball is not to be denied merely because of the sentiments of the society and/or community against the accused. 24. In the instant case, admittedly, there is a delay in the trial. 23. As stated supra, the petitioner was aged 65 years and he is not well and he needs better treatment outside the jail. The right to ball is not to be denied merely because of the sentiments of the society and/or community against the accused. 24. The law is well settled that the primary purposes of ball in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. 25. In Sanjay Chandra v. CBI, reported in (2012) 1 SCC 40 , the Hon’ble Supreme Court observed as follows: “21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.” 26. Time and again, the Hon'ble Supreme Court as well as this Court held that bail is the rule and committal to jail is an exception The Courts have also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution of India. 27. The principles relating to grant or refusal of bail have been stated in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan, reported at (2004) 7 SCC 528 . 27. The principles relating to grant or refusal of bail have been stated in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan, reported at (2004) 7 SCC 528 . In Kalyan Chandra Sarkar (supra), the Hon’ble Supreme Court observed that the Court granting bail should exercise its discretion in a judicious Manner and not as a matter of course Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate In such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting ball to consider among other circumstances and the following facts also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima face satisfaction of the Court in support of the charge. 28. In Dataram Singh v. State of Uttar Pradesh and another, reported in (2018) 3 SCC 22 , the Hon’ble Supreme Court observed that a fundamental postulate of criminal jurisprudence is the presumption of Innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences, but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correctional home is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the resultthat more and more persons are being Incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to cur society. 29. Unfortunately, some of these basic principles appear to have been lost sight of with the resultthat more and more persons are being Incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to cur society. 29. Thus, it is clear that grant or denial of bail is entirely the discretion of the Judge considering the case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by the Hon’ble Supreme Court as well as by the High Courts in the country. 30. To put it shortly, a humane attitude is required to be adopted by aJudge while dealing with the ball application. Even if the offence is a serious offence, requires a humane treatment by the Court, Humane treatment to all including an accused Is requirement of law. Furthermore, a prisoner, who is suffering from an ailment, has to be given due treatment and care while in prison. 31. In the case on hand, as stated supra, the petitioner was aged 65 years and according to the health status of the petitioner submitted by the Senior Medical Officer of the Central Jail to the Superintendent of Police, Manipur Central Jail, the petitioner was having pain abdomen, chest pain, back pain reddish discoloration of urine, palpitation off and on for which he was examined and received treatment from MI room but could not relieved his symptoms. 32. The report further says that the petitioner was referred to JNIMS - ATC and examined and yet USG (W) done. His stomach is distended/dilated (USG) and he has been prescribed medications. Despite of medications, his symptoms of chest pain with palpitation and kidney stone related ds, hypertension could not be relieved and at this condition of his illness, it would be better for him if he receives treatment from a well-equipped hospital outside jail as proper treatment could not be given due to Covid-19 situation. Thus, the report of the medical officer shows that the petitioner is still suffering from pain abdomen since a long period and till date and the petitioner is required proper better treatment outside the jail. Therefore, this Court Is of the view that on the medical ground, the petitioner is entitled to be enlarged on bail, though the offence allegedly committed by the petitioner is grave in nature. 33. Therefore, this Court Is of the view that on the medical ground, the petitioner is entitled to be enlarged on bail, though the offence allegedly committed by the petitioner is grave in nature. 33. The petitioner has been charged under Section 4 of the POCSO Act which entails a punishment of not less than seven years, but which may extent to imprisonment for life with fine. The learned counsel for the petitioner submitted that the petitioner is innocent to the alleged crime. On the other hand, it is the submission of the learned Public Prosecutor that under Section 29 of the POCSO Act, it is presumed that the petitioner has committed the offence unless the contrary is proved. The innocence and the alleged Involvement of the petitioner in the crime cannot now be gone into, as the trial is yet to begin Therefore, as stated supra, this Court has not delved into the merits of the case. 34. The trial Court dismissed the bail application of the petitioner in the general interest of the public as held by the Hon’ble Supreme Court in the case of Sanjay Chandra (supra), right to bail is not to be denied merely because of sentiments of community against the accused. 35. It is true that victims of POCSO Act are suffering and facing social stigma, agony and trauma because of the occurrence and could not recover completely from the said heinous Incident. In some of the cases, the minor victims are suffering not only mental trauma, agony, social ostracisation, but also withdrawn from the society. However, considering the petitioner’s medical condition, which is confirmed by the medical status report, which shows that the petitioner suffers from various ailments and therefore that the threat to the petitioner’s health in the prevailing times of Covid-19 pandemic is real and imminent and In view of the assurance extended on behalf of the petitioner that he shall not hamper or tamper the prosecution witnesses, this Court persuaded to grant bail to the petitioner only on medical grounds for taking better treatment outside the jail. 36. Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in connection with the Special Trial (POCSO) Case No.1/2020/29/2020 on the file of the Fast Track Special Court No.1, Manipur, subject to his furnishing a personal bond in the sum of Rs. 36. Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in connection with the Special Trial (POCSO) Case No.1/2020/29/2020 on the file of the Fast Track Special Court No.1, Manipur, subject to his furnishing a personal bond in the sum of Rs. 25,000/- with two local sureties in the like amount to the satisfaction of the trial Court with the following conditions: (i) The petitioner shall not leave the place of residence without permission of the Court and shall ordinarily reside at a place of residence and the complete address of such place shall be furnished to the trial Court at the time of release. (ii) The petitioner shall appear before the trial Court on all hearing dates and shall cooperate for Speedy disposal of the case. (iii) If the petitioner has a passport, he shall also surrender the same to the trial Court. (iv) The petitioner shall not contact nor visit nor threaten nor offer any inducement to the victim or the complainant or any of the prosecution witnesses. (v) The petitioner shall not tamper with evidence nor otherwise Indulge in any act or omission that would prejudice the proceedings in the matter. (vi) It is clarified that if the petitioner misuses the liberty or violate any of the conditions Imposed upon him, the prosecution shall be free to move this Court for cancellation of the bail. (vii) Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of the present bail petition.