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Manipur High Court · body

2021 DIGILAW 28 (MAN)

Johnson Arokiadass v. State of Manipur

2021-08-09

M.V.MURALIDARAN

body2021
JUDGMENT This application has been filed by the petitioner under Section 439 Cr.P.C. seeking to enlarge him on bail in connection with FIR No.24(4)2021 of Moreh Police Station registered under Section 11(iv)(v)/18 of POCSO Act. 2. The case of the prosecution is that on 17.4.2021 at 9.00 a.m., the complainant Harbajan Kaur lodged a written complaint to the Officer-in-Charge of Moreh Police Station stating that on 5.4.2021, her daughter was mentally harassed by the petitioner with sexual intention and asked her to send pictures late at night through mobile phone. The petitioner also blackmailed the daughter of the complainant and asked her to meet privately, failing which he would come to her residence and expose her relation with her boyfriend. Further case of the prosecution is that the petitioner came to the house of the complainant thrice on 5.4.2021, 6.4.2021 and 14.4.2021 asking why her daughter blocked his number. While visiting the house of the victim, the petitioner also threatened the victim regarding her education, as she is one of the sponsored students under VSR Trust Foundation and further threatened to discontinue her sponsorship. 3. The learned counsel for the petitioner submitted that the petitioner is innocent and he has been falsely implicated in this case and that the petitioner was working as Headmaster in Sun Rise School, Moreh and he had never been complained of by his students or parents on his morality and character or any other virtues till now. The learned counsel further submitted that the petitioner is a responsible family man having wife and two sons, who are dependent on his earning and having deep root and living in the society with good reputation and dignity without any complaint. However, the petitioner was arrested on 17.4.2021 based on the false complaint lodged by the complainant. 4. The learned counsel next submitted that since the daughter of the complainant was very weak in her education and due to that reason the petitioner had been very strict on her and some time he even scolded her to study hard to become a good student being a teacher and Headmaster of the school. 4. The learned counsel next submitted that since the daughter of the complainant was very weak in her education and due to that reason the petitioner had been very strict on her and some time he even scolded her to study hard to become a good student being a teacher and Headmaster of the school. The learned counsel for the petitioner would submit that the petitioner even said to the daughter of the complainant not to mingle and associate with bad company and loiter around here and there without any reason and focus on study only which she hardly gave ear to the petitioner’s words and that on one occasion, the petitioner caught red handed the daughter of the complainant associating with bad company. 5. According to the learned counsel for the petitioner, the petitioner went to the house of the victim three times only because for the welfare and well-being of the victim’s academic career and not otherwise, but he did not enter inside the house. In fact, the petitioner, at no point of time used any sexual, demeaning or vulgar words or gesture or comment towards his students, including the victim, while chatting either through voice or typing mode and these chats were strictly restricted within the perimeter of student and teacher relationship. 6. By placing reliance upon the decision of the Hon’ble Supreme Court in the case of State of Kerala v. Raneef, reported in (2011) 1 SCC 784 , the learned counsel for the petitioner submitted that the trial will take several years and the said factor has to be taken into consideration. 7. The learned counsel for the petitioner then submitted that earlier the petitioner approached the learned Special Judge, POCSO, Imphal West for bail and by the order dated 20.5.2021, the bail application of the petitioner was dismissed. Since the petitioner was in custody from 17.4.2021, the further detention of the petitioner under judicial custody even after the completion of the investigation is not required and moreover, the reputation of the petitioner will be tarnished irreparably in society. Arguing so, the learned counsel for the petitioner seeks bail to the petitioner. 8. Opposing the bail application, the learned Public Prosecutor submitted that on examination of the complainant, it was ascertained that the petitioner frequently visited her house and she assumed that the petitioner might have come to guide her daughter in her studies. Arguing so, the learned counsel for the petitioner seeks bail to the petitioner. 8. Opposing the bail application, the learned Public Prosecutor submitted that on examination of the complainant, it was ascertained that the petitioner frequently visited her house and she assumed that the petitioner might have come to guide her daughter in her studies. Later when her daughter narrated the facts, she came to know that he was coming to her house for blackmailing her daughter for mental harassment and sexual assault. 9. The learned Public Prosecutor further submitted that there is reasonable ground to believe that the petitioner might have concealed some fact and circumstances and in fact, during his police custody, he admitted that he used to make conversation with the victim through the key pad mobile phone. It is also the submission of the learned Public Prosecutor that if the petitioner is released on bail, there is a chance of threatening to the complainant and the victim by taking advantage of his position and status in his community. Moreover, the petitioner might commit such crimes to other victims as a matter of habit and nature and that he may jump up the bail and may abscond to avoid trial. 10. 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. 11. The allegation against the petitioner is that on 5.4.2021, the petitioner mentally harassed the victim with sexual intention and asked her to send pictures at late night and the petitioner has also blackmailed the victim and asked her to meet privately or he would come and meet at her residence and expose her. 12. Earlier, the petitioner filed bail application before the learned Special Judge, POCSO, Imphal West. By the order dated 20.5.2021, the learned trial Judge, dismissed the bail application observing that it is clear that there are materials under Section 11(iv) of POCSO Act against the petitioner as he had harassed the victim by threatening her of stopping her education, if she did not meet him in private and did not unblock his number. Observing that since the investigation is at advance stage, it would be unfair to release the petitioner on bail as there are chances of him influencing or threatening the victim, her family and other witnesses. 13. Observing that since the investigation is at advance stage, it would be unfair to release the petitioner on bail as there are chances of him influencing or threatening the victim, her family and other witnesses. 13. The learned counsel for the petitioner submitted that there is no question of absconding by the petitioner nor is there any apprehension for tampering or intimidating with any of the prosecution witnesses or otherwise hampering the investigation by the petitioner, who is Headmaster having no influence or connection. The learned counsel also submitted that the petitioner is ready to make himself available for the purpose of further interrogation by the police and also ready to give surety and to abide by any such direction or condition as may be stipulated by this Court. 14. Per contra, by citing the following points, the learned Public Prosecutor strongly objected releasing the petitioner on bail: (1) On 5.4.2021, the petitioner informed the victim that he has proof of going her with one Prakash, for which the victim replied that she went for a ride with the permission of her mummy as Prakash is her friend and well known to her family. (2) The petitioner told the victim to come and apologies personally about the matter. (3) The petitioner threatened the victim that he will inform the matter to V. Shekhar Singh, head of VSR Trust Foundation. When the victim said sorry, the petitioner told her that he will not accept unless she meet personally and apologized to him. The petitioner further threatened the victim to receive his phone call whenever he calls. (4) On 6.4.2021 at night hours, the petitioner again threatened her stating that if she went and meet Shekhar, then she will know what will happen to her future. The petitioner also said the victim will be expelled from the school. (5) The petitioner threatened the victim that if she wanted to save her mummy from shame, she should do whatever he told her to do and if she fail to do, she should be ready to face the consequences. (6) On 7.4.2021, the petitioner again threatened her that he need to talk to her the next day and asked the victim to send some good pictures of hers. 15. (6) On 7.4.2021, the petitioner again threatened her that he need to talk to her the next day and asked the victim to send some good pictures of hers. 15. The learned Public Prosecutor also submitted that on 11.4.2021, the victim blocked the phone number of the petitioner, as she felt irritated of his messages and calls. However, on 15.4.2021, the petitioner came to the residence of the victim and asked why she blocked his number, for which the victim replied that she don’t want to his messages and calls as they were with sexual intent to cause her sexual harassment and it was also mentally disturbing. Since serious allegations are levelled against the petitioner, releasing him at this stage is not appropriate and prayed for dismissal of the bail application. 16. As could be seen from the order of the dismissal of the bail application, the trial Court recorded that in the statement under Section 164 Cr.P.C., the victim reiterated that she was harassed by the accused, was forced to send her photo by whatsapp, threatened her for blocking his number and also threatened her of stopping her education if she refused to meet him privately. 17. The learned counsel for the petitioner submitted that no offence is made against the petitioner within the meaning of Section 11(iv) and (v) of the POCSO Act and as per the complaint, the petitioner asked the victim to send a picture, threatened the victim of stopping sponsoring for her education and pressurizing her of meeting him privately. Pointing out the said allegations in the complaint, the learned counsel for the petitioner argued that no sexual intent was present in the above allegations against the petitioner within the meaning of Section 11 of the POCSO Act. 18. Pointing out the said allegations in the complaint, the learned counsel for the petitioner argued that no sexual intent was present in the above allegations against the petitioner within the meaning of Section 11 of the POCSO Act. 18. It will be appropriate to reproduce the provisions of Section 11 of the POCSO Act, which reads thus: “Section 11 - Sexual harassment A person is said to commit sexual harassment upon a child when such person with sexual intent,- (i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or (ii) makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or (iii) shows any object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or (v) threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or (vi) entices a child for pornographic purposes or gives gratification therefore. Explanation,--Any question which involves “sexual intent” shall be a question of fact.” 19. In the context of the instant case, it needs to be mentioned that if a person with sexual intent repeatedly or constantly follows or watches or contacts a child either directly or through other means, then he can be said to have committed an offence defined under Section 11 of the POCSO Act. The question whether the acts of the petitioner were with sexual intent is a question of fact which needs to be adjudicated on appreciation of evidence to be adduced by the prosecution. 20. It is to be noted at this stage that this Court cannot come to a conclusion based on the materials available on record that the petitioner, who was working as Headmaster of the school in which the victim studying, has done the alleged acts with any sexual intent. 20. It is to be noted at this stage that this Court cannot come to a conclusion based on the materials available on record that the petitioner, who was working as Headmaster of the school in which the victim studying, has done the alleged acts with any sexual intent. The acts allegedly committed by the petitioner are to be proved by way of oral and documentary evidence. Therefore, pending trial, detaining the petitioner in jail would definitely affect his personal liberty. 21. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty to a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the Investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz., the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. 22. It is well settled that while considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. Where the offence is of serious nature, the question of grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public. As stated supra, the allegations levelled against the petitioner are to be proved by way of oral and documentary evidence and thus, at this stage, an elaborate analysis of the merits of the allegations cannot be gone into. 23. As stated supra, the allegations levelled against the petitioner are to be proved by way of oral and documentary evidence and thus, at this stage, an elaborate analysis of the merits of the allegations cannot be gone into. 23. It has been time and again held by the Hon’ble Supreme Court that a procedure which keeps large number of people behind bars without trial, for long, cannot be regarded as “reasonable, just, fair” so as to be in conformity with the provisions of Article 21 of the Constitution of India. Detaining the under-trial prisoners in custody for an indefinite period is a gross violation of Article 21 of the Constitution. The trial of the case is not likely to be concluded in near future and keeping the petitioner in custody indefinitely till the completion of trial could be a cause of great hardship and violation of personal liberty of the petitioner. 24. In the case on hand, one of the grounds raised by the petitioner for seeking bail is the delay in trial. Admittedly, the said fact should be taken into consideration for granting bail to the petitioner. In Raneef, supra, cited by the learned counsel for the petitioner, the Hon’ble Supreme Court held: “15. In deciding bail applications an important factor which should be certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr.Manettee in Charles Dicken’s novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille.” 25. A doctor incarcerated for a long period may end up like Dr.Manettee in Charles Dicken’s novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille.” 25. It is settled law that the grant of bail ought not to be denied only on the perceived apprehension by the Court that the accused, if restored to liberty, will tamper with the evidence. There must be some prima facie evidence on record or reasonable and justifiable grounds to believe that in case the benefit of bail is extended to an accused, he is going to misuse his liberty or he would create conditions which are not conducive to hold a fair trial. The Hon’ble Supreme Court in various judgments has confirmed that Bail is the rule and jail is an exception. The object of bail is neither punitive nor preventive but is meant to secure presence of the accused during the trial. 26. 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 POCSO Act also provides time frame to complete the trial. Merely the fact that the offence alleged is under Section 11 of POCSO Act, the petitioner cannot be denied bail on the ground that the offence is serious in nature. 27. 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. 28. In the instant case, as admitted by the prosecution, the investigation is at advance stage. It is also the admitted fact that the petitioner is in custody from 17.4 2021. The primary purposes of bail 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. 29. In Sanjay Chandra v. CBI, reported in (2012) 1 SCC 40 , the Hon’ble Supreme Court observed as follows: “21. 29. 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.” 30. 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. 31. 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 merits 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 bail 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 facie satisfaction of the Court in support of the charge. 32. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the Court in support of the charge. 32. 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 result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 33. 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. 34. To put it shortly, a humane attitude is required to be adopted by a Judge while dealing with the bail 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. 35. It is to be pointed out that the petitioner herein has been charged under Section 11(iv), (v) of the POCSO Act. 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 herein has committed the offence unless the contrary is proved. The alleged involvement of the petitioner herein in the crime cannot now be gone into, as the trial is yet to begin. 36. 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 herein has committed the offence unless the contrary is proved. The alleged involvement of the petitioner herein in the crime cannot now be gone into, as the trial is yet to begin. 36. The trial Court dismissed the bail application holding that there are materials under Section 11(iv) of POCSO Act against the petitioner as he had harassed the victim by threatening her of stopping her education if she did not meet him in private and did not unblock his number. Since the said allegations levelled against the petitioner would involve oral and documentary evidence, the trial Court ought not to have arrived at such finding. 37. The petitioner has also given an undertaking that he will not attempt to Influence any witness or to attempt to tamper any evidence that may be relevant for the present case and to face the complete trial and not flee from justice. Furthermore, in the instant case, the best part of investigation was completed. Therefore, this Court is of the view that on the ground of delay in trial and on the ground of incarceration of the petitioner from 17.4.2021, the petitioner is entitled to be enlarged on bail. 38. 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 fact that there is delay in trial and taking note of the fact that the petitioner is in custody from 17.4.2021 and also in view of the assurance extended on behalf of the petitioner that he shall not hamper or tamper the prosecution witnesses and also there are no criminal antecedents, which would disentitle the petitioner from getting bail, this Court persuaded to grant bail to him. 39. Accordingly, the bail application is allowed and the petitioner is ordered to be enlarged on bail in connection with the FIR Case No.24(4)2021 on the file of Moreh Police Station, subject to the petitioner furnishing a personal bond in the sum of Rs. 39. Accordingly, the bail application is allowed and the petitioner is ordered to be enlarged on bail in connection with the FIR Case No.24(4)2021 on the file of Moreh Police Station, subject to the petitioner furnishing a personal bond in the sum of Rs. 25,000/- with two local sureties in the like sum to the satisfaction of the Special Court (POCSO), Imphal West with the following conditions: (i) The petitioner Johnson Arokiadass; son of K.I. Kasper shall not leave the place of his 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 respondent police daily at 10.30 a.m. until further orders. (iii) If the petitioner has 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 family of the victim or the complainant or any of the prosecution witnesses. (v) He 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. (viii) The Police authorities are directed to expedite the investigation and take necessary steps in accordance with law, as the alleged offence is under the provisions of the POCSO Act, which mandates the time-frame for completion of investigation, trial and final decision. 40. Registry is directed to issue copy of this order to both the parties through their whatsapp/e-mail.