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2022 DIGILAW 152 (MEG)

Donlang Nongsteng v. State of Meghalaya

2022-06-09

W.DIENGDOH

body2022
JUDGMENT 1. The petitioner was arrested on 21.09.2021 being named in the FIR dated 21.09.2021 filed by one Smti. Mareenda Kharkongor in which FIR an allegation was made that the accused had sexually harassed the minor son of the complainant. On being arrested, the petitioner was eventually forwarded to judicial custody and is still in custody till date. 2. On investigation launched and on completion of the same, the Investigating Officer has filed the charge sheet No. 27 of 2021 on 20.11.2021. The opinion of the I/O upon consideration of the facts and circumstances including the statement of the complainant, the victim and other relevant witnesses is that a prima facie case for an offence under Section 5 (1)/ 6 POCSO Act read with Section 506 IPC has been made out against the petitioner herein, for which he is send up for standing trial before the competent court. 3. In such a situation, the petitioner has, at the first instance approached the Court of the learned Special Judge (POCSO) Shillong seeking bail on the grounds stated therein, and which application was rejected vide order dated 01.11.2021. Subsequently, the petitioner has again moved two more bail applications, but they were also rejected vide order dated 07.02.2022 and 10.03.2022 passed by the learned Special Judge (POCSO) Shillong. Not exhausting his legal remedy, the petitioner has accordingly approached this Court with this instant application under Section 439 Cr.P.C with a prayer for grant of bail. 4. Mr. C.H. Mawlong, learned counsel for the petitioner has submitted that the petitioner was falsely implicated in the case and will prove his innocence in course of the trial. 5. It is also submitted that the FIR is factually defective as there was no specific date of incident cited, but according to the alleged victim, the incident had occurred in the month of January, 2021 and thereby, there was a delay of about 8(eight) months in filing the FIR without any explanation thereof. 6. Even the medical report based on the medical examination of the alleged victim and the petitioner would also show that there is nothing material to prove that the alleged offence of sexual assault was perpetrated upon the alleged victim. Therefore, no case can be made out under the POCSO Act, it is further submitted. 7. 6. Even the medical report based on the medical examination of the alleged victim and the petitioner would also show that there is nothing material to prove that the alleged offence of sexual assault was perpetrated upon the alleged victim. Therefore, no case can be made out under the POCSO Act, it is further submitted. 7. The fact that the charge sheet has been filed in this case, therefore, the investigation has been completed and the petitioner has been made to stand trial and as such, he may be allowed to defend his case on being enlarged on bail with any conditions that this court may imposed. 8. It is also the submission of the learned counsel that since the charge sheet was already filed, there is no scope for the petitioner to influence the Investigating Agency or to interfere with the witnesses or tamper with the evidence and also the fact that the petitioner is a permanent resident of the State, this Court may be pleased to allow the petitioner to go on bail. 9. Per contra, Mr. R. Gurung, learned Addl. PP while opposing this application on behalf of the State respondent has submitted that the records, wherein the statement of the victim was recorded would clearly show that a strong prima facie case has been made out against the petitioner and the offence being very serious, this court on consideration of the relevant materials on record may not allow this petition. 10. This court has given due consideration to the submissions made and has also perused the petition as well as the relevant records of the case which was duly produced on being called for. 11. The fact that the petitioner is in custody since the date of his arrest is borne out from records and also the fact that he has preferred as many as three previous bail applications which were all rejected is also a matter of record. 12. 11. The fact that the petitioner is in custody since the date of his arrest is borne out from records and also the fact that he has preferred as many as three previous bail applications which were all rejected is also a matter of record. 12. The previous orders wherein the bail application of the petitioner was rejected, though not necessarily required to be considered by this court, however would show that the learned Special Judge at the first instance has rejected the application on the ground that the investigation is still not completed and the successive bail applications thereafter were rejected on the ground that no fresh circumstances was shown to enable the court to consider the same and to pass necessary orders. 13. It is well settled that any number of bail applications can be moved by the accused to secure bail if not already granted, however it is also trite that the successive bail application has to indicate fresh grounds of circumstances to enable the court to appreciate the circumstances under which bail may be granted to the applicant. Without citing any fresh circumstances, the court may not be able to grant bail since such an order may be deemed to be an order in review which is not allowed under criminal jurisprudence. 14. An application for bail after the charge sheet has been filed is also not a bar for consideration of the same, in fact at this stage, the investigation would have been completed and the statement of the relevant witnesses have been recorded and the opinion of the I/O duly recorded and forwarded to the competent court and as such, at such a stage, bail could have been considered, taking all relevant factors into account. 15. However, if the offence is very serious in nature with the corresponding penalty of even life imprisonment or a term of sentence exceeding 10(ten) years or more as in the present case where the punishment under Section 6 of the POCSO Act for the related offence is a sentence for imprisonment of not less than 20(twenty) years which may extend to life imprisonment, the court find it more difficult to release the accused on bail, based on the materials recorded in the charge sheet. 16. 16. As stated, this court on perusal of the records has noted the statement of the alleged victim and the same prima facie appears credible, of course subject to scrutiny by way of evidence, but the allegations made by the victim would indicate that the petitioner has committed a very grave offence. 17. At this stage, the applicability of the provision of Section 29 of the POCSO Act, 2012 to the case of the petitioner has also to be considered, inasmuch as, since he has been prosecuted for an offence involving Section 5 of the said Act, the Special Court shall presume that such person has committed the offence unless the contrary is proved. The onus to discharge the burden of proof is upon the petitioner which can only be brought out in evidence. 18. Considering the overall implication, the petitioner not having been able to offer any fresh circumstances for bail to be granted after the charge sheet has been filed and considering the serious nature and gravity of the alleged offence, this court is not inclined to allow this petition at this juncture. 19. Resultantly, this petition is hereby dismissed as devoid of merits and stands disposed of. 20. It is made clear that the views expressed in this petition should not in any way influence the proceedings of the trial which has to be carried out in accordance with law, giving the trial court a free hand to deal with the matter. 21. Registry is directed to send back the Lower Court case record.