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2022 DIGILAW 165 (MEG)

Ariqul Hoque Azad v. State of Meghalaya

2022-06-23

W.DIENGDOH

body2022
JUDGMENT 1. The applicant has approached this Court with this application made under section 438 Cr.P.C for grant of pre-arrest bail in connection with Tura Women PS Case No. 45(04)22 under section 7/8 POCSO Act. 2. The genesis of the matter relates to an incident which occurred on 09.04.2022 at about 1:00 P.M when one Miss X (name withheld) aged about 13 years came to the shop of the applicant along with her grandmother for the purpose of completing the formalities to obtain her Aadhaar Card, apparently, the shop of the applicant being one of the facilitation centres. However, while the said minor girl was inside the shop and in the process of having her particulars taken, after a while, she came out crying and alleged that the applicant has inappropriately touched her body including her breast, thigh and private parts. On being informed the father of the said victim girl filed an FIR against the applicant and which an FIR was registered as Tura Women PS Case No. 45(04)22 under section 7/8 POCSO Act. 3. The applicant, it appears after the said incident had immediately closed his shop and fled from the scene. 4. In the meantime, on investigation, the Investigating Officer (I/O) had recorded the statement of the victim and other witnesses. The applicant who is the main accused however could not be apprehended. 5. The applicant in the meantime, apprehending arrest in the said case had approached the Court of the learned Special Judge (POCSO), West Garo Hills, Tura with an application for anticipatory bail which was however rejected vide order dated 10.05.2022. Accordingly, the applicant then approached this Court with this instant application. 6. Ms. C. B. Sawian, learned counsel for the petitioner, has submitted that the applicant is innocent and has been falsely implicated in the case as a result of which the police are on the look out to arrest him and as such, apprehending arrest, has accordingly approached this Court with a prayer for grant of pre-arrest bail. It is further submitted that the applicant is the sole bread earner of the family and his wife is eight months' pregnant and in the event of his arrest, his wife who is dependent on him shall suffer tremendous hardship in taking care of herself and the baby. 7. It is further submitted that the applicant is the sole bread earner of the family and his wife is eight months' pregnant and in the event of his arrest, his wife who is dependent on him shall suffer tremendous hardship in taking care of herself and the baby. 7. It is also further submitted that the applicant has no previous criminal record and, in the event, he is enlarged on bail, he would undertake to comply with any conditions imposed by this Court. It is finally prayed that this application may be allowed and in the event of his arrest the applicant may be enlarged on bail. 8. The learned Addl. P.P, Mr. S. Sengupta, has submitted that the case diary as called for by this Court is produced today and that this Court on perusal of the same may pass necessary orders. 9. On consideration of the submission made and on perusal of the case diary, the facts of the case as narrated by the applicant are more or less accurate inasmuch as fact that the alleged victim girl came to his shop for the Aadhaar enrolment formalities, however, though the applicant has denied any wrong doing, the version of the incident narrated by the complainant who is the father of the alleged victim girl and the statement of the alleged victim girl recorded under section 161 as well as under section 164 Cr.P.C would show that an allegation against the applicant has been made that he has inappropriately touched the various parts of the alleged victim's body. 10. This Court on consideration of this application, had vide order dated 13.06.2022 allowed the applicant to go on interim bail with a condition that he shall not abscond and that he should cooperate with the I/O. Pursuant to the said order the applicant had appeared before the I/O and has got his statement recorded. His version of the incident is that while taking the formalities of the girl, the necessary procedure of taking finger prints and also of adjusting the eyes to the machine for the biometric details, and in the process had pressed her finger in the machine and has also requested the girl to adjust her eyes to the machine. However, the girl being frightened, ran off the shop and in confusion with a crowd gathering the applicant apprehending trouble closed down the shop and went away. 11. However, the girl being frightened, ran off the shop and in confusion with a crowd gathering the applicant apprehending trouble closed down the shop and went away. 11. At this juncture, when investigation is underway, nothing can be ascertained as to whether the applicant has indeed committed any offence in this regard. The fact that the applicant has appeared before the I/O has also been noted which indicates that he is cooperative with the investigation. At this point of time, keeping the applicant in custody would perhaps serve no purpose. 12. In the case of 'Sanjay Chandra v. Central Bureau of Investigation' (2012) 1 SCC 49 at paras 21 to 23, the Hon'ble Supreme Court has held that:- '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. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. 23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.' 13. In view of the observation above, this Court is inclined to allow the prayer of the applicant and accordingly the interim bail granted is hereby made absolute. However, apart from the conditions set forth in the said order dated 13.06.2022 the applicant is further directed to comply with the following directions:- i. That he shall not leave the jurisdiction of India during the pendency of the investigation and the trial, if at all. ii. That he shall bind himself by way of a personal bond for an amount of Rs. 30,000/- (Rupees thirty thousand) only along with two sureties of like amount to the satisfaction of the learned Special Judge, (POCSO), West Garo Hills, Tura. iii. That he shall not tamper with evidence and witnesses. 14. In view of the above, this petition is hereby disposed of. No costs. 15. Registry is directed to return the case diary.