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Meghalaya High Court · body

2022 DIGILAW 275 (MEG)

Moon Ali v. State of Meghalaya

2022-10-18

W.DIENGDOH

body2022
JUDGMENT 1. An FIR was lodged by the respondent No. 2 before the Officer In-Charge, Mahendraganj Police Station on 09.06.2022 by Shri. Ripon Sarkar with a report that his sister aged about 17 years was found missing and is suspected to be having a relationship with the petitioner herein and they are suspected to be staying at Pubergaon I, South Salmara Mankachar, Assam. 2. On receipt of the said FIR, the police registered Ampati Women P.S. Case No. 6(6) of 2022 under Section 366A IPC read with Section 5(l)/6 POCSO Act. 3. The petitioner who is the main accused in the said FIR has moved an application for grant of pre-arrest bail before the learned Special Judge, POCSO, South West Garo Hills District, Ampati which was rejected vide order dated 26.07.2022. 4. In due course, the petitioner has then approached this Court with this instant application under Section 438 Cr.PC for grant of pre-arrest bail in the said Ampati Women P.S. Case No. 6(6) of 2022. 5. Heard Mr. S. A. Sheikh, learned counsel for the petitioner who has submitted that the petitioner has been implicated in the said Ampati Women P.S. Case No. 6(6) of 2022 and as such, apprehending arrest has approached this Court with this application. 6. It is submitted that there is no question of kidnapping or sexual assault perpetrated against the alleged minor victim girl as the relationship between the petitioner and the girl is a love relationship and for which the parties have decided to get married and on 10.06.2022 as agreed, the petitioner went to the residence of the girl and together they left for Phulbari and from there, went on by boat to Dhubri. Only when they saw some policemen and were frightened that the petitioner, on 14.06.2022 accompanied the girl till Mankachar PS where she was brought by the police to Ampati. 7. The learned counsel has further submitted that the girl is more than 17 years but less than 18 years and as such her decision to go with the petitioner and to cohabit with him on the understanding that they will soon get married, is a well thought out decision and there being no actual violence committed or sexual assault perpetrated by the petitioner, therefore the petitioner cannot be implicated in the said case. However, since it is reliably learned that the police are looking for the petitioner, as such, he has approached this Court with this instant application with a prayer for grant of pre-arrest bail. 8. The learned counsel for the petitioner has also submitted that in the order of the learned Special Judge, POCSO, SWGH, Ampati it has been noticed that the statement of the alleged victim was recorded under Section 161 and Section 164 Cr.PC in which she has clearly stated that she is in a love relationship with the petitioner and that they plan to get married and therefore, the sexual relationship was consensual. 9. In view of such circumstances, it is prayed that the petitioner may be allowed pre-arrest bail and in the event of his arrest, he may be released on bail on any terms and conditions as deemed fit to be imposed by the Court. 10. Mr. H. Kharmih, learned Addl. PP has submitted that the copy of the case diary as directed is duly produced today and the same may be perused by this Court. 11. Mr. Kharmih has also submitted that from the records it is clearly seen and not denied by the petitioner or the victim girl that they had physical sexual relationship which is clearly an illegal action inasmuch as sexual relationship with a minor cannot be condoned under the POCSO Act and as such, at this juncture the petitioner may not be allowed to go on pre-arrest bail. 12. Upon hearing the parties, this Court on the basis of the averments made in this application and on perusal of the case diary produced today has observed that the petitioner and the alleged victim girl are in a love relationship and they have also vowed to get married when the girl come of age. This is evident from the statement of the girl under Section 161 and Section 164 Cr.PC. 13. The contention of the prosecution that since the girl is a minor her consent as regard sexual intercourse or relationship cannot be accepted as legal consent and therefore, the petitioner, by his own admission has committed the offence alleged and the same being serious in nature, at this point of time his prayer for pre-arrest bail may not be allowed. 14. 14. This Court has given due consideration to the submission and contention of the rival parties and has also perused the application as well as the case diary. 15. The provision of Section 438 (1) Cr.PC reads as follows: '438 (1). Direction for grant of bail to person apprehending arrest.- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) The nature and gravity of the accusation; (ii) The antecedents of the applicant including the fact as to whether he 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; and (iv) Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, Either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.' 16. The heading of the provision itself speaks of direction for grant of bail to person apprehending arrest. Such prayer may be allowed by the court after taking into consideration the factors indicated therein. 17. As far as the case involving the petitioner is concerned, since he is already a named accused, not having been arrested, the apprehension of arrest is realistic. 18. As could be understood from the submission of the parties as well as from the materials found in the case diary, the fact that the alleged victim girl has clearly stated that she is in a love relationship with the petitioner, the direction of the trial will depend on the evidence adduced. 18. As could be understood from the submission of the parties as well as from the materials found in the case diary, the fact that the alleged victim girl has clearly stated that she is in a love relationship with the petitioner, the direction of the trial will depend on the evidence adduced. However, as far as the prayer for bail is concerned, this Court is of the opinion that if enlarged on bail, there is no likelihood of the accused/petitioner intimidating or threatening the alleged victim girl or witnesses. 19. On an overall consideration of the matter, this Court agrees that there is an apprehension of arrest for which the petitioner is liable to be protected by virtue of a court's order. 20. Accordingly, this application is allowed. In the event of his arrest, the petitioner/accused is directed to be released on bail on the following conditions, provided he is not wanted in any other case: i. That he shall not abscond or tamper with the evidence and witnesses; ii. That he shall appear before the Investigating Officer as and when required; iii. That he shall not to leave the jurisdiction of India without prior permission of the court; and iv. That he shall furnished a personal bond of Rs. 30,000/- (rupees thirty thousand) only with two solvent sureties of like amount to the satisfaction of the concerned court. 21. With the above, this petition is disposed of. No costs.