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2022 DIGILAW 295 (MEG)

Abul Hossain v. State of Meghalaya

2022-11-09

W.DIENGDOH

body2022
JUDGMENT 1. The petitioner is the brother of the accused person Ayub Islam @ Ayub Khan who is in judicial custody since 29.03.2022 in connection with Spl. (POCSO) Case No. 28 of 2022 under Section 366 IPC r/w Section 5/6 and 13/14 of the POCSO Act, 2012 which case is pending before the court of the learned Special Judge (POCSO), West Garo Hills, Tura. 2. Heard Mr. S.A. Sheikh, learned counsel for the petitioner who has submitted that on admission of this petition before this Court, a direction was issued upon the petitioner to implead the complainant who has filed the FIR and accordingly, the petitioner has taken steps and has also caused notice to be issued upon the said complainant. However, inspite of the notice being received, the complainant has failed to appear before this Court. Therefore, this matter may proceed exparte against the said complainant. 3. The learned counsel for the petitioner has again submitted that an FIR dated 02.11.2021 was filed by one Shri Jyoti Sagar Rabha informing the In-Charge Bogularbhita Police Outpost, West Garo Hills that his wife aged about 18 years was found missing from his home, hence the complaint. Again, on 08.11.2021 another FIR was filed by one Shri Hanendra Rabha before the Officer-In-Charge Tikrikilla Police Station, West Garo Hills alleging that the accused Ayub Khan had circulated through social media some objectionable video clippings involving his minor daughter aged about 14 years. 4. The learned counsel for the petitioner has submitted that there is some confusion about the age of the alleged victim girl as the FIR filed by Shri Jyoti Sagar Rabha has given her age as 18 years, while the other FIR filed by her father has given her age as 14 years. However, this issue has been resolved as the forensic report where the ossification test was conducted came with the opinion from the attending medical officers that her age is above 16 years, but below 18 years. 5. However, this issue has been resolved as the forensic report where the ossification test was conducted came with the opinion from the attending medical officers that her age is above 16 years, but below 18 years. 5. That the accused person and the alleged victim girl are known to each other and in fact were in an intimate relationship is not denied, however, the learned counsel has submitted that from the statement of the alleged victim girl under Section 161 Cr.PC as well as under Section 164 Cr.PC, what can be clearly understood is that she was in a relationship with the accused Ayub Khan and then in the meantime, she was compelled by her family members to marry Shri Jyoti Sagar Rabha, but according to her, she did not love him and fled away from her marital home. 6. In the meantime, one boy (name withheld as he is a juvenile) approached her with an offer of marriage, but since she did not have any feelings for him, she went to Shri Ayub Khan and made a video recording of both of them sleeping with clothes on. This video was sent to the boy who had approached her through facebook, but the same was uploaded on social media. The blame was fastened upon Shri Ayub Khan and he was made to give some money to her father and also to give an undertaking that he should not contact the girl. However, the girl has stated that she is in love with Ayub Khan and she will marry him as soon as she reached the age of 18 years. 7. On the basis of the statement made by the alleged victim girl, the charges against the accused Ayub Khan are baseless and having been in custody for a number of months, the learned counsel has submitted that he may be allowed to be released on bail with any conditions to be imposed by this Court. 8. Mr. S. Sengupta, learned Addl. PP has submitted that the case diary has been submitted before this Court and on perusal of the same, necessary orders may be passed in this regard. 9. Having heard the learned counsel for the parties and on perusal of the case diary, the facts of the case as stated above need not be repeated. Mr. S. Sengupta, learned Addl. PP has submitted that the case diary has been submitted before this Court and on perusal of the same, necessary orders may be passed in this regard. 9. Having heard the learned counsel for the parties and on perusal of the case diary, the facts of the case as stated above need not be repeated. The statement of the alleged victim girl both under Sections 161 and 164 Cr.PC respectively, revealed that she is known to the accused person and that they were in a relationship some time ago. The allegation that an obscene or improper video recording was circulated implicating the accused person, which video has damaged the reputation of the girl is a matter of evidence which has to be scrutinised at the time of the trial. 10. The Investigating Officer appears to have completed the examination of all the relevant witnesses and keeping the accused person in custody at this point of time may no longer be necessary. 11. Offences under the POCSO Act are indeed serious which affects the physical and mental faculty of the victim, for which in some cases, even seeing or meeting the alleged perpetrator may have a traumatic effect on the victim. In this case, however, the victim has clearly indicated that she is comfortable in the company of the accused and has also expressed that she is willing to marry him once she comes of age. This again, is a matter of evidence and cannot be believed or dis-believed at this stage. Be that as it may, under the peculiar facts and circumstances of this case, this Court is of the considered opinion that there is no reason why the accused should be confined in custody at this juncture. 12. Accordingly, the prayer of the petitioner for grant of bail is hereby allowed. The accused Ayub Khan is directed to be released on bail, if he is not wanted in any other cases on the following conditions: - 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 leave the jurisdiction of India without prior permission of the court; and iv. That he shall appear before the Investigating Officer as and when required; iii. That he shall not leave the jurisdiction of India without prior permission of the court; and iv. That he shall furnished a personal bond of Rs.20,000/- (Rupees twenty thousand) only with two solvent sureties of like amount to the satisfaction of the concerned court. 13. Registry is directed to send back the case diary. 14. Petition disposed of. No costs.