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2022 DIGILAW 310 (MEG)

Mittiu G. Momin v. State of Meghalaya

2022-11-22

W.DIENGDOH

body2022
JUDGMENT 1. This is an application for grant of bail under Section 439 Cr.PC to the accused person Shri Yjish D. Sangma, preferred by the petitioner herein who is the father of the said accused person who is still in custody in connection with Special (POCSO) Case No. 8 of 2022 under Section 366A/342/376(1) IPC r/w Section 3(a)/4 POCSO Act, 2012. 2. Initially, the petitioner has caused notice to be issued upon the respondent No. 3, the complainant who has filed the FIR but inspite of receipt of the notice, service confirmed by way of an affidavit of service filed by the petitioner bringing on record this fact, the respondent No.3 has failed to appear before this Court and accordingly this matter shall proceed exparte against the respondent No.3. 3. Heard Mr. K.C. Gautam, learned counsel for the petitioner who has submitted that the petitioner and the accused person are residents of Rongbu village, North Garo Hills District. An FIR dated 03.06.2022 was filed by Shri Lenibarth M. Sangma, before the Kharkutta Police Station, North Garo Hills stating that on 30.05.2022 at about 7:00PM, his minor daughter aged about 17 years had gone out to attend a prayer service in their church located at Upper Rongbu, however, she did not come home that night. 4. On the next day, the complainant was informed that the accused person had taken his daughter to his house where she stayed the whole night with him as they were having an affair. The complainant then went to the house of the accused person and brought back their daughter after which the said FIR was lodged. 5. On receipt of the said information, the police had registered a case being Mendipathar Women PS Case No. 08(06)2022 under Section 342/366A IPC. The Investigating Officer (I/O) has then recorded the statement of relevant witnesses including the alleged victim and the accused person and others and on completion of the investigation has filed the charge sheet on 28.06.2022, finding that a prima facie case is found well established against the accused person under Section 366A/342/376(1) IPC r/w Section 3(a)/4 POCSO Act, 2012. A regular case was then registered as Special (POCSO) Case No. 8/2022 and is now pending before the court of the learned Special Judge (POCSO), North Garo Hills, Resubelpara. 6. A regular case was then registered as Special (POCSO) Case No. 8/2022 and is now pending before the court of the learned Special Judge (POCSO), North Garo Hills, Resubelpara. 6. The learned counsel has further submitted that the accused person has been falsely implicated in the case and is not guilty of the charges levelled against him. As could be seen from the charge sheet, it is seen that the parents of the victim refused to keep the alleged victim in their house nor did they acknowledge the relationship between the accused person and the alleged victim which, according to them has brought shame and disrepute to the family. 7. Again, the learned counsel has submitted that the alleged victim girl in her statement under Section 164 Cr.PC has stated that the accused person is known to her since childhood and that they have been in a relationship as boyfriend and girlfriend since the month of January, 2021 and during their courtship, they have been in a physical relationship. It was only in the month of May this year that the accused person took her to his room and told her that he was in love with someone else and when the girl wanted to go back home, he persuaded her to come back to his house as it was late and so the girl decided to stay at his house that day. The next morning the accused person left for work at Rongjeng and left the girl at his home. Thereafter, her parents came and fetched her from the house of the accused person. 8. The learned counsel has submitted that this is a case of consensual relationship and that the accused person is ready to stand trial and defend his case in court. If granted bail, the accused person will undertake to abide by any conditions to be imposed by this Court and is also willing to produce any surety if so required. 9. Since the charge sheet has already been filed since the month of June, 2022, the case is still at the stage of consideration of charges and as such the accused person having been in judicial custody for about five months or so, it is prayed that he may be enlarged on bail at this juncture. 10. Mr. 9. Since the charge sheet has already been filed since the month of June, 2022, the case is still at the stage of consideration of charges and as such the accused person having been in judicial custody for about five months or so, it is prayed that he may be enlarged on bail at this juncture. 10. Mr. N.D. Chullai, learned AAG appearing on behalf of the State respondents, has submitted that on perusal of the case diary what is evident is that, the accused person and the alleged victim girl have indulged in a physical relationship and the victim girl being a minor, the relevant provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012 are attracted and considering the rigors of the Act vis-à-vis grant of bail coupled with the provision of Section 29 where a person prosecuted under Section 3, 5, 7 & 9 of the Act is presumed to have committed the offence unless the contrary is proved, the accused person is put to strict proof that he has not committed the offence as alleged and consequently, as to whether he is entitled to grant of bail or not as the reverse burden of proof is cast upon him. 11. Another point of argument raised by the learned AAG is that the offences alleged to have been committed by the accused person are very serious in nature and as such, the court considering the nature and gravity of the offence would be constraint to allow an application for grant of bail without very strong and compelling reasons. The case of State of Meghalaya v. Md. Nurul Islam in Criminal Revision Petition No. 8 of 2015 with reference to order dated 11.09.2015 therein, passed by this Court wherein, the Court on consideration of the fact that there was no reference by the Trial Court as regard the fact that there is a prima facie finding of the involvement of the accused person therein in the commission of a serious offence under the POCSO Act and also that the provisions of Section 29 of the said POCSO Act was not taken into account when the bail was granted to the accused person therein, had accordingly, cancelled the bail granted on this ground. 12. 12. In a similar case before the Apex court in Criminal Appeal No. 938 of 2022 in the case of Indresh Kumar v. State of Uttar Pradesh and Anr, the court has cancelled the bail granted holding that the High Court while granting bail have not seriously considered the gravity of the offence and the severity of the punishment involved. 13. It is therefore submitted that this application is devoid of merit and the same is liable to be dismissed. 14. Due consideration has been given to the submission and contention of the parties. The facts as stated above need not be repeated. What is apparent is that the accused person has been in custody since the date of his arrest in the month of June, 2022. That the investigation has also been completed is evident for the fact that the charge sheet has been filed finding the accused person prima facie liable to face trial in connection with the offence indicated therein, therefore, there is no further requirement for interrogation of the accused person in custody or otherwise. 15. At this stage, it would be proper to reiterate the time-tested principle of bail jurisprudence to say that the golden rule is 'bail' and not 'jail', for the reason that a person who is alleged to have been involved in an offence punishable by law has the liberty to defend his case to the best of his ability and though many of his rights may have been curtailed by due procedure of law on the fact that he is in custody, yet his right to defend himself and right to be heard as well as right to appoint a counsel of his choice, amongst others, has not been taken away from him. 16. It is true that bail involving very serious, severe and heinous offences are usually not granted if the penalty of imprisonment is of a considerable length of time, such as imprisonment for life etc. In cases under the POCSO Act, where the provisions are very stringent, including provision under Section 29, the court would circumspectly approach the issue of grant or refusal of bail taking into account the facts and circumstances of each case in consonant with the preposition as has been held in the cases referred to by the learned AAG herein. 17. In cases under the POCSO Act, where the provisions are very stringent, including provision under Section 29, the court would circumspectly approach the issue of grant or refusal of bail taking into account the facts and circumstances of each case in consonant with the preposition as has been held in the cases referred to by the learned AAG herein. 17. In the case of the parties herein, subject to appreciation of evidence to be recorded, prima facie it appears that this is a case of a love relationship gone awry. Even reference to the conduct of the parties i.e., that there has been physical contact between them sexually in course of their relationship has not been denied, though, the element of a consensual nature of the same is also to be considered. 18. Coming back to the principle of bail, it is well settled that the purpose of detaining a person in custody in the course of trial is only to secure his or her attendance at the trial and if such attendance can be assured, other factors being taken into account there is no reason why bail cannot be granted with proper conditions imposed. 19. In the case of Sanjay Chandra v. CBI: (2012) 1 SCC 40 at para 21, 22 & 23, the Hon'ble Supreme Court has observed that: - '21. In bail application, 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. 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. Apart from the question of prevention being the object of a 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 unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. 20. Again, in the case of Dipak Subhashchandra Mehta v. CBI : (2012) 4 SCC 134 at para 32, the Hon'ble Supreme Court has held that: - '32. 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. The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and 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; and (c) prima facie satisfaction of the court in support of the charge. In addition to the same, the court while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted.' 21. Having regard to the facts and circumstances of this case, this Court at this juncture is inclined to allow this petition and to order for release of the accused person on bail on the following conditions: - i. That he shall not abscond or tamper with the evidence and witnesses; ii. That he shall have no contacts whatsoever with the alleged victim girl till the disposal of the case before the Trial Court; iii. That he shall appear before the court as and when required; iv. That he shall not leave the jurisdiction of India without prior permission of the court; and v. 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. 22. Send back the case diary. 23. With the above, this petition is hereby disposed of.