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Meghalaya High Court · body

2022 DIGILAW 40 (MEG)

Kaji Manik Miah v. State of Meghalaya

2022-03-09

W.DIENGDOH

body2022
JUDGMENT 1. On 14th July, 2021 an FIR was lodged before the In-charge, Garobadha Police Outpost to the effect that her younger daughter was found missing from home at around 2:00 PM for which necessary action by the police is prayed for. 2. On receipt of the said FIR, a case was registered as Tura Women P.S. Case No.57(07)21 u/s 363 IPC. However, on the same day, the said missing girl was recovered from Mahendraganj and was reunited with her family. As per procedure, the statement of the girl who was said to be a minor was recorded u/s 161 and also u/s 164 Cr.P.C. Other relevant witnesses were also examined. 3. In course of investigation, the Investigation Officer has thought it fit to add Sections 3(a)/4 of the POCSO Act, 2012 and as such, the case proceeded for further investigation. 4. The petitioner, being apprehensive of arrest in connection with the said Tura Women P.S. Case No.57(07)21 has approached the Court of the learned Special Judge (POCSO), Tura with a prayer for grant of pre-arrest bail, but vide order dated 09.12.2021 the learned Special Court had rejected the application. Accordingly, the petitioner has now approached this Court with an application u/s 438 Cr.P.C for grant of pre-arrest bail. 5. Heard Mr. A.S. Siddiqui, learned Sr. counsel along with Ms. M. K. Sah, learned counsel for the petitioner, who has submitted that the petitioner on coming to know that the police had come looking for him is therefore apprehending that he may be arrested in connection with the said Tura Women P.S. Case No.57(07)21. The fact is that the petitioner had been falsely implicated in the case, though his name was not reflected in the FIR and furthermore, the complainant's daughter was never recovered from his custody but from someone else's house in Mahendraganj. 6. The petitioner is a young man of 21 years with no criminal background and if granted pre-arrest bail, he is willing to cooperate with the investigation and will abide by any terms and conditions to be imposed by this Court. Mr. Siddiqui has therefore, prayed that this petition is made bona fide in the interest of justice and fair play and the same may be allowed. 7. Mr. H. Kharmih, learned Addl. Sr. Mr. Siddiqui has therefore, prayed that this petition is made bona fide in the interest of justice and fair play and the same may be allowed. 7. Mr. H. Kharmih, learned Addl. Sr. GA has submitted that this Court vide order dated 03.03.2022 has directed that the Case Diary be produced before this Court today and accordingly, the same is produced herein. 8. Mr. Kharmih has further submitted that from the contents of the Case Diary, what can be seen is that the Investigating Officer has examined the victim girl as well as the complainant and other witnesses and the victim girl was also further examined u/s 164 Cr.P.C. What is evident is that the victim girl has revealed that she is having a love affair with the petitioner, but because of differences in caste, the family members of the petitioner refused to accept her in the family and she was accordingly taken to the house of one lady at Mahendraganj. There, the petitioner along with his sister-in-law and two others tried to persuade her to return home but she refused. They then threaten to call the police, but the victim girl instead threatens to file a case against them. She was then taken to one hut near the rice field and was told to wait for the petitioner's mother and sister to come. However, in the meantime, the petitioner received a call and immediately left the place. Thereafter, the police came and escorted her to her home. 9. From the narration made above, it can be assumed that the petitioner is involved in the case surrounding the alleged kidnapping of the said victim girl and even a case of sexual assault as is evident from the chargesheet filed by the I/O who has found that the victim was a minor at the time of the incident and that there had been physical sexual contact with the petitioner herein for which Section 3(a)/4 of POCSO Act was added to the case implicating the petitioner herein as an accused. 10. In an application u/s 438 Cr.P.C., the main consideration for the Court to look into is the aspect of apprehension of arrest, if the petitioner could establish apprehension a case under the said section can be made out. 10. In an application u/s 438 Cr.P.C., the main consideration for the Court to look into is the aspect of apprehension of arrest, if the petitioner could establish apprehension a case under the said section can be made out. However, for exercise of powers under the said section, the Apex Court in a catena of cases has issued directions and more particularly, guidelines to aid the competent courts while deciding such cases. In the case of Sidharam Satlinggappa Mhetre v. State of Maharashtra: (2011) 1 SCC 694 at paragraph 112 the factors and parameters have been laid down, the same being reproduced as under: '112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused 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; (iv) The possibility of the accused's likelihood to repeat similar or other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail'. 11. Considering the facts and circumstances of this case, this Court at this juncture would consider it proper to allow the petitioner to contest the allegations against him without custody since apprehension has been found well established as far as the prayer of the petitioner is concerned. 12. Accordingly, this petition is hereby allowed and the petitioner, in the event of his arrest is directed to be released on bail on the following conditions: - i) That he shall not abscond or tamper with evidence or witnesses; ii) That he shall appear in Court as and when required; iii) That he shall not leave the jurisdiction of India without prior permission of the Trial Court; iv) That he shall furnished a personal bond of Rs. 50,000/- (Rupees fifty thousand) only along with two solvent sureties of like amount. 13. With the above, this petition is hereby disposed of. No cost. 14. Registry is directed to return the Case Diary.