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2022 DIGILAW 87 (MAN)

Abujam Tombisana Singh v. State of Manipur

2022-05-24

M.V.MURALIDARAN

body2022
JUDGMENT 1. This petition has been filed by the petitioner under Section 439 Cr.P.C to enlarge him on bail in connection with the Special Trial (POCSO) Case No. 68 of 2020 pending on the file of the Fast Track Special Court No 1, Manipur. 2. The case of the prosecution is that on 29.8.2018, the complainant, father of the victim, lodged a complaint with the Officer-in-Charge of Wangoi Police Station stating that his daughter, aged 15 years, was staying at the Boarding and Coaching Centre at Samurou Awang Leikai for her preparation of HSLC Examination, 2018. The said Boarding and Coaching Centre was run by the petitioner/accused, who is also the uncle of the complainant. While the victim was staying at the said Boarding and Coaching Centre, on 13.3.2018 at about 3.30 a.m., the accused raped the victim many times by threatening her that he will make her fail the HSLC Examination. The accused also threatened the victim not to disclose the act committed by him. Based on the said complaint, the respondent police registered an FIR bearing No.43(8)2018 under Section 506 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act'), upgraded to Section 6 of the said Act against the petitioner/accused. 3. Mr. L. Seityandra, the learned counsel for the petitioner submitted that the petitioner is an innocent and has been falsely implicated in the alleged crime. Further, there are more than 10 female students at the boarding run by the petitioner and the students studied in group and no separate or isolated study rooms were maintained by the petitioner. In fact the house of the victim was just adjacent to the boarding and the joint family of the petitioner was also residing adjacent to the boarding. He would submit that all the female students were sleeping in the same room and the beds were joined together and it is absolutely not possible that the petitioner could enter and raped the victim many times without waking up the other female boarders. 4.Th. learned counsel further submitted that the petitioner is suffering from acute Hemorrhoids and Thrombosed Perianal Varices and several other ailments and proper treatment could not be taken in the judicial custody. The learned counsel submitted that the petitioner has been incarcerated for more than three years and the trial has not been commenced. 4.Th. learned counsel further submitted that the petitioner is suffering from acute Hemorrhoids and Thrombosed Perianal Varices and several other ailments and proper treatment could not be taken in the judicial custody. The learned counsel submitted that the petitioner has been incarcerated for more than three years and the trial has not been commenced. In such circumstances, the learned counsel prayer for bail. 5. Per contra, Mr. H. Samarjit, the learned Additional Public Prosecutor submitted that on interrogation, the petitioner admitted to have committed the offence charged against him. The petitioner disclosed that he was a teacher at the Little Master English School, Samurou and also running Boarding and Coaching Centre at his house located at Samurou Awang Leikai. He further disclosed that he molested the victim girl many times inside his house which was used as a Boarding and Coaching Centre. After the petitioner sexually assaulted the victim two times, he threatened the victim not to disclose the sexual harassment and sexual assault committed by him. 6. The learned Additional Public Prosecutor further submitted that investigation completed and charge sheet dated 23.9.2018 has been filed and the case is being proceeded as Special Trial Case No.68 of 2020 before the learned Fast Track Special Court No.1, Manipur. He urged that considering the evidence gathered during the investigation, there is every likelihood of the petitioner being convicted of the offences charged against him. He further submitted that if the petitioner is released on bail, there is likelihood of committing similar offence, as he had many negative remarks from the inhabitants of his locality. There is also likelihood of influencing prosecution witnesses and hampering the trial. 7. This Court considered the submissions raised by the learned counsel for the petitioner and the learned Additional Public Prosecutor and also perused the materials available on record. 8. The case of the prosecution is that on 13.03.2018, the petitioner raped the victim girl, who was staying at his Boarding and Coaching Centre at Samurou Awang Leikai and the petitioner also threatened the victim not to disclose the act committed by him. Based on the complaint dated 29.8.2018 lodged by the father of the victim, the Wangoi Police registered an FIR against the petitioner under Section 4 upgraded to Section 6 of the POCSO Act and under Section 506 IPC. 9. Based on the complaint dated 29.8.2018 lodged by the father of the victim, the Wangoi Police registered an FIR against the petitioner under Section 4 upgraded to Section 6 of the POCSO Act and under Section 506 IPC. 9. According to the prosecution, the investigation has completed and charge sheet has also been filed and the case has been taken on file as Special Trial (POCSO) Case No.68 of 2020 on the file of the Fast Track Special Court No.1, Manipur. However, the trail has not commenced. 10. The petitioner was arrested on 29.8.2018 and he was in custody till date. The bail application moved by the petitioner before the Fast Track Special Court No.1, Manipur was rejected by the order dated 11.12.2020. The petitioner seeking bail mainly on the ground of his illness. According to the petitioner, he is suffering from acute Hemorrhoids and Thrombosed Perianal Varices and also other ailments and proper treatment could not be done in the judicial custody. The petitioner has also produced a report of the Medical Officer of the Manipur Central Jail, Sajiwa to show that he needs required treatment from a well-equipped health institute where special facilities are available. 11. On a perusal of the report of the Medical Officer dated 19.10.2020, it is clear that the petitioner needs treatment outside the jail, as proper treatment could not be given due to Covid-19 pandemic. 12. At this juncture, the learned Additional Public Prosecutor submitted that by stating the same ground, the petitioner has filed bail application before the trial Court and the same was rejected. When the Medical Officer of the Jail himself stated that the petitioner needs outside treatment for his ailment, rejecting the bail on the ground that the jail authorities are making necessary arrangement for the treatment of the petitioner in JNIS hospital as and when necessary is not appropriate. Admittedly, the petitioner is in judicial custody for more than 3 1/2 years. 13. It is settled law that an order refusing an application for bail does not necessarily preclude another on a later occasion giving more materials, further developments and different considerations. While the Court should take into account the circumstance under which the earlier bail application was rejected, it cannot be said that the Court is barred from second consideration at a later stage. 14. While the Court should take into account the circumstance under which the earlier bail application was rejected, it cannot be said that the Court is barred from second consideration at a later stage. 14. As stated supra, in the order dated 11.12.2020 of the trial Court rejecting the bail petition, it has been stated that there is no merit in granting bail to the petitioner on medical ground. When the Medical Officer opined that the petitioner needs better treatment from a well equipped health institution, the trial Court ought not to have rejected the bail application of the petitioner. 15. Coming to the ground for rejection of the bail by the trial Court - gravity of the offence, spirit of the POCSO Act, this Court is of the view that the merits of the offence alleged against the petitioner cannot now be gone into. It is true that the offence committed by a person under POCSO Act should not be enlarged on bail like other offences. 16. It is settled that the grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated to a large extent by the facts and circumstances of each particular case. In the case on hand, the petitioner seeks bail mainly on the ground of his illness, which fact was also evident from the report of the Medical Officer produced by the petitioner along with the bail petition. It is to be noted that no contra medical records have been produced by the prosecution. 17. It appears that the offence alleged was dated 13.03.2018 and the complaint was lodged on 29.8.2018 and the petitioner was arrested on 29.8.2018. It is not the case of the prosecution that the petitioner is delaying the trial of the case and according to the petitioner, there is no question of hamper or tamper with any prosecution evidence after he is released on bail. 18. It is not the case of the prosecution that the petitioner is delaying the trial of the case and according to the petitioner, there is no question of hamper or tamper with any prosecution evidence after he is released on bail. 18. In Alakh Alok Srivasta v. Union of India and others, (2018) 17 SCC 291, the Hon'ble Supreme Court directed for constitution of Special Courts to deal with the cases under the POCSO Act and issued direction to the High Courts to give suitable Instructions to the Special Courts to fast track the cases by not granting unnecessary adjournments and following the procedure laid down in the POCSO Act and complete the trial in a time bound manner or within a specific time frame under the Act. 19. Further, as per Section 35 of the POCSO Act, evidence of the victim/child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and the reason for delay, if any, shall be recorded by the Special Court. The provision of the POCSO Act further provides that the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence. 20. In the instant case, there is nothing on record to show that the petitioner is delaying the trial of the case. May be, due to Covid-19 pandemic and the related lockdowns and also the restricted functioning of the Courts during pandemic, the trial is being delayed. However, when the under-trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution of India is violated. Every person, detained or arrested, is entitled to speedy trial and the Act also provides time frame to complete the trial. Merely the fact that the offence allegedly committed by the petitioner was registered under Section 4 of the POCSO Act, upgraded to Section 6 of the Act, he cannot be denied bail on the ground that the offence is serious in nature. 21. In Babba v. State of Maharastra, (2005) 11 SCC 569 , the Hon'ble Supreme Court held that when there is a delay in the trial, bail should be granted to the accused. In the instant case, admittedly, there is a delay in the trial. 22. 21. In Babba v. State of Maharastra, (2005) 11 SCC 569 , the Hon'ble Supreme Court held that when there is a delay in the trial, bail should be granted to the accused. In the instant case, admittedly, there is a delay in the trial. 22. The petitioner is not well and he needs better treatment outside the jail. The right to ball is not to be denied merely because of the sentiments of the society and/or community against the accused. The law is well settled that the primary purposes of ball in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. 23. In Sanjay Chandra v. CBI, (2012) 1 SCC 40 , the Hon'ble Supreme Court observed as follows: '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.' 24. Time and again, the Hon'ble Supreme Court as well as this Court held that bail is the rule and committal to jail is an exception. The Courts have also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution of India. 25. The principles relating to grant or refusal of bail have been stated in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Kalyan Chandra Sarkar (supra), the Hon'ble Supreme Court observed that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. 25. The principles relating to grant or refusal of bail have been stated in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Kalyan Chandra Sarkar (supra), the Hon'ble Supreme Court observed that 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 merit 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. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting ball to consider among other circumstances and the following facts also before granting bail; they are: (a) The nature of accusation and the 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. (c) Prima face satisfaction of the Court in support of the charge. 26. In Dataram Singh v. State of Uttar Pradesh and another, (2018) 3 SCC 22 , the Hon'ble Supreme Court observed that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences, but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correctional home is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 27. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 27. Thus, it is clear that grant or denial of bail is entirely the discretion of the Judge considering the case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by the Hon'ble Supreme Court as well as by the High Courts in the country. 28. To put it shortly, a humane attitude is required to be adopted by a Judge while dealing with the ball application. Even if the offence is a serious offence, requires a humane treatment by the Court. Humane treatment to all including an accused is requirement of law. Furthermore, a prisoner, who is suffering from an ailment, has to be given due treatment and care while in prison. 29. In the case on hand, the petitioner was aged more than 45 years and according to the health status of the petitioner submitted by the Medical Officer of the Central Jail, he is suffering from acute Hemorrhoids and Thrombosed Perianal Varices. It would be better for him if he receives treatment from a well-equipped hospital outside the jail as proper treatment could not be given due to Covid-19 situation in the jail. Therefore, this Court is of the view that both the ground for long custody of more than 3 1/2 years in jail and on medical ground, the petitioner is entitled to be enlarged on bail, though the offence allegedly committed by him is grave in nature. 30. The petitioner has been charged under Section 4, upgraded to Section 6 of the POCSO Act, which entails a punishment of not less than seven years, but which may extent to imprisonment for life with fine. The learned counsel for the petitioner submitted that the petitioner is innocent to the alleged crime. On the other hand, it is the submission of the learned Additional Public Prosecutor that under Section 29 of the POCSO Act, it is presumed that the petitioner has committed the offence unless the contrary is proved. The innocence and the alleged involvement of the petitioner in the crime cannot now be gone into, as the trial is yet to begin. The innocence and the alleged involvement of the petitioner in the crime cannot now be gone into, as the trial is yet to begin. Therefore, as stated supra, this Court has not delved into the merits of the case. 31. It is true that victims of POCSO Act are suffering and facing social stigma, agony and trauma because of the occurrence and could not recover completely from the said heinous incident. In some of the cases, the minor victims are suffering not only mental trauma, agony, social ostracisation, but also withdrawn from the society. However, considering the petitioner's medical condition, which is confirmed by the medical status report, which shows that the petitioner suffers from acute Hemorrhoids and Thrombosed Perianal Varices and in view of the assurance extended on behalf of the petitioner that he shall not hamper or tamper the prosecution witnesses, this Court persuaded to grant bail to the petitioner for taking better treatment outside the jail for his ailment. 32. Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in connection with the Special Trial (POCSO) Case No.68 of 2020 on the file of the Fast Track Special Court No.1, Manipur, subject to his furnishing a personal bond in the sum of Rs. 25,000/- with two local sureties in the like amount to the satisfaction of the trial Court with the following conditions: (i) The petitioner shall not leave the place of residence without permission of the trial Court and shall ordinarily reside at a place of residence and the complete address of such place shall be furnished to the trial Court at the time of release. (ii) The petitioner is directed to report before the respondent Police daily at 10.00 a.m. for a period of two weeks. (iii) The petitioner shall appear before the trial Court on all hearing dates and shall co-operate for speedy disposal of the case. (iv) If the petitioner has a passport, he shall also surrender the same to the trial Court. (v) The petitioner shall not contact nor visit nor threaten nor offer any inducement to the victim or the complainant or any of the prosecution witnesses. (vi) The petitioner shall not tamper with evidence nor otherwise indulge in any act or omission that would prejudice the proceedings in the matter. (v) The petitioner shall not contact nor visit nor threaten nor offer any inducement to the victim or the complainant or any of the prosecution witnesses. (vi) The petitioner shall not tamper with evidence nor otherwise indulge in any act or omission that would prejudice the proceedings in the matter. (vii) It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the prosecution shall be free to move this Court for cancellation of the bail. 33. The learned Special Judge, Fast Track Court No.1, Manipur is directed to complete the trial of the case on day to day basis within a period of six months from the date of receipt of a copy of this order and send a report to this Court within ten days thereafter. 34. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of the present bail petition.