Shri Dlet Nongdhar v. State of Meghalaya & Anr.

: Mr. S. Sengupta, Addl. PP. i) Whether approved for reporting in Yes/No Law journals etc.: ii) Whether approved for publication in press: Yes/No O R D E R

1. An FIR dated 22.06.2022 was lodged by the respondent No.2 herein who is the doctor in charge of Mawrynkneng PHC, East Khasi Hills. The contents of the same reveals that on 20.06.2022, a woman brought two of her minor daughters aged about 4 years 10 months and another who is about 5 months to the PHC for examination on the complaint that they had been sexually assaulted approximately on

10.06.2022. On being advised to file and FIR, the woman sought time to 1 consult with her family members but did not come back to the PHC leading to the said Doctor in-Charge to file the same.

2. On receipt of the said complaint, police then registered a criminal case being Mawrynkneng P.S. Case No. 15(6)2022 under Section 5(m)/6 POCSO Act. The alleged perpetrator Shri. Papu Das was arrested on

23.06.2022 and is still in judicial custody till date.

3. Heard Mr. M.F. Quereshi, learned counsel for the petitioner who has submitted that the petitioner though not immediately related to the accused person, however, since the accused person was raised by him in his home, he is treated as his own son and as such has filed this application under Section 439 Cr.P.C for grant of bail as regard the said accused person Shri. Papu Das.

4. The learned counsel has also submitted that the accused person was falsely implicated in the case since he has not committed any offence attracting the provisions of the POCSO Act. Infact, from the materials on record, it could be assumed that the mother of the alleged victim when advised to file a complaint before the police had refused to do so on the ground that she wanted to consult her family members, however, the respondent No. 2 has taken upon herself to lodged this said FIR.

5. The learned counsel has further submitted that the matter was investigated and a charge sheet was filed by the Investigating Officer(I/O) 2 who in course of his investigation has examined a number of witnesses and having done so, has come to a finding that a prima facie case is found well established against the accused person for offences under Section 7/8 of the POCSO Act.

6. It is also submitted that the accused has approached the Trial Court by way of bail applications seeking grant of bail but the same was rejected and finally, a fourth bail application was preferred vide Bail Application No. 65/2022, but the prayer was rejected by the learned Trial Court vide order dated 23.08.2022 on the ground that there is no change of circumstances from the previous bail applications.

7. The learned counsel has submitted that the fact that initially the case against the accused was registered citing Section 5(m)/6 of the POCSO Act, as the offence alleged to have been committed by the accused, however, when the charge sheet was finally filed, the I/O has come to a finding that the accused has committed an offence under Section 7 of the POCSO Act punishable under Section 8 of the same. Therefore, even if one looks at the quantum of possible penalty, the punishment for the same would be a term of imprisonment of about 3(three) years which may extend to 5(five) years as opposed to the punishment prescribed under Section 6 of the said Act which prescribes a punishment of imprisonment of not less than 20 years which may extend to life imprisonment. This, 3 according to the learned counsel for the petitioner can be termed as a change in the circumstances.

8. Since the charge-sheet has already been filed, therefore, the process of investigation is over and there is no scope for the accused to tamper with the evidence or to hamper the progress of investigation and as such, at this juncture the accused may be allowed to go on bail. Sufficient surety will be provided and adherence to any conditions imposed will be strictly abided by.

9. In support of his submission, the learned counsel has cited the case of Sanjay Chandra v. Central Bureau of Investigation; (2012) 1 SCC 40, para 38 & 46 which reads as follows: - “38. In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under: (SCC.pp.31 & 32, paras 18 & 22) "18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535- 36, para 11) 4 "11. The law in regard to grant or refusal of bail is very well settled. 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 bail to consider among other circumstances, the following factors 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 facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas.)"

22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary."

46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.”

10. Mr. S. Sengupta, learned Addl. PP in reply has submitted that the relevant case record is produced before this Court today on perusal of the same, particularly the statement of the alleged minor victim the prayer for 5 grant of bail may not be considered keeping in mind the fact that there is a strong prima facie evidence against the accused and accordingly his detention in custody is required to ensure the safety of the minor victim.

11. This Court have heard the submission of the parties and the contents of the petition as well as the case record, including the charge sheet and the statement of the victim as well as of the accused recorded under Section 164 Cr.P.C have been perused.

12. As submitted by the learned counsel for the petitioner, initially when the incident was brought to the notice of the police, a case under Section 5(m)/6 of the POCSO Act was registered and the accused was arrested on the basis of such accusation. However, after the investigation is completed, the I/O has come to a finding that a case has been made out under Section 7/8 of the POCSO Act. This is indeed a change in the circumstances which has occurred while the accused was in custody.

13. The fact that the own mother of the minor victim who has taken the said minor to the PHC for medical check-up has failed to file the FIR on being so advised, would go to show that the mother as well as the family members of the alleged minor victim did not find it fit to file a complaint, thereby conveying an impression that the incident is not as serious as it was portrayed. However, it is a matter of evidence which will eventually reveal as to what actually happened. 6

14. This Court while acknowledging the time-tested principles for grant or refusal of bail as could be seen in the case of Sanjay Chandra (supra) at para 38, noted above, the observation of the Hon’ble Supreme Court at para 46, also noted above is found to be relevant as far as this instant case is concerned inasmuch as since the charge sheet has already been filed against the accused and pre-trial detention is not always the objective while prosecuting criminal case. At para 21 of the said Sanjay Chandra case, the Hon’ble Supreme Court has opined that the object of bail is neither punitive nor preventative but it is to secure the appearance of the accused person at his trial and further 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.

15. This being the case, this Court is of the considered opinion that the accused may be enlarged on bail at this juncture to enable him to prepare his defence at the trial, albeit with stringent conditions attached to it.

16. Accordingly, this petition is allowed. The accused Shri. Papu Das is hereby directed to be released on bail, if not wanted in any other case, on the following conditions: i. That he shall not abscond or tamper with the evidence and witnesses; 7 ii. iii. iv. v. That he is not to have any contacts with the alleged minor victim during the pendency of the trial; That he shall appear before the Trial Court as and when required; That he shall not leave the jurisdiction of India without prior permission of the court; and That he shall furnished a personal bond of ₹ 30,000/- (rupees thirty thousand) only with two solvent sureties of like amount to the satisfaction of the concerned court.

18. Registry is directed to send back the case record. Petition disposed of. No costs. Judge Meghalaya 07.12.2022 “N. Swer, Stenographer” 8