Oparna Dopi Sangma v. State of Uttarakhand

Learned counsel for the State, Mr. Girish Chandra Joshi, A.G.A. Hon’ble Ashish Naithani, J. The present application under Section 483 of BNSS has been filed by the applicant Oparna @ Dopi Sangma seeking bail in connection with Case Crime No. 290 of 2021, under Sections 376, 120B of Indian Penal Code and Sections 16/17 of Protection of Children from Sexual Offences Act, registered at Police Station Nehru Colony, District Dehradun.

2. The factual matrix of the case, as emerging from the record, reveals that the applicant has been in judicial custody since July 24, 2021. The State’s case hinges on an FIR registered on March 28, 2021, on the complaint of one Reena, mother of the victim minor girl, alleging that her daughter was subjected to sexual assault by co-accused Janardhan Binjola, the founder of Jagat Jeevan Jyoti Peeth, where the victim was residing in a hostel. The applicant, who was working as a cook in the said hostel, has been implicated for allegedly facilitating the sexual assault by directing the victim to comply with the co-accused's demands. The victim, in her disclosure, stated that when she complained to the applicant (referred to as First Bail Application No.1862 of 2024-----Oparna @ Dopi Sangma vs State of Uttarakhand 1 Ashish Naithani J. 'Oparna Aunty') about the inappropriate behaviour of the co-accused, the applicant forcefully sent her to sleep with the co-accused, thereby aiding and abetting the commission of the offence.

3. Heard learned counsel for the applicant, Mr. Prince Chauhan and the learned A.G.A. Mr. Girish Chandra Joshi, appearing for the State, perused the materials on record.

4. The learned counsel for the applicant has vehemently argued that the applicant is innocent and has been falsely implicated. It is contended that the applicant was merely working as a cook in the hostel and had no role in the alleged offence. Particular emphasis was placed on the victim's testimony during cross-examination, where she purportedly stated that the applicant "did not forcefully send me anywhere." The applicant's counsel also highlighted that PW-2 (victim's mother) stated in her cross- examination that the accused was only a cook at the hostel, children used to call her aunty, and during the victim's stay from 2019 to 2021, the mother did not observe any abnormal behaviourin her daughter. It is further submitted that the victim did not make any complaint about sexual assault until May 2021, and PW-5 Sub-Inspector Kiran Doval clarified in cross-examination that the victim did not specify the date, year, or month of the incident in her statement. The applicant's counsel also emphasised that the applicant has no prior criminal history, is a poor woman who worked merely for her livelihood, and that she is ready to furnish adequate security if released on bail.

5. Per contra, the learned counsel for the State has strenuously opposed the bail application, contending that a named report has been lodged against the applicant, and the victim has fully supported the State’s case in her examination-in-chief. Particular attention was drawn to the First Bail Application No.1862 of 2024-----Oparna @ Dopi Sangma vs State of Uttarakhand 2 Ashish Naithani J. victim's statement wherein she stated that "When I told this to Oparna mausi, she said that do whatever Papa ji is saying." The counsel for the State also highlighted the victim's cross-examination statement that "I had told the accused about the incident. The accused did not forcefully send me anywhere. She told me to do whatever the accused is saying." It is the State’s case that the applicant actively helped the co-accused in perpetrating the sexual assault on the minor victim. Moreover, the medical examiner has opined that sexual assault on the victim cannot be ruled out. The offence being of a grave and serious nature involving a minor victim, the State counsel urged that no ground for bail is made out.

6. Upon careful scrutiny of the evidence and contentions advanced, this Court observes that the allegations against the applicant are indeed serious in nature. The POCSO Act was enacted with the specific purpose of protecting children from sexual offences, and the courts have consistently emphasised the paramount importance of child safety. The victim's testimony directly implicates the applicant, indicating that when informed about the co-accused's predatory behaviour, the applicant not only failed to protect the minor but also allegedly encouraged compliance with the co-accused's demands.

7. While the applicant's counsel has attempted to create doubt by pointing to certain aspects of the cross-examination, it is pertinent to note that at the stage of bail, the court does not conduct a detailed appreciation of evidence but primarily assesses prima facie culpability. The victim's statement that "She told me to do whatever the accused is saying" strongly suggests the applicant's complicity in the crime, potentially constituting abetment under Section 16 of the POCSO Act. This Court cannot overlook that while the applicant may not have physically "forced" the victim, her First Bail Application No.1862 of 2024-----Oparna @ Dopi Sangma vs State of Uttarakhand 3 Ashish Naithani J. alleged instruction to the victim to comply with the co-accused's demands, if proven, would amount to facilitating the sexual assault of a minor.

8. The Supreme Court in Neeru Yadav v. State of U.P. (2014) 16 SCC 508 has held that while considering bail applications, the courts must balance individual liberty with societal interest, particularly in cases involving vulnerable victims. Similarly, in Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496, the apex court outlined various factors to be considered while deciding bail applications, including the gravity of the offence, the possibility of tampering with evidence, and the larger interest of the public and the state.

9. It is also relevant to note that the co-accused in this case, Janardhan Binjola, was also denied bail by this Court, which underscores the gravity of the offences alleged. The serious nature of allegations against both the primary accused and the present applicant merits a consistent approach in bail consideration, especially given the underlying objectives of the POCSO Act to protect children from sexual offences.

10. In cases involving POCSO Act offences, the courts have been consistently cautious in granting bail, particularly when the allegations suggest exploitation of a position of trust or authority. In the present case, the applicant, being an adult responsible for the care of children in the hostel, was in a position of trust vis-à-vis the minor victim. The alleged breach of this trust by facilitating sexual abuse of the minor cannot be overlooked at the stage of bail consideration.

11. Furthermore, though the applicant has been in custody for a considerable period, the serious nature of the allegations, the ongoing trial, First Bail Application No.1862 of 2024-----Oparna @ Dopi Sangma vs State of Uttarakhand 4 Ashish Naithani J. and the potential impact on the victim's testimony if the applicant is released must be weighed against the length of incarceration. The courts have held that lengthy incarceration alone is not a sufficient ground for bail when the offence is of a grave nature, particularly involving vulnerable victims like minors.

12. The paramount consideration in bail matters involving POCSO offences must be the safety and well-being of the child victim. Any action that could potentially hamper the fair investigation or trial, or cause psychological distress to the victim, would run counter to the objectives of the POCSO Act, which is specifically designed to provide a child-friendly adjudication process. ORDER After a holistic assessment of all relevant factors, the gravity of the offence, the role attributed to the applicant, the evidence on record, the stage of trial, and the overarching principles governing bail in cases involving sexual offences against minors this Court is of the considered opinion that no case for bail is made out at this stage. Accordingly, the bail application of the applicant Oparna @ Dopi Sangma is rejected. Dated:25.04.2025 NR Ashish Naithani, J First Bail Application No.1862 of 2024-----Oparna @ Dopi Sangma vs State of Uttarakhand 5 Ashish Naithani J.