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MEGHALAYA HIGH COURT
W. Diengdoh, J.
Tingku N. Marak – Petitioner
versus
State of Meghalaya and Ors. – Respondents
BA No.18 of 2022
Decided on 14.11.2022
Counsel for the Parties:
For the Petitioner:Mr. A.M. Bora, Sr. Advocate with Mr. M. Prasad, Advocate
For the Respondent No. 1: Mr. N.D. Chullai, AAG with Ms. R. Colney.
For the Respondent Nos. 2 &3:Ms. I. Lyngwa, Advocate
For the Respondent No.4:Mr. A. Momin, Advocate.
IMPORTANT POINT
Bail application – There is no impediment to I/O to carry out investigation even without accused person in custody and any relevant evidence collected in course of investigation would be duly considered in course of proceedings.
Headnote:
Criminal Procedure Code, 1973 – Section 439 – Bail application – A case of sexual assault particularly involving a minor girl is very serious, however, even medical report suggests that any sexual assault perpetrated against the child was not of recent origin – There is no direct evidence or even indirect evidence linking accused person to sexual assault – There is no impediment to I/O to carry out investigation even without accused person in custody and any relevant evidence collected in course of investigation would be duly considered in course of proceedings – Since accused person was not apprehended along with minor girl during said raid, therefore, to say that he is likely to be offender only because of fact that he is the owner of property is too farfetched – Bail granted. (Paras 10 to 13)
Result: Petition allowed.
JUDGMENT
W. Diengdoh, J.—The petitioner herein has come before this Court with this application under Section 439 Cr.PC with a prayer for grant of bail to the accused person Shri Bernard N. Marak who is his brother and who was arrested initially in connection with Tura PS Case No. 166(07)2022 under Section 120/120B/121/121A/109/110 IPC r/w Section 4/5 of the Explosives Substances Act and also in another case being Tura Women PS Case No. 105(07)2022 under Section 3/4/5/6/7 of the Immoral Traffic (Prevention) Act. However, the said accused person was during his incarceration in judicial custody in connection with the abovementioned cases, was also shown arrest in connection with Tura Women PS Case No. 107(07)2022 under Section 5(l)(m)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
2. Heard Mr. A.M. Bora, learned Sr. counsel appearing for the petitioner who has submitted that the accused brother of the petitioner was arrested by the police on 27.07.2022, allegedly on the basis of a raid conducted on his landed property known as Rimpu Bagan at Edenbari, West Garo Hills, District wherein it was said that immoral activities was carried out in the said premises resulting in a number of persons being found in compromising position indicating that the place is being used as a brothel and also that the recovery of a number of arms and ammunitions has led the police to register criminal cases under relevant provisions of law.
3. On 29.07.2022, an FIR was lodged by the Chairperson, Member Secretary and Member of the Child Welfare Committed, West Garo Hills, Tura before the Officer-In-Charge Tura Women Police Station indicating to the extent that during the raid that took place at ‘Rimpu Bagan’ on 22.07.2022 one child aged about three years was rescued and was placed in the Children’s Home (Girls), Tura. Her medical examination was also done at Maternity & Child Hospital, Tura where she was found to have been sexually abused. Accordingly, the police registered a case being Tura Women PS Case No. 105(7)2022. In course of investigation, two persons have been named in this connection that is the father of the said child and the accused brother of the petitioner.
4. The learned Sr. counsel has also submitted that the accused person has not visited his farm house where the alleged incident/rape took place and was absolutely unaware of what was happening there in his absence. As submitted, he was however arrested in connection thereof, only on the ground that he is the owner of the said property. Therefore, there is absolutely no materials or evidence to show that he is involved in the alleged sexual assault of the minor.
5. It is further submitted that the accused is a permanent member of the society being an elected member of the District Council and as such, if released on bail he will abide by any conditions imposed by this Court.
6. Mr. N.D. Chullai, learned AAG along with Ms. R. Colney learned GA appearing for the State respondent has submitted that copy of the case diary as directed to be produced by this Court is hereby submitted for perusal of this Court. It is also submitted that a perusal of the case diary would show that the accused brother of the petitioner is very much involved in the case of sexual assault against the said minor girl for which the Investigating Officer (I/O) has made a prayer for questioning him in custody.
7. Learned counsel for the respondents No. 2 and 3 as well as the learned counsel for respondent No.4 has also endorsed the submission made by the learned AAG.
8. Upon hearing the learned counsels for the parties and on perusal of the case diary, what is evident is that the child who is the daughter of one of the caretakers of the said ‘Rimpu Bagan’, was also caught in the melee during the said raid conducted on 22.07.2022 and was noticed by the members of the Child Welfare Committee who took the child and caused medical examination to be carried out on her person following whic
