IMPORTANT POINT
Bail – It is incumbent upon court to consider seriousness and nature of offence, more particularly, in cases of sexual assault against children or minors.

JUDGMENT AND ORDER (ORAL)

Heard Ms. S. Nongsiej, learned counsel for the petitioner/accused, who has submitted that the petitioner/accused was arrested on 12.03.2023 on the strength of an FIR dated 12.03.2023 lodged by the respondent No. 3 on the allegation that her minor daughter was sexually assaulted by three persons, whereupon the police on receipt of such FIR had registered a case being Diengpasoh P.S. Case No. 01(03) 2023 under Section 5(g)/6 of the POCSO Act.

2. The learned counsel has submitted that affidavit of service as regard the issuance of notice upon the respondent No. 3 has been filed to indicate that the notice has been affectively issued, however, the respondent No. 3 has failed to appear before this Court today. Accordingly, on prayer made, this matter shall proceed ex-parte against the respondent No. 3.

3. The Investigating Officer after investigation has been completed, has filed the charge sheet in June 2023 implicating the petitioner herein along with two other co-accused who are made to stand trial before the competent court of jurisdiction in Special (POCSO) Case No. 24 of 2023 pending before the Court of the learned Special Judge (POCSO), East Khasi Hills District, Shillong.

4. The learned counsel has however canvassed only one issue to impress upon this Court that the petitioner/accused may be enlarged on bail, such issue being that since the petitioner/accused was arrested more than one year ago, the case has not proceeded in accordance with the relevant provision of the POCSO Act, 2012, particularly Section 35 of the said Act, which stipulates inter alia, that the trial of the case should be completed within a period of one year, whereas in this instant case, charges have yet to be framed and there are as many as 32(thirty-two) prosecution witnesses to be examined, which in any case, would result in a prolonged trial, the petitioner/accused would then be deprived of his liberty to defend his case and even his right under Article 21 of the Constitution of India is threatened by such prolonged incarceration. It is therefore prayed that this application may be allowed and the petitioner/accused may be enlarged on bail with any conditions that this Court would deem fit and proper to impose.

5. Mr. N.D. Chullai, learned AAG appearing on behalf of the State respondent Nos. 1 & 2 has however vehemently opposed the prayer made by leading this Court to the materials on record, particularly the statement of the survivor made under Section 161 Cr.P.C, wherein she has narrated the sequence of events leading to the sexual assault upon her, firstly, by one person and secondly, by the petitioner/accused herein, who has also threatened to kill her, if she reveals such incident.

6. The learned AAG has also submitted that the survivor being of tender age of about 15 years is traumatized by the incident and, if enlarged on bail, the presence of the petitioner/accused would endanger her life physically and mentally.

7. On the contention of the learned counsel for the petitioner as regard the delay in the proceedings which would automatically be the ground for grant of bail, the learned AAG has referred to the case of State of Bihar & Anr v. Amit Kumar Alias Bachcha Rai reported in (2017) 13 SCC 751, wherein the Hon’ble Supreme Court at para 8 of the same has observed as follows:—

“8. A bare reading of the order impugned discloses that the High Court has not given any reasoning while granting bail. In a mechanical way, the High Court granted bail more on the fact that the accused is already in custody for a long time. When the seriousness of the offence is such the mere fact that he was in jail for however long time should not be the concern of the courts. We are not able to appreciate such a casual approach while granting bail in a case which has the effect of undermining the trust of people in the integrity of the education system in the State of Bihar.”

8. The learned AAG has reiterated that the Hon’ble Supreme Cou