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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH AT KOHIMA BENCH
S. HUKATO SWU, J.
The State of Nagaland – Petitioner
Versus
Sandeep Jain – Respondent
Crl. Pet. No. 4 of 2021
Decided On : 28-06-2021
Indian Penal Code, 1860 - Section 376 - Criminal Procedure Code, 1973 - Section 439 - POCSO Act - Sections 29 - Crime against children - Sexual Offence - Seeking to cancel bail - Whether accused is likely to tamper with evidence or interfere or attempt to interfere with due course of justice or evade due course of justice - Alleging that her daughter who is aged 4 years old studying in Euro International School started crying and screaming to avoid going to school repeatedly for two days. When she inquired as to why she was not willing to go to school, girl child narrated that after class; she was taken upstairs by her Principal wearing mask and touched all over her body and also inserted his finger into her private parts. She even had nightmare at night saying she won’t go to school in her dream. She took her child and went to talk to school authority and authority said nothing of such nature has happened before. Principal was supposed to come and meet her but all of a sudden they informed her that he is about to go out of station. School Coordinator said there is no male inside the school except Principal.
Finding of the Court:
Admittedly having no medical knowledge must rely upon authentic medical report to justify granting of bail. We cannot be oblivious of the fact that society now considers offences under POCSO Act as a serious offence and Parliament having considered this has brought about this legislation for effective measures against all child sexual abuses. It has now been submitted that charge sheet has already been filed. Charges under 354A, 354B and Section 10 of POCSO Act has been leveled against accused - Accused cannot be applied in present set of facts since question at hand is with regard to perverse exercise made by Special Judge in considering bail and not related to issues whether accused is misusing the liberty of bail - Learned Special Judge (FTSC) was in error in considering bail of accused on ground of illegal detention and medical ground. Therefore order requires interference of this Court - Impugned order passed by the learned Special Judge quashed and set aside. Accused shall be committed to judicial custody for fair trial. Accused is at liberty to move Special Court, POCSO for bail by filing appropriate medical documents from the medical board.
Result: Criminal Petition is allowed and disposed of.
Based on the provided legal document, the key points are as follows:
The legal proceedings involve a case where the State of Nagaland is challenging an interim bail granted to the respondent, Sandeep Jain, in a child sexual abuse case under the POCSO Act and IPC (!) (!) .
The initial incident involved a serious allegation by a mother that her 4-year-old daughter was sexually assaulted by the Principal of a school, leading to the filing of an FIR and subsequent investigation (!) (!) (!) .
The accused was arrested and initially granted interim bail by the Special Judge, based on grounds including alleged illegal detention and medical issues of the accused (!) (!) (!) (!) .
The prosecution contended that the bail was granted improperly, citing that the grounds for bail—particularly the medical grounds—were not properly established or verified through a neutral medical assessment, and that the charge sheet was filed before the bail order but was not properly considered (!) (!) (!) (!) .
The Court emphasized that offences under the POCSO Act are serious, and the society considers such offences grave, warranting careful scrutiny before granting bail, especially on medical grounds (!) (!) .
The Court noted that the medical reports relied upon were untested and that the procedure for considering medical grounds should involve a neutral medical board to avoid misuse of medical certificates (!) (!) .
The Court found that the consideration of bail based on alleged illegal detention was flawed because the record showed the charge sheet had been filed prior to the bail order, and the period of alleged illegal detention was not substantiated (!) (!) .
The Court also highlighted that the bail order was improperly granted without proper verification of the medical condition and without referring the matter to a medical board, which is essential for such serious allegations (!) (!) .
The Court concluded that the order granting bail was made in error and was a perverse exercise of judicial discretion. Therefore, it quashed the bail order and directed the accused to be taken into judicial custody for a fair trial (!) (!) .
The accused is permitted to reapply for bail by submitting appropriate medical documents from a recognized medical board, and the jail authorities are directed to provide necessary medical care (!) (!) .
Overall, the Court underscored that bail in serious offences involving children and sexual abuse must be granted only after thorough verification of medical grounds and proper procedural adherence, emphasizing that such decisions should not be based on untested or unverified medical reports.
JUDGMENT :
S. HUKATO SWU, J.
1. The present criminal petition is moved by the State against the order dated 29-05-2021 passed in connection with I.A. Criminal No. 14/2021 in Dimapur Women Case No. 720/2021 corresponding to G.R. No. 198/2021 under Section 376 IPC read with Section 6 POCSO Act passed by the Special Judge FTSC Dimapur granting interim bail to the accused till 29-06-2021.
2. The facts of the matter is that an FIR was lodged before the Officer-in-Charge Women Police Station Dimapur, Nagaland by Mrs. Kitoholi resident of Notun Bosti A.O. Khel House No. 123 on 07-04-2021 alleging that her daughter who is aged 4 years old studying in Euro International School at Midland Dimapur started crying and screaming to avoid going to school repeatedly for two days. When she inquired as to why she was not willing to go to school, the girl child narrated that after the class, she was taken upstairs by her Principal wearing mask and touched all over her body and also inserted his finger into her private parts. She even had nightmare at night saying she won’t go to school in her dream. On 7th of April, she took her child and went to talk to school authority and the authority said nothing of such nature has happened before. The Principal was supposed to come and meet her but all of a sudden they informed her that he is about to go out of station. The School Coordinator said there is no male inside the school except the Principal. They said that there is no chance of such thing happening. So the complainant was not satisfied with the way they deal with serious child abuses and requested the Police to look into the matter and arrest the culprit.
3. The accused Sandeep K. Jain was arrested on 07-04-2021. On 03-05-2021, a petition bearing I.A. Criminal No. 14/2021 was filed under Section 439 Cr PC for the release of accused Sandeep K. Jain and the learned Special Judge fixed 07-05-2021 for hearing of the bail application and directed the I.O. to submit investigation report along with the CD. Thereafter, by an order dated 29-05-2021, the learned Special Judge POCSO passed interim order granting bail to the accused till 29-06-2021. The bail was considered on the ground that:-
(2) The second ground which was considered by the learned Special Judge was on medical ground which suggested that the accused was suffering from grade-II internal hemorrhoids with RCS, chronic hepatitis and gastric ulcer, internal bleeding with annul fissure and chronic inflation in liver. The learned Special Judge further observed that there is no report showing that the accused is being treated for his ailment inside the jail also it is observed that the medical facilities at jail is not adequate to treat the accused. With the above two grounds, the learned Special Judge granted ad-interim bail to the accused till 29-06-2021.
4. Aggrieved with the decision of the learned Special Judge, learned P.P. Ms. V. Suokhrie is before this Court for the State petitioner praying for cancellation of the interim order on the ground that the learned Special Judge has arbitrarily exercised the discretion of granting of bail under 439 Cr PC arbitrarily without considering the material records and therefore, she has challenged the decision of the learned Special Judge, POCSO. She prays that the order dated 29-05-2021 be set aside and quashed in the interest of justice.
5. Learned P.P. Ms. V. Suokhrie submits that the matter relates to serious offence of abuse of a girl child of four years who has been sexually assaulted by none other than the Principal of the School, an educationist. This fact alone deserves serious consideration by the Court to give justice to a child student of four year who now is ev
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