Point of Law: It is well settled that granting bail is a different matter and cancelling bail is a different matter. Bail can be cancelled on 2 (two) conditions, when the accused misuse his liberty and due to supervening circumstances.

Headnote:
Protection of Children from Sexual Offences Act, 2012 - Section 21and 6 - Medical Termination of Pregnancy Act, 1971 - Section 5(2)/5(3)/5(4) – Indian Penal Code,1860 - Section 312/313/314/336/419 - Criminal Procedure Code,1973 – Sections 439,437,(1), (2) and 482 - Special power of high court or court of session Regarding bail - Murder - Cancellation of impugned bail - Application under Section 482|439 (2) Cr.P.C is preferred by state of Assam, represented its Investigating Officer, of Village, PS & District Assam for cancellation of impugned bail order, , passed by learned Special Judge, (POCSO), in Bail Application in P.S. Case, under sections 302/201/34 IPC read with section 6 of POCSO Act, and section 312/313/314/336/419 of IPC read with section 5(2)/5(3)/5(4) of Medical Termination of Pregnancy Act, 1971 read with section 21 of POCSO Act - Whether granting of bail to the accused is perverse and suffers from infirmities, and thereby, resulted in miscarriage of justice and whether there arises any supervening circumstances so as to interfere with the impugned order
Finding of the court: Impugned order does not reflect that ld. Court below has considered antecedent of respondent and also factum of his abscondance after occurrence But, ld. Court below has been clarified that without looking into merit of case bail petition is considered on medical ground only and that too for a limited period of three months - Thus, Impugned order cannot be termed as perverse that resulted in miscarries of justice.- Petitioner has also failed to establish any other ground so to brand impugned order as ‘perverse’. - Factual matrix of case in hand is completely different from above referred case - Besides, it has already been discussed and held that reappears to be no perversity in impugned order, as interim bail is granted here in Court case on medical ground only. - Therefore, non consideration of principles governing grant of bail by ld. Court below would have no consequence - Court is of view that petitioner has failed to make out even a prima-facie case to recall/cancel privilege of interim bail granted to respondent, vide order by ld. Special Judge (POCSO) P.S. Case.
Result: Cr.P.C, dismissed

JUDGMENT :

1. This application under Section 482 Cr.P.C., read with section 439 (2) of the Cr.P.C., is preferred by the state of Assam, represented its Investigating Officer, namely Adith Boro, S/o Tribendra Boro, of Village Bhogiram, Police Station & PO Doboka, District Hojai, Assam for cancellation of impugned bail order, dated 31.08.2021, passed by the learned Special Judge, (POCSO) Morigaon, in Bail Application No. 209/2021 (State of Assam Vs. Dildar Hussain @ Diljar Hussain @ Pagla Doctor), in Laharighat P.S. Case No. 53/2021, under sections 302/201/34 IPC read with section 376(1)(2) IPC, read with section 6 of the POCSO Act, and section 312/313/314/336/419 of IPC read with section 5(2)/5(3)/5(4) of Medical Termination of Pregnancy Act, 1971 read with section 21 of POCSO Act.

2. It is to be mentioned here that vide impugned order, dated 31.08.2021, the learned Special Judge (POCSO) Act, Morigaon has enlarged the accused, Dildar Hussain @ Diljar Hussain @ Pagla Doctor, S/o Late Ushon Ali, of Village Lahorighat, under Police Station Lahorighat, District Morigaon, Assam on interim bail for a period of three months in view of mandate of first proviso of sub-section (1) of section 437 of Cr.P.C., imposing three conditions that he shall appear before the court after three months i.e. on 30.11.2021, he shall not commit similar offence and that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

3. Heard Mr. M. Phukan, learned P.P. Assam. Also heard Mr. A. Ahmed, learned counsel for the respondent No. 1.

4. The factual background leading to filing of this petition is briefly stated as under:-

“Accused Baharul Islam of Lahorighat is the brother in law of the victim Morgina Khatoon (actual name withheld). He got married with the elder sister of the victim. Accused Baharul Islam stayed in Manipur in connection with his avocation. Then victim girl also went there and stayed with him in Manipur for three months. During that period Baharul Islam committed rape upon the victim on several occasions and impregnated her. Thereafter, on a complaint lodged by his wife, the elder sister of the victim girl, accused Baharul Islam and the victim returned home. After 2 & ½ month, the victim complained of pain over her stomach and bleeding. Then the mother of the victim took her to another accused known as Pagla Doctor who has detected the pregnancy of the victim. Thereafter, the Pagla Doctor got her pregnancy aborted illegally on 22.01.2021. But, after the abortion the condition of the victim got deteriorated. When her condition further deteriorated then as per advice of the Pagla Doctor, the victim was taken to Nagaon Civil Hospital. But, she succumbed on the way to Hospital. Thereafter, her dead body was taken to Fakuli Pathar and on the next day she was laid to rest at Da-Gaon graveyard. Thereafter, on 27.01.2021, Mussabir Alom and one Ikramul Hoque of Dhuniabheti Pathar and Lalung Gaon, respectively, lodged one FIR with the Superintendent of Police, Morigaon, who then forwarded the same to the O/C Lahorighat P.S. The O/C Lahorighat P.S. then registered a Case No. 53/2021, u/s 302/201/34 IPC and endorsed S.I. Eiyn Sinha to investigate the same. During investigation, the I.O. has added several other sections i.e. section 376(1)(2) IPC, read with section 6 of the POCSO Act, and section 312/313/314/336/419 of IPC, read with section 5(2)/5(3)/5(4) of Medical Termination of Pregnancy Act, 1971 read with section 21 of POCSO Act, to the original sections, with the permission of the court. The I.O. also arrested some of the accused and forwarded them to the court. Accused Dildar Hussain @ Pagla Doctor, who conducted abortion on the victim was found absconding but he surrendered before the S.P. Morigaon, after 6 & ½ months, on 18.08.2021. The I.O. the arrested him and

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2021 Supreme(Gau) 467

Point of Law: It is well settled that granting bail is a different matter and cancelling bail is a different matter. Bail can be cancelled on 2 (two) conditions, when the accused misuse his liberty and due to supervening circumstances.

Cases Referred (8)