JUDGMENT :

S. Hukato Swu, J.

1. This is a bail application filed under section 439 of Cr.P.C. filed by one Shri Kossam Konyak, resident of Borlengri Colony, Dimapur, Nagaland for the release of Shri Hoiwang Konyak, aged about 48 years, resident of Sewak Colony, Dimapur. The petitioner is represented by Mr. Moa Jamir and the State respondent represented by Ms. V. Suokhrie, learned P.P.

2. The facts of the matter is that on 08.02.2016, an FIR was lodged by Smt. Lily Konyak, daughter of Bangbo Konyak, resident of Kuda Village B-Khel, Dimapur, Nagaland to the Officer-in-Charge, West Police Station, Dimapur, Nagaland alleging that the accused (Hoiwang Konyak) had raped a minor girl of 11 years of age in the month of September, 2015 at his residence in Sewak Colony, Dimapur. The victim came to Dimapur in the month of February, 2015 with her father to stay at the alleged accused person's residence for education. Basing on the complaint, the Officer-in-Charge, West Police Station registered the case West Police Station Case No. 0034/16, under section 376(f)(i) IPC, section 4/6 POCSO Act, read with 7 NSR in G.R. Case No. 108/16. The accused/petitioner was arrested in Tizit on 19.11.2020 and he is under custody till date. The bail application was filed before the Principal District and Sessions Judge, Dimapur in I.A. No. 338/2020 for the release of the accused/petitioner. However, by an order dated 16.12.2020, the bail application was rejected by the learned Principal District and Sessions Judge, Dimapur on the ground that the investigation was still in progress. Further direction was given that the accused should be given medical treatment for his complaint of appendicitis. The matter was again brought before the Special Judge, (FTSC), Dimapur and the matter was fixed for hearing on 20.04.2021 with the direction to the Medical Superintendent of District Medical Board to submit the medical board examination of accused on or before the fixed date for hearing. However, till date the bail application could not be heard nor the medical board filed report as directed by the learned FTSC, Dimapur. The reasons for non hearing of the bail application was due to the Special Judge contracting the Covid virus and being under home quarantine, therefore, the bail application was withdrawn and the petitioner has approached this Court for granting relief.

3. The main contention of the petitioner is that the accused/petitioner has been arrested on 19.11.2020 and since then he is under the judicial custody for 219 days with medical issues which is not addressed till date. The direction of the Court were also not complied with for giving proper medical treatment to the accused/petitioner and also furnishing proper medical report which was directed to be examined by a District Medical Board. On this score alone, the accused/petitioner is entitled to be enlarged on bail as provision of section 439 of Cr.P.C. is wide enough to cover such matter where the Court has been given wide discretion.

The learned counsel for the petitioner, Mr. Moa Jamir also argued that the victim refused to undergo medical examination and the accused/petitioner has been put behind bar only on the statement of the victim which has not been supported by the medical evidence. Therefore, there is much doubt on the veracity of the charges that the accused committed rape upon the victim which deserves due consideration of the Court while examining whether bail should be considered or not. It may also be kept in mind that the FIR was lodged only after 6(six) months of the incident which puts the charges to doubt. Sufficient the delay was caused in filing of the FIR which is not reliable.

The learned counsel for the petitioner has strenuously argued on the issues that once the charge-sheet has been filed the same time the investigation is completed, the presence of the accused in the custody is not a necessity. Several ruling of the Apex Court and also of the High Court have been passed in the l