The court balanced the progress of trial and the applicant's liberty, considering the completion of witness examination, absence of criminal record, and the risk of COVID-19 in jail, to grant bail with conditions.

ORDER :

Bhaskar Raj Pradhan, J.

1. This is an application under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking bail for the applicant who is under trial. The First Information Report (FIR) was lodged against him on 15.05.2019. On the same date he was arrested and since then he has been incarcerated. He is presently lodged at Rongyek, Jail, East Sikkim. According to the applicant he is 22 years old and the charge against him is that he has committed sexual assault on a 15 year old victim. The investigation completed, the prosecution filed a charge sheet on 30.07.2019. On 21.09.2019, it has been informed, charges under section 10 and 12 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act, 2012) as well as under Section 354 of the Indian Penal Code, 1860 (IPC) were framed against the applicant. The trial has progressed and as of now 7 witnesses have been examined. 7 more witnesses are yet to be examined. The last date scheduled by the learned Special Judge for examination of the prosecution witnesses is 17.05.2021.

2. The records reveal that the learned Sessions Judge had rejected the applicant’s application for bail on 30.05.2019 on the ground inter-alia that the investigation was in progress. The second bail application was rejected on 25.08.2020 on the ground that victim had deposed about the sexual assault and therefore, it was not the case of being incarcerated without any basis. Further, it was also held that the offences were of serious nature, trial was under progress, some of the witnesses are yet to be examined and given the nature of the case the possibility of the applicant trying to abuse his liberty cannot be ruled out. In so far as the applicant’s medical condition is concerned it was observed that the jail authorities had extended the required medical facilities to the applicant in jail.

3. Ms. Zola Megi, learned counsel for the applicant urges this bail application once again on the applicant’s medical condition and on the ground that the trial now being substantially over, the main witnesses have been examined and secured. It is also urged that the applicant had just completed school, aged about 22 years only and as such he is neither in a position to influence the witnesses or tamper with evidence. It is urged that the applicant has no past criminal record.

4. Mr. Yadev Sharma, learned Additional Public Prosecutor while opposing the bail on the ground that offences charged are of serious nature and he may misuse his liberty also fairly concedes that even in the charge-sheet the investigating officer has categorically noted that the applicant does not have any criminal record.

5. It is seen that the victim, her mother as well as several other important witnesses have been examined and their depositions secured.

6. Considered the application for bail, the objections filed by the State dated 02.02.2021 as well as the additional documents placed on record on 02.02.2021 by the applicant.

7. At this stage of trial the primary concern for the court should be the uninterrupted progress for fair trial to ensure justice is done. This can happen only when prosecution witnesses are able to depose freely, without fear or favour. The court must also be conscious that the applicant is only an under trial and his liberty is a relevant consideration. While adopting a liberal approach the possibility of interdicting fair trial if released on bail should be obliterated.

8. Considering the nature of the offence and the fact that the applicant has already spend 1 year and 8 months in jail out of the minimum sentence of 5 years prescribed for the offence under Section 10 of the POCSO Act, 2012, it may not be proper to continue him in jail any further. More so when besides the statement that the applicant is likely to abuse the liberty if granted, there is no reason or rationale to the allegation made.

9. The applicant seems to be a patient of congenital heart disease and had been treated previously i