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2021 Supreme(Megh) 16
IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
W. DIENGDOH, J.
Shri Abdul Kalam SK - Appellant
Versus
State of Meghalaya - Respondent
BA. No. 5 of 2021
Decided on : 28-06-2021
Advocate Appeared:
For the Appellant : Mr. S.A.Sheikh, Adv.
For the Respondent: Mr. H.Kharmih, G.A.
Point of Law: Bail application dismissed - Abducted and gang raped - Grant or refusal of bail is entirely within discretion of judge hearing matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for grant of bail ought not to be strict as to incapable of compliance, thereby making grant of bail illusory.
Headnote:
Criminal Procedure Code, 1973 - Section 439 - Prayer for grant of bail - Petitioner when he came home, he saw his minor daughter, aged about 16 years 8 months profusely bleeding and on enquiry, he was informed that she was abducted and gang raped by three persons who had abducted her while she was no her way to tuition class by gagging her mouth and blind folding her after which she was taken to the house of Habibul Islam where she was raped by them. She was later found by one Smti Anisa Khatun who brought her home.
Finding of the Court :
It is well settled that in event of a bail application having been rejected, any number of successive bail applications can be preferred, however subsequent application have to indicate a change circumstance(s) to allow Court to look afresh at the matter for without an averment to the changed circumstances, the second application, as in this instant case, would be deemed to be seeking review of the earlier order which is not permissible in criminal law - Court would view the matter seriously with circumspective. This being the case, it would not be wise to release the accused on bail at this stage.
Result: Application dismissed
JUDGMENT :
1. This matter has been taken up via video conferencing.
2. This is an application under section 439 Cr.P.C. filed by the Petitioner Shri Abdul Kalam Sk with a prayer for grant of bail on behalf of Shri Habibul Islam who is one of the accused in Special (POCSO) Case No 39 of 2020, pending in the court of the learned Special Judge(POCSO), West Garo Hills, Tura.
3. The brief facts of the case as narrated by the Petitioner in his application is that, on 21.08.2020, an FIR was lodged by one Shri Abdus Salam Akand before the Officer-in Charge, Tura Women Police Station, West Garo Hills, Tura stating that on 20.08.2020 at about 5.30 pm, when he came home, he saw his minor daughter, aged about 16 years 8 months profusely bleeding and on enquiry, he was informed that she was abducted and gang raped by three persons, viz; Habibul Islam@ Habbul, Mokabbir Hussain and Israful Hoque who had abducted her while she was no her way to tuition class by gagging her mouth and blind folding her after which she was taken to the house of Habibul Islam where she was raped by them. She was later found by one Smti Anisa Khatun who brought her home. The Informant then took her to the Phulbari Police Station and then to the Phulbari PHC from where she was referred to the Maternity and Child hospital, Tura for admission.
4. The Petitioner has further stated that during the course of investigation, the accused Habibul Islam voluntarily submitted to the custody of the police on 27.08.2020 and as duly arrested and was produced before the court of the Special Judge(POCSO), Tura.
5. It is also stated that a number of bail applications were filed before the Trial Court which were rejected and one such application was filed before this Court which was rejected on 12.03.2021.
6. Mr. S.A. Sheikh, learned Counsel for the Petitioner has submitted that the said FIR was lodged only as a counter blast to the fact that admittedly, there is a love affair between the alleged victim and the accused person herein, but for the fact that she is still a minor, being about 17 years of age. However, there are evidence of exchange of message through whatapps/Instagram Messenger and Facebook between the two, which messages were deleted by the victim after the said incident.
7. It is also further submitted that the victim wanted to elope with the accused Habibul who could not persuade her to return home. This fact was also known to many people in the locality.
8. There is also a reference made to the role of the village Panchayat who held a meeting in the house of the Petitioner for the performance of marriage between the two, but since the victim is only 17 years old, the consent of the parents of the victim was sought for but they did not attend the said meeting and the members of the Panchayat took back the victim to her house after which the said FIR was lodged.
9. The learned Counsel has also submitted that the preliminary Charge Sheet was filed in the case and the deposition of the victim was recorded by the Trial Court on 09.04.2021, the next date fixed being 23.05.2021 when the case was not taken up due to the prevailing situation.
10. Under the circumstance, it is submitted that further custody of the accused will not serve any purpose, he is therefore entitled to be enlarged on bail. Furthermore, it is submitted that the accused is innocent of any offence as alleged since the medical report of the victim has shown that there was no sign of sexual assault, the fact that the accused is a college student who is pursuing his final year B.A. from South Salmara, College under the Gauhati University is also one of the grounds taken for consideration by this Court.
11. The learned counsel of the Petitioner has cited the case of “Dataram Singh v. State of Uttar Pradesh & anr” (2018) 3 SCC 22 at para 1,2,3 & 4 and the case of “Vijaya Lakshmi and anr. v. State Rep. by The Inspector of Police, All Women Police Station, Erode. Crime No. 2 of 2018 & Indhran @ Siva” in Crl.O.P. No. 232
