Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Megh) 41

IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
W. DIENGDOH, J.
State of Meghalaya – Petitioner
Versus
Shri Heibormi Dkhar – Respondent
Crl. Rev. Pet. No. 6 of 2021
Decided On : 10-12-2021

Advocates:
Advocate Appeared:
For the Petitioners: Mr. N.D. Chullai, Ms. R. Colney.
For the Respondent: Mr. A.H. Hazarika.

Point of Law: A Court of Session had admitted an accused person to bail, State has two options. It may move Sessions Judge if certain new circumstances have arisen which were not earlier known to State and necessarily, therefore, to that Court. The State may as well approach High Court being superior Court under Section 439 (2) to commit accused to custody.

Headnote:
Criminal Procedure Code, 1973 - Section 439(2) read with Section 482 - Indian Penal Code, 1860 - Section 363/364/302/201 - POCSO Act - Section 11/12 - Offence of Murder - Cancellation of bail - Prayer to set aside impugned order and to direct the learned Special Judge (POCSO) to cancel the bail bond of the accused/Respondent herein and also to direct the police to take the accused/Respondent into custody - police received a telephonic information from one Secretary VDP, that one female dead-body was found lying inside a jungle at 2 Kilo Wah Umbhuh Wai Khyrwi. On reaching the spot, the police met the informant and further the body was identified by one Shri Vickstar Siangshai as that of his sister.
Finding of the Court:
There is no extraordinary circumstances which would endanger the life of the Respondent/accused if bail is withheld, inasmuch as, jail authorities are duty bound to ensure that proper medical treatment is afforded to the inmates, and there are also adequate number of treatment centre and hospitals where Respondent/accused could be referred for treatment under custody - In bail jurisprudence the concept of granting bail on humanitarian ground is not so prevalent and the same is not legally tenable which also renders the impugned order passed on this account to fail the scrutiny of law - as jurisdiction of this Court is concerned and also that bail once granted cannot be cancelled, if there is no findings and evidence of violation of any of the conditions imposed while granting bail - it is obvious that the impugned order was passed without due application of mind and the discretionary power was not exercised judiciously which leaves this Court with no option but to set aside and quash the same.
Result: Petition disposed of.

JUDGMENT :

W. DIENGDOH, J.

1. An application under Section 439(2) read with Section 482 Cr.P.C. was preferred before this Court primarily against an Order dated 24.06.2021 passed by the Learned Special Judge (POCSO), Khliehriat, East Jaintia Hills District of Meghalaya, whereby vide the impugned order, the Court while considering the Bail Application No. 60 of 2021 moved by the accused/ Respondent herein, has granted bail in Khliehriat Women P.S. Case No. 9(03) of 2021 under Section 363/364/302/201 IPC r/w Section 11/12 of the POCSO Act.

2. Before adverting to the merits of the argument of the parties, it would not be out of place to go into the brief facts of the case before the learned Special Judge and also to the contents of the case record, including the case dairy duly produced before this Court.

3. On 13.03.2021, the police received a telephonic information from one Shri Honey Nongtdu, Secretary VDP, Lad Sutnga that one female dead-body was found lying inside a jungle at 2 Kilo Wah Umbhuh Wai Khyrwi. On reaching the spot, the police met the informant and further the body was identified by one Shri Vickstar Siangshai as that of his sister.

4. On being certain of the identity of the deceased, one of the family members lodged a formal FIR before the Officer-In-charge, Women Police, Khliehriat Police Station, East Jaintia Hills District on 13.03.2021 whereby the incident leading to the discovery of the body of the deceased was narrated.

5. In course of investigation, the police questioned a number of persons and in the process, one Shri Heibormi Dkhar and Shri Resmon Rymbai were interrogated, which eventually led to the arrest of Shri Heibormi Dkhar as the prime suspect. The accused was then forwarded to the Court on 27.03.2021 and was remanded to police custody and thereafter to judicial custody.

6. After the investigation is completed, the I/O filed the charge-sheet and remarked that a prima-facie case is found well established against the accused Heibormi Dkhar under Section 364/302/201 IPC r/w Section 3(a)/4/11(iv)/12 POCSO Act and he was forwarded to the Court for trial.

7. On 24.06.2021 a bail application under Section 439 Cr.P.C. was moved on behalf of the accused by his father Shri Eki Phawa and the learned Special Judge (POCSO), Khliehriat upon hearing the learned Counsel for the Petitioner as well as the learned Special PP, vide order dated 24.06.2021 has enlarged the accused Heibormi Dkhar on bail on certain conditions.

8. Being aggrieved by the said order dated 24.06.2021 whereby the accused Heibormi Dkhar was granted bail by the Special Court (POCSO), the Petitioner/State of Meghalaya has accordingly approached this Court with this application under Section 439(2) r/w Section 482 Cr.P.C. with a prayer to set aside the impugned order and to direct the learned Special Judge (POCSO), Khliehriat to cancel the bail bond of the accused/Respondent herein and also to direct the police to take the accused/Respondent into custody.

9. Heard Mr. N.D. Chullai, learned AAG along Ms. R. Colney, learned GA who has submitted that the manner in which the impugned order granting bail to the Respondent herein was made, reveals that there was no application of mind and the same was passed in a mechanical manner by the learned Special Judge, (POCSO), inasmuch as, bail was granted to the accused/Respondent only on humanitarian and medical ground without considering the gravity and nature of the offence where the victim was kidnapped, murdered and raped.

10. The learned AAG has also submitted that though the accused/Respondent was stated to be suffering on account of having kidney stones, yet the report from the Jail Superintendent clearly stated that he was receiving treatment in the jail itself and as such, the ground on which bail was granted is not tenable.

11. It is further submitted that the accused/Respondent is residing next door to the family of the deceased victim and would have easy access to the witnesses and having a significant sway