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IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
Wanlura Diengdoh, J.
Heiratami Biam - Appellants
Vs.
State of Meghalaya - Respondent
A.B. No. 12 of 2020
Decided On : 18-08-2020
POCSO Act - Application under Section 438 Cr.P.C. - Section 3(a)/4 of POCSO Act - Summary of Acts and Sections: POCSO Act, Section 438 Cr.P.C. - The court discussed the principles of grant or refusal of bail, including anticipatory bail, and cited relevant cases to support its decision. The court emphasized the nature and gravity of the accusation, the possibility of the accused to flee from justice, and the impact of grant of anticipatory bail in cases affecting a large number of people.
Fact of the Case:
An application under Section 438 Cr.P.C. was filed by the petitioner who was accused of sexually assaulting and raping a minor. The victim's statement and medical report confirmed the occurrence of the incident. The petitioner sought pre-arrest bail, citing lack of misuse of liberty during interim bail and no threat of intimidation to the victim.
Finding of the Court:
The court rejected the application for anticipatory bail, discharged the interim bail, and disposed of the case. It emphasized the nature and gravity of the offence and concluded that a prima facie case against the petitioner had been made out, disqualifying him from being granted anticipatory bail at that juncture.
Issues: The main issue was whether the petitioner was entitled to pre-arrest bail under Section 438 Cr.P.C. considering the nature and gravity of the offence, the possibility of the accused to flee from justice, and the impact of grant of anticipatory bail in cases affecting a large number of people.
Ratio Decidendi: The court considered the principles of grant or refusal of bail, including anticipatory bail, and emphasized the nature and gravity of the accusation, the possibility of the accused to flee from justice, and the impact of grant of anticipatory bail in cases affecting a large number of people.
Final Decision: The court rejected the application for anticipatory bail, discharged the interim bail, and disposed of the case. It made clear that the observations made were only for the purpose of grant or refusal of anticipatory bail and shall not be prejudicial to the accused at the trial.
JUDGMENT :
Wanlura Diengdoh, J.
1. Under consideration herein is an application under Section 438 Cr.P.C. which emanated on 28.02.2020 when an FIR was lodged by the Complainant as the mother of the victim before the Officer-In-Charge, Women Police, Jowai Police Station, West Jaintia Hills District alleging that the petitioner herein had sexually assaulted and raped her minor daughter on 27.02.2020 at about 6.30 P.M. at the staff quarter of Finedy Tea Stall, Lad Thomas Jones College, Jowai.
2. From the records, including the contents of the case dairy of Jowai P.S. Case No. 30 (2) 20 under Section 3(a)/4 of POCSO Act, which is the registered number of the FIR so lodged, it is seen that on receipt of the verbal information from the Complainant who had appeared personally at the Police Station at about 10.10 P.M. on 27.02.2020, the victim was sent for medical examination. Thereafter, as stated above, the FIR was lodged on 28.02.2020 and formal investigation was launched.
3. In the meantime, the petitioner had approached the Court of the Special Judge (POCSO), Jowai with an application under Section 438 Cr.P.C., who has initially granted interim bail to the petitioner and had called for the case dairy and after finally hearing the parties, had, vide Order dated 09.07.2020 rejected the application of the petitioner. Thereafter, the I/O then sought to arrest him in connection with the said Jowai P.S. case No. 30 (2) 20.
4. The petitioner, on 30.07.2020 then approached this Court with an application under Section 438 Cr.P.C. as stated above praying for grant of pre-arrest bail on the ground that he apprehends arrest in connection with the said Jowai P.S. case No. 30 (2) 20.
5. Heard Mr. B. Laitmon, learned counsel for the petitioner who at the outset, on query by this Court, has submitted that the petitioner will not pursue the line of argument as far as assailing the Order dated 09.07.2020 of the learned Special Judge (POCSO), Jowai is concerned, but would argue on the merits of the prayer as stated in this instant application.
6. Learned counsel for the petitioner has submitted that apart from the oral argument advanced, the petitioner has also submitted a written argument, which may be perused by this Court while considering the case of the petitioner.
7. The learned counsel for the petitioner has also referred to the Order dated 12.03.2020 passed by the learned Special Judge (POCSO) Jowai, which is the grant of interim bail to the petitioner. However, the matter could not be taken up for final hearing for almost five months due to the circular of the High Court on account of the prevailing pandemic situation. In the meantime, the interim bail continues to remain in force till the bail application was finally rejected vide Order dated 09.07.2020.
8. It is the submission of the petitioner that during the five months' period when he was granted interim bail, he had not misused his liberty, but instead had cooperated with the I/O and over five months have elapsed and as such, it is submitted that the investigation would have been completed and therefore, there is no useful purpose to be achieved by detaining the petitioner in custody.
9. Another point of argument of the petitioner is that he is no longer working in the said Tea Stall and his village is approximately about 70 Kms from the residence of the victim and as such, there is no threat of intimidation of the victim by the petitioner. Even Section 506 IPC was also not invoked as far as the petitioner is concerned, it is further submitted.
10. That the petitioner has no criminal antecedent and also that he had appeared before the I/O on 03.07.2020 and 04.08.2020 was also another line of argument of the petitioner to contend that he is entitled to pre-arrest bail, which if granted, he undertakes to abide by any conditions to be imposed by the Court.
11. In support of his argument, the petitioner has cited the following cases:
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