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2020 Supreme(Megh) 40
IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
Wanlura Diengdoh, J.
Julius Kitbok Dorphang - Appellants
Vs.
State of Meghalaya and Ors. - Respondent
B.A. Nos. 1 of 2019 and 24 of 2018
Decided On : 27-08-2020
For the Appellant : K. Paul, Adv.
For the Respondents: N.D.Chullai, AAG and A.H. Kharwanlang, GA
Headnote:
Bail - POCSO Cases - IPC Section 366(A), 376(2)(i)(n), POCSO Act Sections 3(a), 4, 5, 6, 17, ITP Act Section 5 - The court discussed the provisions of bail jurisprudence, including the principles of bail, discretionary jurisdiction, and factors to be considered for granting bail. The court emphasized the need to balance the right of liberty of an individual and the interest of society, and highlighted the importance of fair trial and public confidence in the criminal justice system. The court dismissed the bail application, emphasizing the gravity of the offences and the potential threat to fair trial and public interest.
Fact of the Case:
The petitioner was accused of illicit sexual intercourse with a minor girl, leading to two criminal cases under IPC Section 366(A), 376(2)(i)(n), POCSO Act Sections 3(a), 4, 5, 6, 17, and ITP Act Section 5. The petitioner filed bail applications, citing prolonged custody and the release of a co-accused as grounds for bail.
Finding of the Court:
The court dismissed the bail application, emphasizing the gravity of the offences, potential threat to fair trial, and public interest. The court directed the Trial Courts to adhere to an outer limit of 6 months for the disposal of the cases.
Issues: The main issues were the petitioner's entitlement to bail based on prolonged custody and the release of a co-accused, and the potential threat to fair trial and public interest.
Ratio Decidendi: The court emphasized the need to balance the right of liberty of an individual and the interest of society, and highlighted the importance of fair trial and public confidence in the criminal justice system. The court also directed the Trial Courts to adhere to an outer limit of 6 months for the disposal of the cases.
Final Decision: The bail application was dismissed, and the Trial Courts were directed to adhere to an outer limit of 6 months for the disposal of the cases.
ORDER :
Wanlura Diengdoh, J.
1. On 23.12.2016, the Chairperson, State Commission for Protection of Child Rights, Meghalaya submitted a complaint to the Superintendent of Police, East Khasi Hills District, Shillong to the effect that Shri. Julius Dorphang, the petitioner herein, had illicit sexual intercourse with a minor girl which is a violation of the child's right to life and dignity.
2. Accordingly, the complaint was received as an FIR and Laitumkhrah P.S. Case No. 239 (12) of 2016 under Section 366 (A) IPC read with Section 3(a)/4/5 of the POCSO Act and Section 5 of the ITP Act was registered in this regard.
3. Again, on 05.01.2017, another FIR was filed by the Chairperson, State Commission for Protection of Child Rights, Meghalaya, alleging that the petitioner herein had committed a similar offence against the same minor victim somewhere within the jurisdiction of Nongpoh, Ri-Bhoi District, leading to the registration of another criminal case being Umiam P.S. case No. 1(01) 2017 under Section 376 (2) (i) (n) IPC read with Section 4/6/17 POCSO Act, and Section 5(I) Immoral Traffic (Prevention) Act, 1956.
4. The petitioner along with some co-accused were arrested and are now in judicial custody.
5. It may be mentioned that the two criminal cases involved the same victim and the petitioner herein as the main accused. By relevant order of the High Court of Meghalaya, the case registered under Laitumkhrah P.S. under the jurisdiction of the Shillong Court was transferred and is now taken up at Jowai, West Jaintia Hills District, while the other case is taken up at Nongpoh, Ri-Bhoi District. Both cases are tried by the respective Special Judge (POCSO).
6. The petitioner filed two separate bail applications both under Section 439 Cr.P.C. before this Court, registered as B.A. Case No. 24 of 2018 relatable to the Laitumkhrah P.S. Case No. 239 (12) of 2016 and another as B.A. Case No. 1 of 2019 related to the Umiam P.S. Case No. 1(01)2017. Both matters being connected, it is deemed convenient and expedient to take up the two together and to pass a common order herein.
7. Heard Mr. K. Paul, learned counsel for the petitioner who has submitted that the petitioner was arrested in the abovementioned POCSO cases and is still in custody for about three and a half years. The status report called by this Court from the Trial Courts revealed that in the case at Nongpoh, the evidence of the prosecution is complete, while in the case at Jowai, no witnesses have been examined so far and considering the prevailing situation, there is no likelihood of the trail proceedings in the near future and the petitioner will continue to linger in jail.
8. Learned counsel for the petitioner has also submitted that the petitioner having been in custody for more than three and a half years, there is no allegation against him that he will evade the process of law. There is also no question that he will hamper the investigation as the charge sheet has already been filed and as submitted earlier, the recording of evidence in the case at Nongpoh has already been completed. In this regard, the case of Sanjay Chandra v. CBI: (2012) 1 SCC 40 at paragraphs 21, 23, 25, 36, 42 & 43 was cited by the learned counsel for the petitioner to support his contention.
9. The second ground raised by the learned counsel for the petitioner is that the co-accused has been released on bail by this Court and as such, on the principle of parity, the petitioner too may be enlarged on bail. The case of Dipak Subhashchandra Mehta v. Central Bureau of Investigation & Anr.: (2012) 4 SCC 134 at paragraph 32 and the case of Nikesh Tarachand Shah v. Union of India & Anr.: (2018) 11 SCC 1 at paragraphs, 19, 24 & 35 was cited by the petitioner in this regard.
10. It is finally prayed that this Court be pleased to enlarge the petitioner on bail with any conditions which will be abided by the petitioner.
11. N.D. Chullai, learned AAG assisted by Mr. A.H. Kharwanlang learned G.A. for the State respondent whi
