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HIGH COURT OF MEGHALAYA AT SHILLONG
W. Diengdoh, J.
Ephina Khonglah - Appellant
Versus
State of Meghalaya. - Respondent
B.A. No. 14 of 2021
Decided On : 22-11-2021
POCSO - Bail Application - Section 439 Cr.P.C. r/w section 31 of the POCSO Act - [5(l)/6 POCSO Act, Section 161 and 164 Cr. P.C., Section 439 Cr.PC, Section 31 of the POCSO Act] - The court discussed the applicability of the POCSO Act, the severity of the offence, and the concept of bail jurisdiction. It highlighted the nature and gravity of the alleged offence, the consensual nature of the act, and the discretion of the court in granting bail.
Fact of the Case:
The accused was charged under the POCSO Act for sexually assaulting a minor. The accused and the victim were involved in a romantic relationship, and the accused was in judicial custody for almost 11 months.
Finding of the Court:
The court considered the consensual nature of the act, the severity of the offence, and the discretion of the court in granting bail. It emphasized the need for judicious exercise of discretion in bail matters.
Issues: The court considered whether the accused could be enlarged on bail given the consensual nature of the act and the severity of the offence under the POCSO Act.
Ratio Decidendi: The court held that the consensual nature of the act and the discretion of the court in bail matters were crucial in determining the grant of bail to the accused.
Final Decision: The accused was directed to be released on bail with specific conditions.
JUDGMENT
1. The applicant has approached this Court with an application under Section 439 Cr.P.C. r/w section 31 of the POCSO Act with a prayer for grant of bail to the accused person Shri Silvester Khonglah.
2. Annexure I to this application is the FIR dated 18.12.2020 lodged by Smti Jushila Mawiong before the Officer-In-Charge, Pynursla Police Station, which contents revealed that a complaint was made against the accused person Silvester Khonglah of Iarbamon village who is said to have picked up the minor daughter of the Complainant on 16.12.2020 at about 12.00 am and has taken her to one place called Nongshyrngan near Bri War Resort and there he had sexually assaulted her and dropped her back to her place of stay. The act of sexual assault was also committed on 11.12.2020. This was narrated to the said Complainant by her said minor daughter. However, the said minor daughter has also stated that when the said act was committed, it was with her (minor daughter) consent. The Complainant though has objected to their relationship as according to her knowledge, underage marriage is illegal.
3. On lodgment of the said FIR, the police of Pynursla immediately took action and the accused person Silverter Khonglah was arrested on 18.12.2020 itself in connection with Pynursla P.S. Case No 70(12) 2020 u/s 5(l)/6 POCSO Act and investigation was launched accordingly.
4. In due course, the investigation was completed, including the recording of statement of the Complainant, the victim and other relevant witnesses under section 161 and 164 Cr. P.C. respectively. The IO then filed the Charge Sheet on 10.03.2021 finding that a prima facie case was duly established against the accused person and prayer was made to put him up for trial. A regular case being Special(POCSO) Case No 10 of 2021 was then registered and the matter is now pending before the learned Special Judge(POCSO), Shillong.
5. Heard Ms. C.B. Sawian, learned counsel for the Applicant who has submitted that from the FIR and the statements of the Complainant, the victim and the Teacher with whom the victim was residing, it can be seen that there is a relationship between the victim and the accused and that both of them are teenagers, the accused person being 19 years old.
6. Ms. Sawian has also submitted that the accused person being a teenager, therefore he is incapable of understanding the consequences of his action and keeping him incarcerated with other inmates, some of whom may be harden criminals will have an impact on his future career.
7. Again, it is submitted that the POCSO Act has been enacted to prevent cases of sexual assault on children, however, the Act does not contemplate punishment of teenagers who are involved in romantic love.
8. Referring to the case of “Vijayalakshmi and Anr. v. State represented by the Inspector of Police and Another” Crl. O.P. No 232 of 2021 and Crl.M.P. No 109 of 2021, para 11,12 and 18, Ms. Sawian has submitted that many High Courts have taken a lenient view in such cases where the accused involved is a teenager and in this regard, charges under POCSO Act and even conviction was set aside and quashed.
9. Another limb of argument raised by Ms. Sawian is that the accused person is in judicial custody for almost 11 months and the POCSO Act stipulates that cases under this Act has to be disposed of within one year which could not be done so in this case and as such, the accused person may be released on bail with any conditions.
10. Mr. B. Bhattarcharjee, learned AAG in his opposition to this application has submitted that the judgment cited by the learned counsel for the Petitioner will have no bearing in this instant case inasmuch as the fact that the accused person is a major, whether he is 19 years or 40 years would make no difference in the eyes of the Law.
11. It is also submitted that the provisions of the POCSO Act does not distinguished the severity of the offence whether it is a result of romantic love or otherwise. The offence committed by the
The consensual nature of the act, the severity of the offence, and the discretion of the court in bail matters are crucial in determining the grant of bail.
The court established that consensual relationships among adolescents should be carefully evaluated under the POCSO Act to avoid unjust criminalization.
Bail is the rule and jail is the exception. The court has discretion to refuse bail when the offence is severe, the evidence is strong, and there is a risk of absconding or tampering with evidence. C....
The age of consent is irrelevant in bail decisions under the POCSO Act; factors such as the nature of the offence and the accused's behavior must guide discretion.
The main legal point established is the need for sound reasoning and consideration of relevant factors in granting bail, especially in cases involving serious offences and statutory presumptions of g....
The court established that a romantic relationship's dynamics and the victim's age, when determined through ossification tests, might mitigate the gravity of charges under the POCSO Act, affecting ba....
Sections 3 of Protection of Children from Sexual Offences Act, 2012 reads as penetrative sexual assault.
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