IMPORTANT POINT
The nature and gravity of the alleged offence, the conduct of the accused, and the need for thorough investigation are key considerations in the grant or refusal of bail.

JUDGMENT

1. An FIR dated 07.05.2022 was lodged by one Shri Telbi D. Sangma (respondent No.2) before the Officer-In-Charge Tura Women Police Station wherein, an incident which occurred on 26.04.2022 in which the cousin sister of the complainant aged about 14 years old and who is also said to be mentally retarded was raped by the petitioner herein. The incident occurred at Abisella Bolchugre, West Garo Hills. It is also further stated that the incident was witnessed by the uncle of the victim girl.

2. On receipt of the said FIR, Tura Women PS Case No. 57(5) of 2022 under Section 5(k)/6 of the POCSO Act was registered. The Investigating Officer (I/O) who was entrusted with the investigation of the case has accordingly proceeded as per procedure and has firstly made arrangement for medical examination of the victim at the Maternity and Child Hospital, Tura on 06.05.2022. Thereafter, the I/O has also recorded the statement of the victim as well as the relevant witnesses to the case. The I/O however, could not apprehend the accused/petitioner as he could not be found in his place of residence.

3. The petitioner in the meantime, apprehending arrest in connection with the abovementioned case, had approached the court of the learned Special Judge (POCSO) West Garo Hills, Tura with a prayer for grant of pre-arrest bail but the same was rejected without being heard on merits. The petitioner has accordingly now approached this Court with this instant application under Section 438 Cr.PC with a prayer for grant of anticipatory bail.

4. Mr. M.Kr. Das, learned counsel for the petitioner has submitted that the petitioner is not at all involved in the case, infact the named accused in the FIR is one Mr. Abden Ch. Marak while the name of the petitioner is Shri Aten Marak. However, the police had come looking for the petitioner in connection with the said case.

5. The learned counsel for the petitioner has also submitted that the alleged incident took place on 26.04.2022, however, the FIR was filed after a lapse of 11 days that is on 07.05.2022 inspite of the fact that an eye witness was present on the day when the alleged incident took place, but there was no hue and cry raised by this witness and as such, the occurrence of the said incident is very doubtful.

6. The learned counsel has also raised the issue of age of the alleged victim girl who is stated to be about 14 years old on the day of the incident but her age has not yet been confirmed and as such, in the event she is found to be 18 years old or more, the case of the prosecution under the POCSO Act would not be relevant.

7. The learned counsel has again submitted that the petitioner while preferring this instant application was allowed to go on interim bail by this Court vide order dated 30.09.2022 and in compliance with the Court's order he has accordingly appeared before the I/O and his statement was recorded. In view of this fact, there is no useful purpose for a custodial detention of the petitioner.

8. Further submitting that the petitioner belongs to a reputed family with a sound standing in the society and locality therefore, if enlarged on pre-arrest bail, there is no likelihood of his absconding or fleeing from justice for which an undertaking will be given by the petitioner to abide by any condition to be imposed by this Court. It is therefore prayed that this petition may be allowed and the petitioner may be enlarged on bail in the event of his arrest.

9. Mr. K.P. Bhattacharjee, learned GA appearing for the State respondent has submitted that this is not a fit case to enlarge the petitioner on pre-arrest bail since his conduct has proved that he has not cooperated with the investigating agency since he had absconded and could not be found at the relevant time when the police required to question him and it was only when he was granted interim bail that he appeared before the I/O.

10. Even otherwise, the petitioner has been named as the perpetrator of the crime against the minor girl as