Bankhmih Nongrum vs State of Meghalaya

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Megh) 19

IN THE HIGH COURT OF MEGHALAYA AT SHILLONG
W. DIENGDOH, J.
Shri. Bankhmih Nongrum – Appellant
Versus
State of Meghalaya & 2 Ors. – Respondents
BA. No. 6 of 2023
Decided on : 03-05-2023

Advocates:
Advocate Appeared:
For the Appellant : Mr. N.M. Mansuri, Adv.
For the Respondent: Mr. H. Kharmih, Addl. PP., Ms. P. Riahtam, Adv.

Headnote:(A) Criminal Procedure Code, 1973 - Section 439 - Protection of Children from Sexual Offences Act, 2012 - Sections 5(j)(ii) & 6 - Bail application - Petitioner seeking bail in connection with a case involving a minor's pregnancy, asserted the relationship was consensual and the FIR was filed due to hospital protocols - Court emphasized that the POCSO Act aims to protect minors from exploitation and should not criminalize consensual adolescent relationships, highlighting that ‘the Act was never meant to criminalise consensual romantic relationships between adolescents’ (Para 6) - Bail is generally favored unless specific circumstances warrant denial, emphasizing ‘the principle that bail is the rule and jail is the exception’ (Para 12). (Paras 2-14)

Findings of Court:
The petitioner is granted bail under conditions aimed at ensuring he does not abscond or tamper with evidence. (Para 14)

Issues: Whether the relationship was consensual and if the FIR was appropriate, leading to the necessity for bail.

Ratio Decidendi: The court ruled in favor of bail, considering the particulars surrounding the relationship and highlighting the principles of personal liberty and justice, stating the need for ‘proper adjudication’ and the nature of allegations in the context of bail (Paras 13 & 14).

Result: Bail application granted.

Table of Content
1. application for bail in a pocso case. (Para 1 , 2 , 3)
2. arguments regarding consensual relationship and intent of the complainant. (Para 4 , 5 , 6 , 7)
3. court's observation on the relationship corroborated by evidence. (Para 9 , 10)
4. principles and considerations governing the grant of bail. (Para 11 , 12)
5. decision to grant bail with specific conditions. (Para 13 , 14 , 15 , 16)

JUDGMENT :

W. DIENGDOH, J.

1. The petitioner has come before this Court with an application under Section 439 Cr.P.C with a prayer for grant of bail in connection with Laban P.S. Case No. 13 (02) of 2023 under Section 5 (j)(ii)/6 of the POCSO Act.

2. Mr. N.M. Mansuri, learned counsel appearing on behalf of the petitioner has submitted that an FIR/Written Information dated 01.02.2023 was lodged by the respondent No. 3, informing the police that she is the mother of a minor girl aged about 15 years who on a complaint of abdominal pain, she was taken to the Civil Hospital, Shillong for treatment, however after medical examination, it was found out that she was pregnant and the minor girl was then taken to Ganesh Das Hospital to undergo an abortion process since she is still a student. The informant has also stated that her minor daughter had informed her that her pregnancy was a result of a mistake she made with the petitioner herein.

3. On receipt of the said FIR, a police case was registered being Laban P.S. Case No. 13 (02) of 2023. On investigation being undertaken, the petitioner was arrested on 03.02.2023 and is still in custody till date.

4. The learned counsel has also submitted that the case should not have been registered under the said provisions of Section 5 (j)(ii) & 6 of the POCSO Act as there was no element of sexual assault since the relationship between the petitioner and the alleged victim girl is one of consensual relationship and the physical sexual contact and intercourse was voluntary and therefore, there is no credence to the allegations made by the prosecution.

5. The learned counsel has also submitted that the respondent No. 3 herein has realized that the compliant that she made was not intended to cause the arrest of the petitioner, but that she has made the complaint only on being directed by the hospital authority. In this regard, the respondent No. 3 has also filed an affidavit annexed as Annexure-III to this application, stating that she had not filed any FIR against the accused person and that she has no objection if the accused person is released on bail.

6. In the context of the offence said to be made out against the petitioner under the provisions of the POCSO Act, the learned counsel has submitted that in the facts and circumstances of the relationship between the petitioner and the alleged victim girl, the observation of the Hon’ble Allahabad High Court in the case of Krishana v. State of U.P & 3 Ors: Criminal Misc. Bail Application No. 3124 of 2023, the Court in its order dated 15.03.2023 at para 7 of the same has observed as follows:

“7. POCSO Act was formulated to protect children under the age of 18 years from sexual exploitation. Nowadays more often than not it has become a tool for their exploitation. The Act was never meant to criminalise consensual romantic relationships between adolescents. However, this has to be seen from the facts and circumstances of each case. The fact of consensual relationship borne out of love should be of consideration while granting bail because it would amount to perversity of justice if the statement of victim was ignored and accused was left to suffer behind jail.”

7. However, for the limited purpose of this application, the learned counsel has submitted that the petitioner is a young person and is earning his livelihood to support his family and as such, he may be released on bail with any conditions that this Court may deemed fit and proper to impose.

8. Mr. H. Kharmih, learned Addl. PP appearing on behalf of the State respondents No. 1 & 2 has submitted that the c