BA/30/2024 of MERILIN WAHLANG Vs THE STATE OF MEGHALAYA AND 2 ORS. on 13 September 2024

1. The State of MeghalayaRepresented through Secretary and Commissioner,Home Police DepartmentRepresented through Secretary and Commissioner,Home Police Department Government of Meghalaya, Shillong

2. The Superintendent of Police,Shillong East Khasi District, MeghalayaShillong East Khasi District, Meghalaya

3. Smti. Klisda MukhimM/o Miss xxxT/A Mawiong UmjapungP/A Nongkhroh Village Nartiang West Jaintia Hills District Meghalaya - 793151

..….Respondents

Coram:Hon’ble Mr. Justice W. Diengdoh, Judge Appearance:

For the Petitioner/Appellant(s): Ms. S. Nongsiej, Adv.

For the Respondent(s)

: Mr. R. Gurung, GA (For 1 & 2)

Ms. P. Chettri, Legal Aid Counsel

(For R 3)

ORDER (ORAL)

1. Heard Ms. S. Nongsiej, learned counsel for the petitioner who isthe wife of the accused person, Shri. Thosterning Lyngdoh Nonglait.The learned counsel has submitted that the accused person in questionwas arrested on 12.03.2023 in connection with Diengpasoh P.S. CaseNo. 01(03) of 2023 under Section 5(g)/6 of the POCSO Act. The casein the meantime has been charge sheeted and has now proceeded fortrial. Till date only one witness has been examined out of the 32witnesses.

2. The learned counsel has also submitted that this is the secondbail application preferred before this Court, the earlier one beingdisposed of vide order dated 12.06.2024. As has been the submission inthe earlier bail application, the petitioner would stress on the fact thatthat in spite of the relevant provision of Section 35 of the POCSO Actwhich provides for speedy trial inasmuch as the trial court is mandatedto complete the trial within a period of one year, however till date aftermore than one year, as has been submitted only one witness has beenexamined. Therefore the concept of speedy trial has been defeated asfar as the case involving the accused person is concerned.

3. The learned counsel has also submitted that in the previous orderdated 12.06.2024 noticing this aspect of the matter this Court hasdirected the trial court to frame the charges at the earliest and tocommence with the actual trial which was done so. However, again, ashas been submitted, till date only one witness has been examined. Thewitness though being the survivor was examined by the court only twoand a half months ago. This being the case the right of the accusedbeing deprived inasmuch as the cause for speedy trial being hamperedeven admitting that the charges are serious in nature nevertheless underthe facts and circumstances of this case, the accused person in questionis entitled to be granted bail.

4. It is the further submission of the learned counsel that theaccused person is the only bread earner of the family having his agedparents, a wife and a minor daughter to take care of and if not enlargedon bail their survival will be at stake.

5. As to the allegation that if enlarged on bail the accused person inquestion will indulged or rather will threaten the complainant or theaccused, the learned counsel has submitted that the accused person inquestion is a resident of another district, that is, Eastern West KhasiHills District and stays very far away from the residence of thecomplainant and the survivor. There is no question of threat whatsoeverin this regard.

6. Coming back to the issue of speedy trial, the learned counsel hascited the case of Javed Gulam Nabi Shaikh v. State of Maharashtra &Anr., wherein the Hon’ble Supreme Court in Criminal Appeal No. 2787

of 2024 vide order dated 03.07.2024 at para 19 has observed asfollows:

“19. If the State or any prosecuting agency including the courtconcerned has no wherewithal to provide or protect thefundamental right of an accused to have a speedy trial asenshrined under Article 21 of the Constitution then the State orany other prosecuting agency should not oppose the plea for bailon the ground that the crime committed is serious. Article 21 ofthe Constitution applies irrespective of the nature of the crime.”

7. The learned counsel has also cited the case of Shri. BashanbhaSyngkli v. State of Meghalaya wherein in BA No. 15 of 2024 videorder dated 31.05.2024 this Court in a similar case under the POCSOAct at para 7 has discussed the implication of Section 35 vis-à-visspeedy trial and has mandated that it is incumbent upon the trial courtto complete the proceedings as far as possible within a period of oneyear.

8. It is therefore prayed that this petition may be allowed and theaccused person may be enlarged on bail with any conditions that thisCourt may deem fit and proper to be imposed.

9. Per contra, Mr. R. Gurung, learned GA while opposing the bailapplication has impressed upon this Court the seriousness of theoffence wherein the instant case involves the incident of gang rape onthe minor daughter of the complainant and the accused person inquestion has also issued threats upon the complainant and the survivorwhich factor ought to be considered by this Court.

10. It is also the submission of the learned GA that as far as the issueof speedy trial is concerned, the case has proceeded, however the deposition of the complainant is yet to be completed and as such, thisCourt may allow the recording of such deposition to continue. It istherefore prayed that this petition being devoid of merits may berejected.

11. Ms. P. Chettri, learned Legal Aid Counsel appearing on behalf ofthe respondent No. 3/complainant in support of the contention andsubmission made by the learned GA has further submitted that theaccused person has indeed threatened the complainant and the survivorwho are poor and destitute. Under such circumstances, it may not beproper for this Court to enlarge the accused person on bail.

12. This Court has considered the submission made by the partiesand has also gone through the deposition including the annexuresthereto. A copy of the deposition of the survivor has also beenproduced by the learned counsel for the petitioner. To the extent ofrepetition, it may be recalled that the case of the prosecution is that on12.03.2024 at about 12.43 pm a couple being husband and wifeencountered the survivor along the Diengpasoh-Shillong bypass roadwho was crying for help and from her narration of the incident whichtook place, it was understood that she was sexually assaulted by threepersons at Diengpasoh-Shillong bypass road. The said minor girl wasthen handed over to the police who took up the matter and on comingto know of the incident from her, it has been established that threepersons were involved in a case of sexual assault upon the saidsurvivor. Accordingly, the police have registered the said DiengpasohP.S. Case No. 01(03) of 2023 under Section 5(g)/6 of the POCSO Actand eventually, upon investigation being completed, the charge sheet

was filed finding a prima facie case being well established against thethree accused persons. As has been pointed out, the case is now at thetrial stage upon one survivor being examined.

13. This Court has carefully considered the contention raised by thelearned counsel for the petitioner as far as the provision of Section 35of the POCSO Act is concerned. It is a fact that the provision ofSection 35 mandates that the special court shall complete the trial as faras possible within a period of one year from the date of takingcognizance of the offence. So if the charge sheet was taken cognizanceby the Court on 05.06.2023, the trial ought to have been completedwithin 05.06.2024.

14. The provision of sub-Section 2 of Section 35 reads as follows:

“(2) The Special Court shall complete the trial, as far as possible,within a period of one year from the date of taking cognizance ofthe offence” which means that the trial court is to complete thetrial within a period of one year.”

The word “as far as possible” found in this Section wouldindicate that the same is not mandatory but obligatory depending on thecircumstances prevalent. This Court however, even while concedingthat the trial be completed within one year would still give a leeway tothe trial court depending on the understanding of the word “as far aspossible” to say that if the trial could not be completed within one yearand there is a possible explanation to the same, no wrong would havebeen committed by the trial court in this regard if the trial exceeds theone year period.

15. In the earlier application under the facts and circumstancestherein, the trial court on heeding to the direction of this Court passedin the previous order had accordingly complied with the same and hasframed the charges and commence with the examination of thewitnesses. Till date, one witness has been examined and about 32witnesses are left to be examined.

16. It is to be noted that the case under consideration is that of anallegation of gang rape, the seriousness of the offence cannot beminimized and in issues of bail the Court would have to balance theinterest of society, law with that of the interest of the individualconcerned.

17. A perusal of the materials on record though prima facie wouldreveal that the conduct of the three persons including the accusedperson in question and the manner in which the sexual assault wasperpetrated has shocked the conscience of the Court.

18. Under such circumstances, this Court is of the considered viewthat no leniency can be allowed as regard the prayer of the petitioner.

19. The trial court will take its own course as far as completion ofthe trial is concerned. However, considering the facts andcircumstances as on date, this Court is not inclined to allow thepetition, the same is hereby dismissed.

20. Petition disposed of. No costs.

Judge