BA/53/2024 of WITHELSON MARAK Vs STATE OF MEGHALAYA AND ANR. on 30 October 2024

1. This is an application under Section 483 of the BNSS, 2023 witha prayer for grant of bail on behalf of the accused person/petitionerShri. Withelson Marak who is in judicial custody in connection withSpecial (POCSO) Case No. 45 of 2023 arising out of Mawshynrut P.S.Case No. 22(08) of 2023 under Section 5(k)(m)(n)/6 of the POCSOAct, 2012.

2. The brief facts of the case is that an FIR dated 26.08.2023 waslodged by the respondent No. 2 wherein it was alleged that his minordaughter aged about 12 years or so had confessed that the petitioner hadcommitted sexual assault on her person. The FIR was registered asMawshynrut P.S. Case No. 22 (08) of 2023 under Section 5(k)(m)(n)/6of the POCSO Act, 2012 and investigation was launched. In themeantime, the petitioner was arrested on 27.08.2023 and is in custodytill date.

3. The Investigating Officer (IO) on completion of the formalitiesof the investigation of the case had filed the chargesheet dated20.10.2023 and has come to a finding that a well-established primafacie case under Section 5(l)/6 POCSO Act read with Section 506 IPCis made out against the accused/petitioner and he is accordinglydirected to stand trial.

4. The learned Special Court (POCSO), West Khasi Hills District,Nongstoin taking cognizance of the case being registered as Special(POCSO) Case No. 45 of 2023 had framed charges against theaccused/petitioner under the relevant provision of law and apparently on the accused/petitioner denying such charges, the trial continued forrecording of evidence of the prosecution witnesses. Till date, 3(three)witnesses including the survivor out of the total 10(ten) witnesses havebeen examined in court and discharged.

5. Mr. P. Nongbri, learned counsel for the accused/petitioner hassubmitted that the petitioner is before this Court with a prayer for grantof bail on two grounds, firstly that he has been in custody for a verylong time, in fact, about 14 months or so and secondly, that thepossibility of the case being completed in the near future is not possibleconsidering the fact that only 3 witnesses of the 10 witnesses have beenexamined so far. The last witness was examined and discharged on25.04.2024 and since then no further witnesses have been examined tilldate.

6. It is the further submission of the learned counsel that theprovision of Section 35 of the POCSO Act has not been complied withinasmuch as the said provision would stipulate that the trial before theSpecial Court in cases under the POCSO Act should be completedwithin a period of 1(one) year which is not the case herein. The saidprovision placed in juxtaposition with the entitlement of bail, theaccused/petitioner is therefore entitled to be granted bail. The case ofShri. Edwos Syngkli v. State of Meghalaya & Anr. wherein this Courtvide order dated 06.11.2023 in BA No. 36 of 2023 on appreciation andapplication of Section 35 of the POCSO Act to the case of the petitionertherein, had granted bail to the accused person on this ground alone.

7. Even as regard the unduly long period of incarceration of theaccused/petitioner, the learned counsel would submit that his personalliberty as guaranteed under Article 21 of the Constitution of India has

been deprived. Such long incarceration is also frowned upon by theHon’ble Supreme Court wherein in the case of Sheikh Javed Iqbal @Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh, 2024 SCCOnline SC 1755 had granted bail to the appellant therein by observingat para 33 as follows:

“33. Thus, having regard to the discussions made above, we areof the considered view that continued incarceration of theappellant cannot be justified. We are, therefore, inclined to grantbail to the appellant.”

8. The learned counsel has therefore submitted that the petitionermay be granted bail with any conditions that this Court may deemed itfit to impose and the same will be duly complied with.

9. Per contra, Mr. K. Khan, learned P.P has submitted that the factsand circumstances of the case including the testimony of the survivorwherein in the many statements made before the IO and the Magistrate,she had clearly narrated the manner in which the accused/petitioner hadperpetrated the sexual assault, more so, in her deposition before thecourt as a prosecution witness, such vivid narration of how the accusedpetitioner had sexually assaulted her cannot but convinced this Court ofthe gravity and nature of the offence committed by theaccused/petitioner and on such prima facie evidence, he is not entitledto the benefit of being enlarged on bail at this point of time. Thispetition is therefore liable to be dismissed, submits the learned P.P.

10. This Court on consideration of the submission and contentionmade by the parties herein, facts apart, it is noted that theaccused/petitioner has not categorically denied that the alleged act ofsexual assault has not taken place. Instead, the plea for grant of bail hasbeen made only on the two grounds aforementioned.

11. It may be pointed out that at this stage of the trial, though there isno bar for an accused to approach the court with a prayer for grant ofbail, however it is to be mentioned that the petitioner can only plead hiscase on merits.

12. This Court on the insistence of the learned P.P has also perusedthe deposition of the survivor, copy of which is annexed in this petitionand without detailing what has been recorded by the trial court, it isseen that the survivor had depicted the incident(s) of how theaccused/petitioner had violated her to the minutest details which willleave no room for this Court to conclude that the manner in which theaccused/petitioner had committed the offence of sexual assault upon ayoung minor girl of twelve years and that too, one who has moderatemental retardation with 75% disability as mentioned in her IQassessment report, such fact being duly noted by the learned SpecialJudge, POCSO who had recorded her deposition, should fall under thebracket of a very heinous crime.

13. It is also well settled that bail is a discretion to be exercised bythe court taking into account the facts and circumstances of theparticular case, having due regard to the principles and factors to beconsidered while granting or refusing bail, such as the nature andseriousness of the offence. Notwithstanding the length of custodialdetention of the accused/petitioner, at this point of time this Court is notinclined to allow the prayer made in this petition. This petition isaccordingly found to be devoid of merits the same is hereby dismissed.

14. Petitioner disposed of. No costs.

Judge