BA/71/2024 of MD. RABIL HUSSAIN Vs THE STATE OF MEGHALAYA AND ANR. on 5 November 2024

1. The State of Meghalaya,(Represented by the Public Prosecutor,Meghalaya).2.Morin Jynthem,W/o Shri. Tamlin Shdap @ ShadapR/o Village: Pahammawlein,20[th] Mile ByrnihatP.S. Police Outpost ByrnihatDistrict: Ri-Bhoi, Meghalaya.

…… Opposite Parties

Coram:

Hon’ble Mr. Justice W. Diengdoh, Judge

Appearance:

For the Petitioner/Appellant(s): Mr. B. Chowdhury, Adv.Mr. A. Akbar, Adv.For the Respondent(s): Mr. S. Sengupta, Addl. PP. for R 1.None for R 2.

i) Whether approved for reporting in Yes/No Law journals etc.: Law journals etc.:

ii) Whether approved for publication in press:in press:

Yes/No

JUDGMENT (ORAL)

1. Heard Mr. S. Sengupta, learned Addl. PP appearing for theState respondent No. 1, who has submitted that he is verbally instructedby the respondent No. 2 to set up a joint defence as far as this matter isconcerned. Considering the fact that the respondent No. 2 is residing in aremote area and is unable to engage a private counsel, though a Legal AidCounsel was also offered to her, she had insisted that the State should takeher defence as well.

2. Also heard Mr. B. Chowdhury, learned counsel for thepetitioner, who has submitted that this case has been initiated on the strength of an FIR dated 14.05.2024, wherein the respondent No. 2, whois the mother of the survivor had complained before the Officer-in-Charge, Police Outpost, Byrnihat, stating that Md. Shahab Uddin hadsexually assaulted her minor daughter on 14.05.2024 at about 2:00 AM orso at his rented house which is near her house. Accordingly, an FIR wasregistered as Women P.S. Case No. 19 (05) 2024 under Section 3(a)/4POCSO Act read with Section 376 IPC.

3. In course of investigation, the Investigating Officer (I/O)having completed all formalities has thereafter filed the charge sheet on28.06.2024 finding a prima facie case well-established against the accusedperson and directing him to be tried before the competent court ofjurisdiction. The matter was then taken up by the learned Special Judge(POCSO), Ri-Bhoi District, Nongpoh and the matter is now fixed forconsideration of charge.

4. The learned counsel has further submitted that at this point oftime, this application has been preferred by the brother of the accusedperson in question with a prayer for grant of bail on the ground that theaccused person has been in custody for about 5(five) months or so. He also submits that the accused person has no criminal antecedent and thealleged offence according to the accused person was based on aconsensual act as is reflected from the submission made by the survivorherself before the I/O as well as before the Magistrate under Section 164Cr.P.C, wherein, inter alia, she has stated that she went to the rented roomof the accused person many times and had sexual intercourse with him forfive to six times. It is only on the said date of incident at about 2:00 AMwhen her brother came searching for her that the relationship between herand the accused person in question came to be known. Hence, the FIR.

5. At this point of time, the learned counsel submits that theaccused person being a young man may be allowed to be enlarged on bailso that he can defend his case properly.

At this point of time, the learned counsel submits that the

6. Mr. S. Sengupta, learned Addl. PP has opposed the prayermade, and has stated that inspite of the statement made by the survivorthat the alleged act was consensual in nature, however, the fact that she isbelow the permissible age, consent is immaterial as far as the law isconcerned. Therefore, the prayer made by the learned counsel for thepetitioner may not be allowed, submits the learned Addl. PP.

7. This Court is conscious of the fact that this is a case where anallegation of sexual assault on a minor is involved and prima facie, theevidence would show that the accused person in question is involved inthe said offence. However, on an overall consideration of the facts andcircumstances of the case, coupled with the fact that the survivor herselfhas indicated that the act was consensual in nature, this Court is of theview that the entire matter as far as the merits of the case is concerned,would be finally decided by the Trial Court on appreciation of thecomplete evidence at the end of the trial.

8. Again, taking into account the relationship between theaccused person and the survivor, this Court is inclined to allow thispetition at this point of time.

9. Accordingly, the accused person, Md. Shahab Uddin isdirected to be released on bail on the following conditions that:

i)He shall not abscond or tamper with the evidence orwitnesses;

ii)He shall not leave the jurisdiction of the State of Assam and Meghalaya without the permission of the court concerned;

iii)He shall appear before the Trial Court as and when required;

iv)He shall have no contacts physically or otherwise with the survivor in course of the trial till completion of the same; and

v)He shall bind himself on a personal bond of 30,000/-₹(Rupees thirty thousand) only with two sureties of likeamount to the satisfaction of the Trial Court.(Rupees thirty thousand) only with two sureties of likeamount to the satisfaction of the Trial Court.

10. In view of the above, this application is accordingly disposed of. No costs.

Judge

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