BA/76/2024 of SOLONI PATHAW Vs THE STATE OF MEGHALAYA AND 2 ORS. on 28 November 2024

1. The State of Meghalaya Represented by its Secretary Home (Police) Department.Government of Meghalaya.its Secretary Home (Police) Department.Government of Meghalaya.

2. Officer-in-Charge, Women P.S. Nongpoh,Ri-Bhoi District, Meghalaya.Ri-Bhoi District, Meghalaya.

3. Shri. Banpynskhem KharnaiorH/o Smti. June Mary JyrwaR/o Umsning Proper BRi-Bhoi District, Meghalaya.

:::::Respondents

Coram:

Hon’ble Mr. Justice W. Diengdoh, Judge

Appearance:

For the Petitioner/Appellant(s): Mr. R. Gurung, Adv.

i) Whether approved for reporting in Law journals etc.: Law journals etc.:

Yes/No

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

Yes/No

JUDGMENT AND ORDER (ORAL)

1. This is an application filed under Section 483 of theBharatiya Nagarik Suraksha Sanhita (BNSS), 2023 for grant of bail onbehalf of the accused person, Shri. Shandiwell Pathaw represented byhis mother, the petitioner herein.

2. Heard Mr. R. Gurung, learned counsel for the petitioner, whohas submitted that an FIR dated 30.01.2024 was lodged by therespondent No. 3, alleging that his minor daughter aged about 13 yearsold is in a relationship with the accused person in question, and on29.01.2024, the duo was caught by the mother of the survivor.

3. The incident having taken place at the residence of thesurvivor, the FIR was accordingly acknowledged and Women P.S. CaseNo. 04 (01) 2024 under Section 3(a)/4/5(j)(II)/6 POCSO Act, 2012 readwith Section 376(2)(j) IPC, 1860 was registered. The matter was dulyinvestigated upon and the Investigating Officer (I/O), after completionof the investigation, has filed the final report and charge sheet on27.03.2024 finding a prima facie case well established against theaccused person and that he is to be tried before the competent court ofjurisdiction.

4. The matter is now pending before the Court of the learnedSpecial Judge (POCSO), Ri-Bhoi District, Nongpoh, who afterconsideration of the charges made, has framed charges against theaccused under the relevant provision of the IPC and the POCSO Actrespectively. The stage of the case at present is for recording of evidenceof the prosecution witness. It may be noted that the evidence of thesurvivor has since been recorded as PW. 1 and she was dischargedtherefrom.

5. The learned counsel has further submitted that the accusedperson being a young person of 19 years old is not aware of the implication of the law in this regard and had entered into a relationshipwith the survivor voluntarily. The act of sexual intercourse in course oftheir relationship is also not denied and the same is also with the consentof the survivor, submits the learned counsel.

6. The learned counsel also submits that the ground for grant ofbail that the petitioner has relied upon at this point of time is firstly, thatthe accused person has no criminal antecedent, and would pursue thematter in course of trial to present his defence. Secondly, that theaccused having been in custody for more than 10(ten) months and sincethere is a considerable delay in the trial where, out of six prosecutionwitnesses only one witness has been examined so far, under suchcircumstances, it is prayed that this Court may be pleased to enlarge theaccused person on bail on the conditions fit to be imposed by this Court.

7. In support of his contention, the learned counsel has alsoreferred to the case of Smti. Masbon Syiem v. The State of Meghalaya& Anr, wherein vide order dated 22.05.2024 passed in BA. No. 16 of2024, this Court, at para 14 of the same, had referred to the case ofSanjay Chandra v. Central Bureau of Investigation reported in (2012)1 SCC 40 at para 26, wherein the Hon’ble Supreme Court has observed that:

“26.When the under-trial prisoners are detained in jailcustody to an indefinite period, Article 21 of theConstitution is violated…This Court, in the case of State ofKerala v. Raneef (2011) 1 SCC 784, has stated:- "15. In deciding bail applications an important factorwhich should certainly be taken into consideration by thecourt is the delay in concluding the trial. Often this takesseveral years, and if the accused is denied bail but isultimately acquitted, who will restore so many years of hislife spent in custody? Is Article 21 of the Constitution,which is the most basic of all the fundamental rights inour Constitution, not violated in such a case? Of coursethis is not the only factor, but it is certainly one of theimportant factors in deciding whether to grant bail. In thepresent case the respondent has already spent 66 days incustody (as stated in Para 2 of his counter-affidavit), andwe see no reason why he should be denied bail. A doctorincarcerated for a long period may end up like Dr.Manette in Charles Dicken's novel A Tale of Two Cities,who forgot his profession and even his name in theBastille."

8. Ms. S. Nongsiej, learned Legal Aid Counsel appearing onbehalf of the respondent No. 3 has submitted that the apprehension ofthe respondent No. 3 is that his minor daughter is a 13 years old girl andis pursuing her studies, and, if the accused is enlarged on bail, it willaffect her personality, psychologically and otherwise. It is also thesubmission of the learned Legal Aid Counsel that the place of residence of the survivor and the accused person is not very far, and as such, there is a possibility of the two meeting together to continue with therelationship, which would be detrimental to the well-being of thesurvivor. Hence, the objection raised herein.

9. Mr. S. Sengupta, learned Addl. PP appearing on behalf of theState respondent Nos. 1 & 2 has submitted that the prosecution in thiscase has only a one point argument, that is, considering the fact thatthere has been sexual intercourse between the accused person and thesurvivor, even, if it is with the consent of the survivor, the fact that she isa minor of 13 years old, such consent would have no validity in the eyesof law, and as such, at this stage, it may not be proper for the accusedperson to be enlarged on bail.

10. This Court has given due consideration to the submissionmade, and has also perused the petition and the annexures therein. Ashas been pointed out above, from the submission of the parties, the factsand circumstances of the case may not be repeated, suffice it to say thatat present, the accused person has been in custody for the last 10(ten)months or so. It is also a fact that the case is proceeding with theevidence of the witnesses being recorded, the evidence of the PW. 1 i.e.

This Court has given due consideration to the submission

the survivor having been recorded on 09.10.2024, we are now in themonth of November, 2024, as such, there is no question of delay as faras the proceeding is concerned. However, on an overall analysis of thefacts and circumstances of this case, the charge sheet having been filedwhich means that investigation is complete. The fact that the survivorhas also given her statement before the court as PW. 1, there is nopossibility of the accused tampering with the evidence or witnesses atthis point of time. It is also to be noted that the question of bail beinggranted or not, if granted, is only to ensure that the accused personappears in court or will not abscond. However, if sufficient surety isensured, conditions imposed are adhered to, more often than not, thecourt would consider the issue of grant of bail favourably.

11. In the case of Sanjay Chandra (supra), the Hon’ble SupremeCourt at para 21 has observed that:

“21.In bail applications, generally, it has been laid downfrom the earliest times that the object of bail is to secure theappearance of the accused person at his trial by reasonableamount of bail. The object of bail is neither punitive norpreventative. Deprivation of liberty must be considered apunishment, unless it is required to ensure that an accusedperson will stand his trial when called upon. The courts owemore than verbal respect to the principle that punishmentbegins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.”

12. As to the apprehension of the respondent No. 3, it would be incumbent upon the accused person, if enlarged on bail to comply withthe conditions to be imposed. Accordingly, at this point of time, thisCourt is inclined to allow this petition.

13. The accused person, Shri. Shandiwell Pathaw is herebydirected to be released on bail on the following conditions that:

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

ii)He shall not leave the jurisdiction of the State ofMeghalaya without due prior permission of the courtMeghalaya without due prior permission of the court concerned;

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

iv)He shall bind himself on a personal bond of 20,000/-₹

(Rupees twenty thousand) only with one surety of likeamount to the satisfaction of the Trial Court; andamount to the satisfaction of the Trial Court; and

v)He shall have no contact whatsoever with the survivor till the disposal of the case before the Trial Court.

14. Needless to say, failing to comply with any of the conditionsstated hereinabove, would allow the prosecution to approach the TrialCourt for cancellation of the bail.

15. In view of the above, this petition is accordingly disposed of.

No costs.

Judge