DATE OF JUDGEMENT:
10th December, 2021
JUDGES:
Justice W. Diengdoh
PARTIES:
Appellant: State of Meghalaya
Respondent: Shri. Heibormi Dkhar
SUBJECT
In the following judgement the honourable High Court Meghalaya explained how granting bail on humanitarian grounds is not legally tenablewhen the the circumstances of the case allude to the guilt of the accused, and the offences framed against the accused are of serious nature.
OVERVIEW
1.An application under Section 439(2) read with Section 482 Code of Criminal Procedure 1973 (C.r.P.C.) by State of Meghalaya (Petitioner) was made before the High Court of Meghalaya against an Order passed by the learned Special Judge (POCSO), Khliehriat, East Jaintia Hills District of Meghalaya, whereby the Court granted the bail to the accused/respondent herein, under Section 363/364/302/201 IPC r/w Section 11/12 of the POCSO Act.
2.Before adverting to the merits of the argument of the parties, the court went into summarizing the facts of the case:
a)On 13th March .2021, the police received telephonic information that one female dead body was found lying inside a jungle at 2 Kilo Wah Umbhuh Wai Khyrwi. On being certain of the identity of the deceased, one of the family members lodged a formal FIR the same day.
b)The investigation eventually led to the arrest of Shri Heibormi Dkhar as the prime suspect. The accused was then forwarded to the Court on 27th March 2021 and was remanded to police custody and thereafter sent to judicial custody. The charge sheet was later filed which remarked that a prima facie case is found well established against the accused Heibormi Dkhar under Section 364/302/201 IPC r/w Section 3(a)/4/11(iv)/12 POCSO Act and he was forwarded to the Court for trial.
c)On 24.06.2021 a bail application under Section 439 Cr.P.C. was moved on behalf of the accused by his father and the learned Special Judge (POCSO), Khliehriat upon hearing the learned Counsel for the Petitioner as well as the learned Special PP (Public Prosecutor) granted the bail to the accused on humanitarian and medical grounds as the accused was suffering from kidney stones.
d)Being aggrieved by the said order, the State of Meghalaya (Petitioner) moved to the High Court of Meghalaya seeking cancellation of the bail order.
3.The counsel for the petitioners mainly argued that in the order of the learned Special Judge, (POCSO) ‘there was no application of mind and the same was passed in a mechanical manner’ and the learned judge also failed to assess the gravity of the offence as the victim was kidnapped, raped and murdered.
4.The counsel for the petitioners also questioned the material grounds of granting the bail, stating that the accused was receiving the treatment in the jail itself on account of having kidney stones and the accused resides next door to the family of the victim and ‘would have easy access to the witnesses and having a significant sway over the local community, he can easily influence and even threaten the witnesses.
5.The counsel for the petitioner further argued that ‘Section 29 of the POCSO Act mandates that the Court is required to presume the guilt of the accused until proven otherwise was not followed by the learned Special Judge while passing the impugned order granting bail to the accused/Respondent.’
6.The counsel for the respondent argued how ‘under Section 437 Cr.P.C., it is clearly provided that bail can be given under certain exceptions, one of them is the ground of sickness’.
7.The counsel for the respondent questioned the jurisdiction of the court in the matter and argued that ‘the State/Petitioner has not resorted to the provision of Section 437(5) Cr.P.C. which provides that orders such as the one impugned herein ought to have been challenged before the self-same Court, but instead the State/ Petitioner has directly approach this Court.’
IMPORTANT PROVISIONS
Code of Criminal Procedure 1973
- Section 437- When bail may be taken in case of a non-bailable offence.
- Section 439 (2)- A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
- Section 482- 482 – Saving of inherent power of High Court
Indian Penal Code 1974
- Section 201- Causing disappearance of evidence of offence, or giving false information to screen offender.
- Section 302- Punishment for murder.
- Section 363- Punishment for kidnapping.
- Section 364- Kidnapping or abducting in order to murder.
The Protection of Children from Sexual Offences Act, 2012
- Section 11- Sexual harassment.
- Section 12- Punishment for sexual harassment.
- Section 29- Presumption as to certain offences.
JUDGEMENT
- The honourable high court noted the power to grant bail by the competent court under section 437 and 439 CRPC and explained that ‘this power is a plenary power circumscribed by the exercise of discretion and as such, an exercise of power to grant bail or to refuse bail cannot be upset without very strong and cogent reasons.’
- However, the court further explained how this power of lower courts, although discretionary, can be scrutinized by the higher courts where they can reverse or cancel the bail granted by ‘giving a proper explanation’ The court relied on the excerpt from the case of State of Kerala V Mahesh which explained the discretionary power and parameter under which bail can be exercised.
- The court acknowledged how the offences framed against the accused are ‘very serious offences’ and recognized how ‘in bail jurisprudence the concept of granting bail on humanitarian ground is not so prevalent and the same is not legally tenable which also renders the impugned order passed on this account to fail the scrutiny of law.’
- The court also accepted the arguments of the counsel for petitioner and relied on judgement in case of Kanwar Singh Meena V State of Rajasthan which held- If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail.
- The court at the end noted that ‘impugned order was passed without due application of mind and the discretionary power was not exercised judiciously’. Consequently, the court quashed the bail order.
CONCLUSION
The court in the present case has rightly exercised its powers and competently explained how the special judge didn’t aptly consider circumstances of the case while granting the bail to the accused. The judgement also signifies how the charges framed under POCSO act are generally grave it nature, and the court must consider the relevant circumstances of the case in light of charges framed to deliver a fitting judgement.
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