DATE OF JUDGEMENT:
10th December, 2021
Justice W. Diengdoh
Appellant: State of Meghalaya
Respondent: Shri. Heibormi Dkhar
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.
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.’
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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