2024:MLHC:1092
Serial No. 02
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
BA. No. 76 of 2024
Date of Decision: 28.11.2024
Smti. Soloni Pathaw
W/o Shri. Akoi Dohtdong
R/o Umran Niangbyrnai
Ri-Bhoi District, Meghalaya.
::::: Petitioner
-AND-
Shri. Shandiwell Pathaw
S/o Shri. Akoi Dohtdong
R/o Umran Niangbyrnai
Ri-Bhoi District, Meghalaya.
::::: Accused Person
- Vs-
1. The State of Meghalaya Represented by
its Secretary Home (Police) Department.
Government of Meghalaya.
2. Officer-in-Charge, Women P.S. Nongpoh,
Ri-Bhoi District, Meghalaya.
3. Shri. Banpynskhem Kharnaior
H/o Smti. June Mary Jyrwa
R/o Umsning Proper B
Ri-Bhoi District, Meghalaya.
::::: Respondents
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Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. R. Gurung, Adv.
For the Respondent(s) : Mr. S. Sengupta, Addl. PP.
Mr. H. Kharmih, Addl. PP. for R 1 & 2.
Ms. S. Nongsiej, Legal Aid Counsel
For R 3.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER (ORAL)
1. This is an application filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 for grant of bail on
behalf of the accused person, Shri. Shandiwell Pathaw represented by
his mother, the petitioner herein.
2. Heard Mr. R. Gurung, learned counsel for the petitioner, who
has submitted that an FIR dated 30.01.2024 was lodged by the
respondent No. 3, alleging that his minor daughter aged about 13 years
old is in a relationship with the accused person in question, and on
29.01.2024, the duo was caught by the mother of the survivor.
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3. The incident having taken place at the residence of the
survivor, the FIR was accordingly acknowledged and Women P.S. Case
No. 04 (01) 2024 under Section 3(a)/4/5(j)(II)/6 POCSO Act, 2012 read
with Section 376(2)(j) IPC, 1860 was registered. The matter was duly
investigated upon and the Investigating Officer (I/O), after completion
of the investigation, has filed the final report and charge sheet on
27.03.2024 finding a prima facie case well established against the
accused person and that he is to be tried before the competent court of
jurisdiction.
4. The matter is now pending before the Court of the learned
Special Judge (POCSO), Ri-Bhoi District, Nongpoh, who after
consideration of the charges made, has framed charges against the
accused under the relevant provision of the IPC and the POCSO Act
respectively. The stage of the case at present is for recording of evidence
of the prosecution witness. It may be noted that the evidence of the
survivor has since been recorded as PW. 1 and she was discharged
therefrom.
5. The learned counsel has further submitted that the accused
person being a young person of 19 years old is not aware of the
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implication of the law in this regard and had entered into a relationship
with the survivor voluntarily. The act of sexual intercourse in course of
their relationship is also not denied and the same is also with the consent
of the survivor, submits the learned counsel.
6. The learned counsel also submits that the ground for grant of
bail that the petitioner has relied upon at this point of time is firstly, that
the accused person has no criminal antecedent, and would pursue the
matter in course of trial to present his defence. Secondly, that the
accused having been in custody for more than 10(ten) months and since
there is a considerable delay in the trial where, out of six prosecution
witnesses only one witness has been examined so far, under such
circumstances, it is prayed that this Court may be pleased to enlarge the
accused person on bail on the conditions fit to be imposed by this Court.
7. In support of his contention, the learned counsel has also
referred 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 of
2024, this Court, at para 14 of the same, had referred to the case of
Sanjay Chandra v. Central Bureau of Investigation reported in (2012)
1 SCC 40 at para 26, wherein the Hon’ble Supreme Court has observed
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that:
“26. When the under-trial prisoners are detained in jail
custody to an indefinite period, Article 21 of the
Constitution is violated… This Court, in the case of State of
Kerala v. Raneef (2011) 1 SCC 784, has stated:-
"15. In deciding bail applications an important factor
which should certainly be taken into consideration by the
court is the delay in concluding the trial. Often this takes
several years, and if the accused is denied bail but is
ultimately acquitted, who will restore so many years of his
life spent in custody? Is Article 21 of the Constitution,
which is the most basic of all the fundamental rights in
our Constitution, not violated in such a case? Of course
this is not the only factor, but it is certainly one of the
important factors in deciding whether to grant bail. In the
present case the respondent has already spent 66 days in
custody (as stated in Para 2 of his counter-affidavit), and
we see no reason why he should be denied bail. A doctor
incarcerated 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 the
Bastille."
8. Ms. S. Nongsiej, learned Legal Aid Counsel appearing on
behalf of the respondent No. 3 has submitted that the apprehension of
the respondent No. 3 is that his minor daughter is a 13 years old girl and
is pursuing her studies, and, if the accused is enlarged on bail, it will
affect her personality, psychologically and otherwise. It is also the
submission of the learned Legal Aid Counsel that the place of residence
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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 the
relationship, which would be detrimental to the well-being of the
survivor. Hence, the objection raised herein.
9. Mr. S. Sengupta, learned Addl. PP appearing on behalf of the
State respondent Nos. 1 & 2 has submitted that the prosecution in this
case has only a one point argument, that is, considering the fact that
there has been sexual intercourse between the accused person and the
survivor, even, if it is with the consent of the survivor, the fact that she is
a minor of 13 years old, such consent would have no validity in the eyes
of law, and as such, at this stage, it may not be proper for the accused
person to be enlarged on bail.
10. This Court has given due consideration to the submission
made, and has also perused the petition and the annexures therein. As
has been pointed out above, from the submission of the parties, the facts
and circumstances of the case may not be repeated, suffice it to say that
at 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 the
evidence of the witnesses being recorded, the evidence of the PW. 1 i.e.
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the survivor having been recorded on 09.10.2024, we are now in the
month of November, 2024, as such, there is no question of delay as far
as the proceeding is concerned. However, on an overall analysis of the
facts and circumstances of this case, the charge sheet having been filed
which means that investigation is complete. The fact that the survivor
has also given her statement before the court as PW. 1, there is no
possibility of the accused tampering with the evidence or witnesses at
this point of time. It is also to be noted that the question of bail being
granted or not, if granted, is only to ensure that the accused person
appears in court or will not abscond. However, if sufficient surety is
ensured, conditions imposed are adhered to, more often than not, the
court would consider the issue of grant of bail favourably.
11. In the case of Sanjay Chandra (supra), the Hon’ble Supreme
Court at para 21 has observed that:
“21. In bail applications, generally, it has been laid down
from the earliest times that the object of bail is to secure the
appearance of the accused person at his trial by reasonable
amount of bail. The object of bail is neither punitive nor
preventative. Deprivation of liberty must be considered a
punishment, unless it is required to ensure that an accused
person will stand his trial when called upon. The courts owe
more than verbal respect to the principle that punishment
begins after conviction, and that every man is deemed to be
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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 with
the conditions to be imposed. Accordingly, at this point of time, this
Court is inclined to allow this petition.
13. The accused person, Shri. Shandiwell Pathaw is hereby
directed to be released on bail on the following conditions that:
i) He shall not abscond or tamper with the evidence and
witnesses;
ii) He shall not leave the jurisdiction of the State of
Meghalaya without due prior permission of the court
concerned;
iii) He shall appear before the Trial Court as and when
required;
iv) He shall bind himself on a personal bond of ₹ 20,000/-
(Rupees twenty thousand) only with one surety of like
amount 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.
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14. Needless to say, failing to comply with any of the conditions
stated hereinabove, would allow the prosecution to approach the Trial
Court for cancellation of the bail.
15. In view of the above, this petition is accordingly disposed of.
No costs.
Judge
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