2024:MLHC:967
Serial No. 02
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
BA No. 53 of 2024
Date of Decision: 30.10.2024
Shri. Withelson Marak
Smti. Saleni S. Marak
Resident of Gohaimara Village,
South West Khasi Hills District
Meghalaya
-versus-
……Petitioner
1. State of Meghalaya, represented by the
Learned Special Public Prosecutor
2. Smti. Lesitha S. Marak
Wife of Shri. Oken K. Marak
Resident of Gahanimara,
South West Khasi Hills District
Meghalaya.
……Respondents
Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. P. Nongbri, Adv.
Mr. M.L. Nongpiur, Adv.
For the Respondent(s) : Mr. K. Khan, P.P with
Mr. S. Sengupta, Addl. P.P
Mr. R. Gurung, GA
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
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ORDER (ORAL)
1. This is an application under Section 483 of the BNSS, 2023 with
a prayer for grant of bail on behalf of the accused person/petitioner
Shri. Withelson Marak who is in judicial custody in connection with
Special (POCSO) Case No. 45 of 2023 arising out of Mawshynrut P.S.
Case No. 22(08) of 2023 under Section 5(k)(m)(n)/6 of the POCSO
Act, 2012.
2. The brief facts of the case is that an FIR dated 26.08.2023 was
lodged by the respondent No. 2 wherein it was alleged that his minor
daughter aged about 12 years or so had confessed that the petitioner had
committed sexual assault on her person. The FIR was registered as
Mawshynrut P.S. Case No. 22 (08) of 2023 under Section 5(k)(m)(n)/6
of the POCSO Act, 2012 and investigation was launched. In the
meantime, the petitioner was arrested on 27.08.2023 and is in custody
till date.
3. The Investigating Officer (IO) on completion of the formalities
of the investigation of the case had filed the chargesheet dated
20.10.2023 and has come to a finding that a well-established prima
facie case under Section 5(l)/6 POCSO Act read with Section 506 IPC
is made out against the accused/petitioner and he is accordingly
directed to stand trial.
4. The learned Special Court (POCSO), West Khasi Hills District,
Nongstoin taking cognizance of the case being registered as Special
(POCSO) Case No. 45 of 2023 had framed charges against the
accused/petitioner under the relevant provision of law and apparently
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on the accused/petitioner denying such charges, the trial continued for
recording of evidence of the prosecution witnesses. Till date, 3(three)
witnesses including the survivor out of the total 10(ten) witnesses have
been examined in court and discharged.
5. Mr. P. Nongbri, learned counsel for the accused/petitioner has
submitted that the petitioner is before this Court with a prayer for grant
of bail on two grounds, firstly that he has been in custody for a very
long time, in fact, about 14 months or so and secondly, that the
possibility of the case being completed in the near future is not possible
considering the fact that only 3 witnesses of the 10 witnesses have been
examined so far. The last witness was examined and discharged on
25.04.2024 and since then no further witnesses have been examined till
date.
6. It is the further submission of the learned counsel that the
provision of Section 35 of the POCSO Act has not been complied with
inasmuch as the said provision would stipulate that the trial before the
Special Court in cases under the POCSO Act should be completed
within a period of 1(one) year which is not the case herein. The said
provision placed in juxtaposition with the entitlement of bail, the
accused/petitioner is therefore entitled to be granted bail. The case of
Shri. Edwos Syngkli v. State of Meghalaya & Anr. wherein this Court
vide order dated 06.11.2023 in BA No. 36 of 2023 on appreciation and
application of Section 35 of the POCSO Act to the case of the petitioner
therein, had granted bail to the accused person on this ground alone.
7. Even as regard the unduly long period of incarceration of the
accused/petitioner, the learned counsel would submit that his personal
liberty as guaranteed under Article 21 of the Constitution of India has
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been deprived. Such long incarceration is also frowned upon by the
Hon’ble Supreme Court wherein in the case of Sheikh Javed Iqbal @
Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh, 2024 SCC
Online SC 1755 had granted bail to the appellant therein by observing
at para 33 as follows:
“33. Thus, having regard to the discussions made above, we are
of the considered view that continued incarceration of the
appellant cannot be justified. We are, therefore, inclined to grant
bail to the appellant.”
8. The learned counsel has therefore submitted that the petitioner
may be granted bail with any conditions that this Court may deemed it
fit to impose and the same will be duly complied with.
9. Per contra, Mr. K. Khan, learned P.P has submitted that the facts
and circumstances of the case including the testimony of the survivor
wherein in the many statements made before the IO and the Magistrate,
she had clearly narrated the manner in which the accused/petitioner had
perpetrated the sexual assault, more so, in her deposition before the
court as a prosecution witness, such vivid narration of how the accused
petitioner had sexually assaulted her cannot but convinced this Court of
the gravity and nature of the offence committed by the
accused/petitioner and on such prima facie evidence, he is not entitled
to the benefit of being enlarged on bail at this point of time. This
petition is therefore liable to be dismissed, submits the learned P.P.
10. This Court on consideration of the submission and contention
made by the parties herein, facts apart, it is noted that the
accused/petitioner has not categorically denied that the alleged act of
sexual assault has not taken place. Instead, the plea for grant of bail has
been made only on the two grounds aforementioned.
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11. It may be pointed out that at this stage of the trial, though there is
no bar for an accused to approach the court with a prayer for grant of
bail, however it is to be mentioned that the petitioner can only plead his
case on merits.
12. This Court on the insistence of the learned P.P has also perused
the deposition of the survivor, copy of which is annexed in this petition
and without detailing what has been recorded by the trial court, it is
seen that the survivor had depicted the incident(s) of how the
accused/petitioner had violated her to the minutest details which will
leave no room for this Court to conclude that the manner in which the
accused/petitioner had committed the offence of sexual assault upon a
young minor girl of twelve years and that too, one who has moderate
mental retardation with 75% disability as mentioned in her IQ
assessment report, such fact being duly noted by the learned Special
Judge, POCSO who had recorded her deposition, should fall under the
bracket of a very heinous crime.
13. It is also well settled that bail is a discretion to be exercised by
the court taking into account the facts and circumstances of the
particular case, having due regard to the principles and factors to be
considered while granting or refusing bail, such as the nature and
seriousness of the offence. Notwithstanding the length of custodial
detention of the accused/petitioner, at this point of time this Court is not
inclined to allow the prayer made in this petition. This petition is
accordingly found to be devoid of merits the same is hereby dismissed.
14. Petitioner disposed of. No costs.
Judge
Signature Not Verified 5
Digitally signed by
TIPRILYNTI KHARKONGOR
Date: 2024.10.30 19:49:11
PDT