Digitally Signed By vs The State Of Manipur Through The ...
2021 Latest Caselaw 137 Mani

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                                   IN THE HIGH COURT OF MANIPUR
SHAMURAILATP                                 AT IMPHAL
AM SUSHIL
SHARMA                               Bail Application No. 16 of 2020
Digitally signed by
SHAMURAILATPAM SUSHIL
SHARMA
Date: 2021.07.08 13:26:53    Nongthombam Ramesh Singh, aged about 65
+05'30'
                             years, S/o (Late) N. Nodiya Singh of Tera
                             Loukrakpam Leikai, Maibi Leirak, P.O. & P.S.
                             Patsoi, Imphal West District, Manipur now at
                             Manipur Central Jail, Sajiwa.
                                                                            ... Petitioner


                                                - Versus -


                            The State of Manipur through the Officer-in-
                            Charge, Women Police Station, Imphal West
                            District, Manipur.

                                                                       ... Respondent

B E F O R E HON'BLE MR. JUSTICE MV MURALIDARAN

For the petitioner : : Mr. Th. Jugindro, Advocate

For the respondent :: Mr. H. Samarjit, PP.

                  Date of Hearing &
                  Reserving Judgment and        ::
                                                     28.04.2021
                  Order


                  Date of       Judgment    & ::     08.07.2021.
                  Order



       Bail Application No. 16 of 2020
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                                  JUDGMENT & ORDER
                                       (CAV)

This petition has been filed by the petitioner under

Section 439 Cr PC to enlarge him on bail in connection with the

Special Trial (POCSO) Case No. 1/2020/29/2020 pending on the

file of the Fast Track Special Court No I, Manipur.

2. The case of the prosecution is that on 9.2.2019 at

about 1.00 p.m., the petitioner sexually assaulted a minor girl aged

about 9 years Inside his cycle repairing shop. A complaint was

lodged by the mother of the victim girl on the same day before the

Women Police Station, Imphal West and the police registered the

case in FIR No 32(7)2019 under Section 4 of the Protection of

Children from Sexual Offences Act, 2012 After completion of the

investigation, charge sheet for commission of the offence under

Section 4 of the Protection of Children from Sexual Offences Act,

2012 (hereinafter referred to as "POCSO Act") was filed against

the petitioner.

3. The learned counsel for the petitioner submitted that

the petitioner is an innocent and has been falsely implicated in the

alleged crime. Further, the petitioner is an aged person and

suffering from several problems with stomach and pain abdomen

and he has been diagnosing since from the long period. He would

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submit that in fact the Doctor who treated him in the jail

recommended treatment from a well equipped hospital outside the

jail.

4. The learned counsel further submitted that earlier the

petitioner has filed bail application before the trial Court for

releasing him mainly on medical ground. However, the trial Court

rejected the bail application of the petitioner vide order dated

13.11.2020 without considering the plea of the petitioner.

5. The learned counsel for the petitioner then submitted

that the provisions of Cr.P.C. confer discretionary jurisdiction on

criminal Courts to grant ball to the accused pending trial. However,

the trial Court refused to grant bail to the petitioner onmedical

grounds. Since the petitioner needs immediate better treatment

outside the jail, the leamed counsel prayed for bail.

6. Per contra, the learned Public Prosecutor submitted

that a detailed statement of the victim girl was recorded under

Section 161 Cr.P.C., wherein she had stated that on the day of the

Incident, the petitioner forcibly laid her on his bed and sexually

assaulted by closing her mouth. Later she came out running by

pinching his hand and disclosed to her mother. Since the said

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statement of the victim fully supported the complainant‟s

statement, the petitioner cannot be enlarged on bail.

7. The learned Public Prosecutor further submitted that

the Doctor who examined the victim girl opined signs of sexual

assault present and that in her statement recorded under Section

164 Cr.P.C., by the Judicial Magistrate, the victim girl has clearly

narrated the incident.

8. The learned Public Prosecutor then submitted that

the alleged illness of the petitioner is not an immediate threat to

life and it may be cured by proper prescription of medicines which

can be available in the jail itself. According to the learned Public

Prosecutor, the trial Court, after considering all these aspects,

rightly rejected the bail application of the petitioner. Arguing so,

the learned Public Prosecutor prayed for dismissal of the present

bail application.

9. This Court considered the submissions raised by the

learned counsel for the petitioner and the leamed Public

Prosecutor and also perused the materials available on record.

10. The case of the prosecution is that on 9.2.2019 at

about 1.00 p.m., the petitioner sexually assaulted the victim girl

inside one of the complainant‟s shop room rented out to the

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petitioner located at Tera Loukrakpam Leikai. Based on the

complaint lodged by the mother of the victim, the Women Police

Station, Imphal West, registered the FIR under Section 4 of the

POCSO Act against the petitioner and during the course of

investigation the petitioner was arrested on 28.8 2019. The trial

Court taken the cognizance and the case is now pending before

the trial Court.

11. The petitioner seeking bail mainly on the ground of

his illness. According to the petitioner, he was having pain

abdomen, chest pain, back pain reddish discoloration of urine,

palpitation off and on. It is the say of the petitioner that there was

no facility in Manipur Central Jail Sajiwa for treating him. In

support of his plea, the petitioner relied on the letter dated 27

6.2020 of the Senior Medical Officer, Manipur Central Jail Sajiwa

addressed to the Superintendent, Manipur Central Jail, Sajiwa .

12. On a perusal of the said letter dated 27.6.2020, it is

seen that the Doctor attached to the Manipur Central Jail opined

that It would be better for the petitioner to take treatment from a

well equipped hospital outside jail, as proper treatment could not

be given due to Covid-19 related lockdown and non availability

ofgeneral OPDS, JNIMS On 10.7 2020, the Doctor who examined

the petitioner and issued letter to the Superintendent of the

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Central Jail has opined that in spite of medication, his abdomen

pain did not subside.

13. At this juncture, the learned Public Prosecutor

submitted that the petitioner has now filed the present petition on

the same ground as stated in his earlier bail application before the

trial Court and on this ground alone, the present petition deserves

to be rejected. This Court finds no force in the said submission of

the leamed Public Prosecutor.

14. It is settled law that an order refusing an application

for bail does not necessarily preclude another on a later occasion

giving more materials, further developments and different

considerations. While the Court should take into account the

circumstance under which the earlier bail application was rejected,

it cannot be said that the Court is barred from second

consideration at a later stage.

15. In the order dated 13.11.2020 of the trial Court

rejecting the bail petition, it has been observed that as per the

health status report dated 21.10.2020 of the petitioner, the

petitioner was referred to JNIM and medications for hypertensions

and symptomatic have been prescribed However, no immediate

threat to life has been mentioned in the report The observation of

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the trial Court that no immediate threat to life was mentioned in the

report cannot be sustained as the opinion of the Doctor clearly

indicates that the petitioner needs better treatment from a well

equipped hospitaloutside the jail. When that being the opinion of

the Doctor, the trial Court simply observed that no immediate

threat to life has been mentioned in the report.

16. Coming to the another ground for rejection of the bail

by the trial Court - gravity of the offence, spirit of the POCSO Act,

best Interest of the victim child and the general interest of the

public, this Court Is of the view that the merits of the offence

alleged against the petitioner cannot be gone into at this stage. Itis

true that the offence committed by a person under POCSO Act

should not be enlarged on bail like other offences.

17. It is settled that the grant or refusal to grant bail lies

within the discretion of the Court. The grant or denial is regulated

to a large extent by the facts and circumstances of each particular

case. In the case on hand, the petitioner seeks bail mainly on the

ground of his illness, which fact was also evident from the medical

records produced by the petitioner along with the bail petition It is

to be noted that no contra medical records have been produced by

the prosecution,

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18. It appears that the offence alleged was dated

09.02.2019 and the petitioner was arrested on 28 08 2019 It is not

the case of the prosecution that the petitioner is delaying the trial

of the case and according to the petitioner, there is no question of

hamper or tamper with any prosecution evidence after the

petitioneris released on bail. There is also no specific plea in the

affidavit-in-opposition filed by the prosecution that thepetitioner will

hamper and tamper the prosecution witnesses, if he is released on

bail The petitioner says that the residence of the petitioner and the

residence of the prosecutrix are very far away from each other and

as such there is no risk of threat and intimidation by the petitioner,

if the petitioner is released on bail.

19. In Alakh Alok Srivasta v. Union of India and

others, reported in (2018) 17 SCC 291, the Hon„ble Supreme

Court directed for constitution of Special Courts to deal with the

cases under the POCSO Act and issued direction to the High

Courts to give suitable Instructions to the Special Courts to fast

track the cases by not granting unnecessary adjournments and

following the procedure laid down in the POCSO Act and complete

the trial in a time bound manner or within a specific time frame

under the Act.

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20. Further, as per Section 35 of the POCSO Act,

evidence of the child shall be recorded within a period of thirty

days of the Special Court taking cognizance of the offence and the

reason for delay, if any, shall be recorded by the Special Court.

Theprovision of the POCSO Act further provides that the Special

Court shall complete the trial, as far as possible, within a period of

one year from the date of taking cognizance of the offence.

21. In the instant case, there is nothing on record to

show that the petitioner is delaying the trial of the case. May be,

due to Covid-19 pandemic and the related lockdown and also the

restricted functioning of the Courts, the trial is being delayed.

However, when the under-trial prisoners are detained in jail

custody to an indefinite period, Article 21 of the Constitution of

India is violated. Every person, detained or arrested, is entitled to

speedy trial and the Act also provides time frame to complete the

trial. Merely the fact that the offence allegedly committed by the

petitioner was registered under Section 4 of the POCSO Act, the

petitioner cannot be denied bail on the ground that the offence is

serious in nature.

22. In Babba v. State of Maharastra, reported in

(2005) 11 SCC 569, the Hon‟ble Supreme Court held that when

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there is adelay in the trial, bail should be granted to the accused.

In the instant case, admittedly, there is a delay in the trial.

23. As stated supra, the petitioner was aged 65 years

and he is not well and he needs better treatment outside the jail.

The right to ball is not to be denied merely because of the

sentiments of the society and/or community against the accused.

24. The law is well settled that the primary purposes of

ball in a criminal case are to relieve the accused of imprisonment,

to relieve the State of the burden of keeping him, pending the trial,

and at the same time, to keep the accused constructively in the

custody of the Court, whether before or after conviction, to assure

that he will submit to the jurisdiction of the Court and be in

attendance thereon whenever his presence is required.

25. In Sanjay Chandra v. CBI, reported in (2012) 1

SCC 40, the Hon„ble Supreme Court observed as follows:

"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

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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 innocent until duly tried and duly found

guilty."

26. Time and again, the Hon'ble Supreme Court as well

as this Court held that bail is the rule and committal to jail is an

exception The Courts have also observed that refusal of bail is a

restriction on the personal liberty of the individual guaranteed

under Article 21 of the Constitution of India.

27. The principles relating to grant or refusal of bail have

been stated in the case of Kalyan Chandra Sarkar v. Rajesh

Ranjan, reported at (2004) 7 SCC 528. In Kalyan Chandra

Sarkar (supra), the Hon‟ble Supreme Court observed that the

Court granting bail should exercise its discretion in a judicious

Manner and not as a matter of course Though at the stage of

granting bail a detailed examination of evidence and elaborate

documentation of the merit of the case need not be undertaken,

there is a need to indicate In such orders reasons for prima facie

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concluding why bail was being granted particularly where the

accused is charged of having committed a serious offence. Any

order devoid of such reasons would suffer from non-application of

mind. It is also necessary for the Court granting ball to consider

among other circumstances and the following facts also before

granting bail; they are:

(a) The nature of accusation and the severity of

punishment in case of conviction and the

nature of supporting evidence.

(b) Reasonable apprehension of tampering with

the witness or apprehension of threat to the

complainant.

(c) Prima face satisfaction of the Court in support

of the charge.

28. In Dataram Singh v. State of Uttar Pradesh and

another, reported in(2018) 3 SCC 22, the Hon‟ble Supreme

Court observed that a fundamental postulate of criminal

jurisprudence is the presumption of Innocence, meaning thereby

that a person is believed to be innocent until found guilty.

However, there are instances in our criminal law where a reverse

onus has been placed on an accused with regard to some specific

Bail Application No. 16 of 2020 P a g e | 13

offences, but that is another matter and does not detract from the

fundamental postulate in respect of other offences. Yet another

important facet of our criminal jurisprudence is that the grant of

bail is the general rule and putting a person in jail or in a prison or

in a correctional home is an exception. Unfortunately, some of

these basic principles appear to have been lost sight of with the

resultthat more and more persons are being Incarcerated and for

longer periods. This does not do any good to our criminal

jurisprudence or to cur society.

29. Thus, it is clear that grant or denial of bail is entirely

the discretion of the Judge considering the case but even so, the

exercise of judicial discretion has been circumscribed by a large

number of decisions rendered by the Hon‟ble Supreme Court as

well as by the High Courts in the country.

30. To put it shortly, a humane attitude is required to be

adopted by aJudge while dealing with the ball application.Even if

the offence is a serious offence, requires a humane treatment by

the Court, Humane treatment to all including an accused Is

requirement of law. Furthermore, a prisoner, who is suffering from

an ailment, has to be given due treatment and care while in prison.

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31. In the case on hand, as stated supra, the petitioner

was aged 65 years and according to the health status of the

petitioner submitted by the Senior Medical Officer of the Central

Jail to the Superintendent of Police, Manipur Central Jail, the

petitioner was having pain abdomen, chest pain, back pain

reddish discoloration of urine, palpitation off and on for which he

was examined and received treatment from MI room but could not

relieved his symptoms.

32. The report further says that the petitioner was

referred to JNIMS - ATC and examined and yet USG (W) done.

His stomach is distended/dilated (USG) and he has been

prescribed medications. Despite of medications, his symptoms of

chest pain with palpitation and kidney stone related ds,

hypertension could not be relieved and at this condition of his

illness, it would be better for him if he receives treatment from a

well-equipped hospital outside jail as proper treatment could not

be given due to Covid-19 situation. Thus, the report of the medical

officer shows that the petitioner is still suffering from pain

abdomensince a long period and till date and the petitioner is

required proper better treatment outside the jail. Therefore, this

Court Is of the view that on the medical ground, the petitioner is

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entitled to be enlarged on bail, though the offence allegedly

committed by the petitioner is grave in nature.

33. The petitioner has been charged under Section 4 of

the POCSO Act which entails a punishment of not less than seven

years, but which may extent to imprisonment for life with fine. The

learned counsel for the petitioner submitted that the petitioner is

innocent to the alleged crime. On the other hand, it is the

submission of the learned Public Prosecutor that under Section 29

of the POCSO Act, it is presumed that the petitioner has

committed the offence unless the contrary is proved. The

innocence and the alleged Involvement of the petitioner in the

crime cannot now be gone into, as the trial is yet to begin

Therefore, as stated supra, this Court has not delved into the

merits of the case.

34. The trial Court dismissed the bail application of the

petitioner in the general interest of the public as held by the

Hon‟ble Supreme Court in the case of Sanjay Chandra (supra),

right to bail is not to be denied merely because of sentiments of

community against the accused.

35. It is true that victims of POCSO Act are suffering and

facing social stigma, agony and trauma because of the occurrence

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and could not recover completely from the said heinous Incident.

In some of the cases, the minor victims are suffering not only

mental trauma, agony, social ostracisation, but also withdrawn

from the society. However, considering the petitioner‟s medical

condition, which is confirmed by the medical status report, which

shows that the petitioner suffers from various ailments and

therefore that the threat to the petitioner‟s health in the prevailing

times of Covid-19 pandemic is real and imminent and In view of

the assurance extended on behalf of the petitioner that he shall

not hamper or tamper the prosecution witnesses, this Court

persuaded to grant bail to the petitioneronly on medical grounds

for taking better treatment outside the jail.

36. Accordingly, the petition is allowed and the petitioner

is ordered to be enlarged on bail in connection with the Special

Trial (POCSO) Case No.1/2020/29/2020 on the file of the Fast

Track Special Court No.1, Manipur, subject to his furnishing a

personal bond in the sum of Rs. 25,000/- with two local sureties in

the like amount to the satisfaction of the trial Court with the

followingconditions:

(i) The petitioner shall not leave the place of

residence without permission of the Court

and shall ordinarily reside at a place of

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residence and the complete address of

such place shall be furnished to the trial

Court at the time of release.

(ii) The petitioner shall appear before the trial

Court on all hearing dates and shall co-

operate for Speedy disposal of the case.

(iii) If the petitioner has a passport, he shall

also surrender the same to the trial Court.

(iv) The petitioner shall not contact nor visit nor

threaten nor offer any inducement to the

victim or the complainant or any of the

prosecution witnesses.

(v) The petitioner shall not tamper with

evidence nor otherwise Indulge in any act

or omission that would prejudice the

proceedings in the matter.

(vi) It is clarified that if the petitioner misuses

the liberty or violate any of the conditions

Imposed upon him, the prosecution shall be

free to move this Court for cancellation of

the bail.

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(vii) Any observations made hereinabove shall

not be construed to be a reflection on the

merits of the case and shalt remain

confined to the disposal of the present bail

petition.

JUDGE

FR/NFR

Sushil

Bail Application No. 16 of 2020