Manipur High Court
Singh Of Samurou Awang Leikai vs The State Of Manipur on 24 May, 2022
1
JOHN Digitally signed
by JOHN TELEN
TELEN KOM
Date: 2022.05.26
KOM 09:59:09 +05'30' IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Bail Appln. No.08 of 2021
Abujam Tombisana Singh, aged about 45 years, s/o late Thabal
Singh of Samurou Awang Leikai, PO & PS Wangoi, Imphal West,
District, Manipur-795009.
......Petitioner
- Versus -
1. The State of Manipur, represented by Secretary(Home), PO & PS
Imphal, Imphal West-795001.
2. The Officer-in-Charge, Wangoi Police Station-795009.
.... Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner : Mr. L. Seityandra, Adv.
For the Respondents : Mr. H. Samarjit, PP.
Date of reserved : 04.05.2022
Date of Judgment & Order : 24.05.2022.
Bail appln.No.08 of 2021 Page 1
JUDGMENT & ORDER
(CAV)
[1] This petition has been filed by the petitioner under Section
439 Cr.P.C to enlarge him on bail in connection with the Special Trial
(POCSO) Case No. 68 of 2020 pending on the file of the Fast Track
Special Court No 1, Manipur.
[2] The case of the prosecution is that on 29.8.2018, the
complainant, father of the victim, lodged a complaint with the Officer-in-
Charge of Wangoi Police Station stating that his daughter, aged 15
years, was staying at the Boarding and Coaching Centre at Samurou
Awang Leikai for her preparation of HSLC Examination, 2018. The said
Boarding and Coaching Centre was run by the petitioner/accused, who
is also the uncle of the complainant. While the victim was staying at the
said Boarding and Coaching Centre, on 13.3.2018 at about 3.30 a.m.,
the accused raped the victim many times by threatening her that he will
make her fail the HSLC Examination. The accused also threatened the
victim not to disclose the act committed by him. Based on the said
complaint, the respondent police registered an FIR bearing
No.43(8)2018 under Section 506 IPC and Section 4 of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred to as
Bail appln.No.08 of 2021 Page 2
"POCSO Act"), upgraded to Section 6 of the said Act against the
petitioner/accused.
[3] Mr. L. Seityandra, the learned counsel for the petitioner
submitted that the petitioner is an innocent and has been falsely
implicated in the alleged crime. Further, there are more than 10 female
students at the boarding run by the petitioner and the students studied
in group and no separate or isolated study rooms were maintained by
the petitioner. In fact the house of the victim was just adjacent to the
boarding and the joint family of the petitioner was also residing adjacent
to the boarding. He would submit that all the female students were
sleeping in the same room and the beds were joined together and it is
absolutely not possible that the petitioner could enter and raped the
victim many times without waking up the other female boarders.
[4] The learned counsel further submitted that the petitioner
is suffering from acute Hemorrhoids and Thrombosed Perianal Varices
and several other ailments and proper treatment could not be taken in
the judicial custody. The learned counsel submitted that the petitioner
has been incarcerated for more than three years and the trial has not
Bail appln.No.08 of 2021 Page 3
been commenced. In such circumstances, the learned counsel prayer
for bail.
[5] Per contra, Mr. H. Samarjit, the learned Additional Public
Prosecutor submitted that on interrogation, the petitioner admitted to
have committed the offence charged against him. The petitioner
disclosed that he was a teacher at the Little Master English School,
Samurou and also running Boarding and Coaching Centre at his house
located at Samurou Awang Leikai. He further disclosed that he
molested the victim girl many times inside his house which was used
as a Boarding and Coaching Centre. After the petitioner sexually
assaulted the victim two times, he threatened the victim not to disclose
the sexual harassment and sexual assault committed by him.
[6] The learned Additional Public Prosecutor further
submitted that investigation completed and charge sheet dated
23.9.2018 has been filed and the case is being proceeded as Special
Trial Case No.68 of 2020 before the learned Fast Track Special Court
No.1, Manipur. He urged that considering the evidence gathered during
the investigation, there is every likelihood of the petitioner being
convicted of the offences charged against him. He further submitted
Bail appln.No.08 of 2021 Page 4
that if the petitioner is released on bail, there is likelihood of committing
similar offence, as he had many negative remarks from the inhabitants
of his locality. There is also likelihood of influencing prosecution
witnesses and hampering the trial.
[7] This Court considered the submissions raised by the
learned counsel for the petitioner and the learned Additional Public
Prosecutor and also perused the materials available on record.
[8] The case of the prosecution is that on 13.03.2018, the
petitioner raped the victim girl, who was staying at his Boarding and
Coaching Centre at Samurou Awang Leikai and the petitioner also
threatened the victim not to disclose the act committed by him. Based
on the complaint dated 29.8.2018 lodged by the father of the victim, the
Wangoi Police registered an FIR against the petitioner under Section 4
upgraded to Section 6 of the POCSO Act and under Section 506 IPC.
[9] According to the prosecution, the investigation has
completed and charge sheet has also been filed and the case has been
taken on file as Special Trial (POCSO) Case No.68 of 2020 on the file
of the Fast Track Special Court No.1, Manipur. However, the trail has
not commenced.
Bail appln.No.08 of 2021 Page 5
[10] The petitioner was arrested on 29.8.2018 and he was in
custody till date. The bail application moved by the petitioner before
the Fast Track Special Court No.1, Manipur was rejected by the order
dated 11.12.2020. The petitioner seeking bail mainly on the ground of
his illness. According to the petitioner, he is suffering from acute
Hemorrhoids and Thrombosed Perianal Varices and also other ailments
and proper treatment could not be done in the judicial custody. The
petitioner has also produced a report of the Medical Officer of the
Manipur Central Jail, Sajiwa to show that he needs required treatment
from a well-equipped health institute where special facilities are
available.
[11] On a perusal of the report of the Medical Officer dated
19.10.2020, it is clear that the petitioner needs treatment outside the
jail, as proper treatment could not be given due to Covid-19 pandemic.
[12] At this juncture, the learned Additional Public Prosecutor
submitted that by stating the same ground, the petitioner has filed bail
application before the trial Court and the same was rejected. When the
Medical Officer of the Jail himself stated that the petitioner needs
outside treatment for his ailment, rejecting the bail on the ground that
Bail appln.No.08 of 2021 Page 6
the jail authorities are making necessary arrangement for the treatment
of the petitioner in JNIS hospital as and when necessary is not
appropriate. Admittedly, the petitioner is in judicial custody for more
than 3 ½ years.
[13] 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.
[14] As stated supra, in the order dated 11.12.2020 of the trial
Court rejecting the bail petition, it has been stated that there is no merit
in granting bail to the petitioner on medical ground. When the Medical
Officer opined that the petitioner needs better treatment from a well
equipped health institution, the trial Court ought not to have rejected the
bail application of the petitioner.
[15] Coming to the ground for rejection of the bail by the trial
Court - gravity of the offence, spirit of the POCSO Act, this Court is of
the view that the merits of the offence alleged against the petitioner
Bail appln.No.08 of 2021 Page 7
cannot now be gone into. It is true that the offence committed by a
person under POCSO Act should not be enlarged on bail like other
offences.
[16] 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 report of the Medical Officer
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.
[17] It appears that the offence alleged was dated 13.03.2018
and the complaint was lodged on 29.8.2018 and the petitioner was
arrested on 29.8.2018. 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 he is released on bail.
[18] In Alakh Alok Srivasta v. Union of India and others, (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
Bail appln.No.08 of 2021 Page 8
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.
[19] Further, as per Section 35 of the POCSO Act, evidence of
the victim/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. The provision 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.
[20] 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 lockdowns and also the restricted functioning
of the Courts during pandemic, 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
Bail appln.No.08 of 2021 Page 9
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, upgraded to Section 6 of the Act, he
cannot be denied bail on the ground that the offence is serious in nature.
[21] In Babba v. State of Maharastra, (2005) 11 SCC 569, the
Hon'ble Supreme Court held that when there is a delay in the trial, bail
should be granted to the accused. In the instant case, admittedly, there
is a delay in the trial.
[22] The petitioner 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.
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.
Bail appln.No.08 of 2021 Page 10
[23] In Sanjay Chandra v. CBI, (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 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."
[24] 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.
[25] The principles relating to grant or refusal of bail have been
stated in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004)
7 SCC 528. In Kalyan Chandra Sarkar (supra), the Hon'ble Supreme
Court observed that the Court granting bail should exercise its
Bail appln.No.08 of 2021 Page 11
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 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.
[26] In Dataram Singh v. State of Uttar Pradesh and another,
(2018) 3 SCC 22, the Hon'ble Supreme Court observed that a
fundamental postulate of criminal jurisprudence is the presumption of
Bail appln.No.08 of 2021 Page 12
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 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 result that more
and more persons are being incarcerated and for longer periods. This
does not do any good to our criminal jurisprudence or to our society.
[27] 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.
[28] To put it shortly, a humane attitude is required to be
adopted by a Judge 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.
Bail appln.No.08 of 2021 Page 13
Furthermore, a prisoner, who is suffering from an ailment, has to be
given due treatment and care while in prison.
[29] In the case on hand, the petitioner was aged more than 45
years and according to the health status of the petitioner submitted by
the Medical Officer of the Central Jail, he is suffering from acute
Hemorrhoids and Thrombosed Perianal Varices. It would be better for
him if he receives treatment from a well-equipped hospital outside the
jail as proper treatment could not be given due to Covid-19 situation in
the jail. Therefore, this Court is of the view that both the ground for long
custody of more than 3 ½ years in jail and on medical ground, the
petitioner is entitled to be enlarged on bail, though the offence allegedly
committed by him is grave in nature.
[30] The petitioner has been charged under Section 4,
upgraded to Section 6 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 Additional 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
Bail appln.No.08 of 2021 Page 14
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.
[31] It is true that victims of POCSO Act are suffering and
facing social stigma, agony and trauma because of the occurrence 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 acute Hemorrhoids and Thrombosed Perianal Varices 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 petitioner for taking better treatment
outside the jail for his ailment.
[32] Accordingly, the petition is allowed and the petitioner is
ordered to be enlarged on bail in connection with the Special Trial
(POCSO) Case No.68 of 2020 on the file of the Fast Track Special
Court No.1, Manipur, subject to his furnishing a personal bond in the
Bail appln.No.08 of 2021 Page 15
sum of Rs. 25,000/- with two local sureties in the like amount to the
satisfaction of the trial Court with the following conditions:
(i) The petitioner shall not leave the place of residence without
permission of the trial Court and shall ordinarily reside at a place of
residence and the complete address of such place shall be furnished to
the trial Court at the time of release.
(ii) The petitioner is directed to report before the respondent Police daily
at 10.00 a.m. for a period of two weeks.
(iii) The petitioner shall appear before the trial Court on all hearing dates
and shall co-operate for speedy disposal of the case.
(iv) If the petitioner has a passport, he shall also surrender the same to
the trial Court.
(v) 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.
(vi) The petitioner shall not tamper with evidence nor otherwise indulge
in any act or omission that would prejudice the proceedings in the
matter.
Bail appln.No.08 of 2021 Page 16
(vii) 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.
[33] The learned Special Judge, Fast Track Court No.1,
Manipur is directed to complete the trial of the case on day to day basis
within a period of six months from the date of receipt of a copy of this
order and send a report to this Court within ten days thereafter.
[34] Any observations made hereinabove shall not be
construed to be a reflection on the merits of the case and shall remain
confined to the disposal of the present bail petition.
JUDGE
FR/NFR
John Kom
Bail appln.No.08 of 2021 Page 17
