Manipur High Court
Central Jail vs District on 24 May, 2022
1
JOHN Digitally signed
by JOHN TELEN
TELEN KOM
Date: 2022.05.26
KOM 10:00:17 +05'30' IN THE HIGH COURT OF MANIPUR
AT IMPHAL
Bail Appln. No.26 of 2021
Thokchom Suraj Singh, aged about 36 years, s/o Th. Kulla Singh a
resident of Keishamthong Moirang Ningthou Leirak, PO & PS-
Imphal, Pin-795001, Imphal West District, Manipur now at Manipur
Central Jail, Sajiwa
......Petitioner
- Versus -
The Officer-in-Charge, Lamphel Police Station, Imphal West
District, PO & PS- Imphal-795001, Manipur.
.... Respondent
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner : Mr. TH. Jugindro, Adv.
For the Respondents : Mr. Y. Ashang, PP.
Date of reserved : 04.05.2022
Date of Judgment & Order : 24.05.2022.
Bail appln.No.26 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 No3/20/10 of 2020 pending on the file of the Fast Track
Special Court No 1, Manipur.
[2] The case of the prosecution is that on 3.10.2019 at about
3.00 a.m., the petitioner, who was working as an ECG technician in
RIMS hospital, sexually assaulted the victim aged about 13 years inside
the ECG room during ECG examination of the victim by locking the door
from inside while the mother of the victim was kept waiting outside the
ECG room. Based on the complaint lodged by the mother of the victim,
the respondent police registered an FIR bearing No.188(10)2019 under
Sections 6/7 of the Protection of Children from Sexual Offences Act,
2012 (hereinafter referred to as "POCSO Act against the petitioner.
[3] Mr. Th. Jugindro, the learned counsel for the petitioner
submitted that the petitioner is an innocent and has been falsely
implicated in the alleged crime. He would submit that before submitting
the charge sheet in connection with the aforesaid FIR, he had co-
operated the investigating officer. Since charge sheet has been filed
Bail appln.No.26 of 2021 Page 2
and the trial is about to begin, there is no question of hamper or tamper
with any prosecution evidence or terrorize the witnesses after the
petitioner is released on bail.
[4] The learned counsel further submitted that the petitioner
is in judicial custody from 3.10.2019 and that there was no prospect the
trial will be conducted in near future as earliest or in other words trial
will take long time. Earlier, the petitioner approached the trial Court for
bail and the same was rejected vide order dated 18.1.2021 in Bail
Application No.5 of 2020 without properly appreciating the submission
of the petitioner.
[5] The learned counsel urged that the medical report of the
victim has been clearly written as there is no injury seen on the body
and according to the examination and recorded findings of the external
genitalla, it is stated that urethral meatus and vestibule, labia majora,
hymen are intact. Therefore, the allegation against the petitioner has
not been supported by medical examination. As such, the petitioner
shall be released on bail.
[6] The learned counsel submitted that as per the documents
including the medical report and the forensic science laboratory reports,
it is clear that no offence under Sections 6/7 of the POCSO Act has
Bail appln.No.26 of 2021 Page 3
been made out against the petitioner and no evidence for the
commission of any sexual offence against the petitioner.
[7] By placing reliance upon the order of this Court in the case
of Nongthombam Ramesh Singh v. State [Bail Application No.16 of
2020 decided on 8.7.2021] and the decision of the Punjab and Haryana
High Court in the case of Kishan Singh v. Punjab State, (1960) CriLJ
850, the learned counsel contended that the general policy of law is to
allow bail rather than refuse it and bail should not be withheld as a
measure of punishment or for the purpose of putting obstacles in the
way of defence.
[8] Per contra, Mr. Y. Ashang, the learned Additional Public
Prosecutor submitted that on interrogation, the petitioner admitted to
have committed the offence charged against him by revealing that he
had raped the victim in the ECG room during ECG examination while
she was alone in the room. When such being the admission, the
petitioner cannot be enlarged on bail considering the gravity of the
offence.
[9] The learned Additional Public Prosecutor further
submitted that the investigation completed and charge sheet filed and
the case is being proceeded as Special Trial Case No.3/20/10 of 2020
Bail appln.No.26 of 2021 Page 4
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 offence
charged against him. He further submitted that if the petitioner is
released on bail, there is likelihood of committing similar offence and
there is also likelihood of influencing prosecution witnesses and
hampering the trial.
[10] This Court considered the submissions made by the
learned counsel for the petitioner and the learned Additional Public
Prosecutor and also perused the materials available on record.
[11] The case of the prosecution is that on 3.10.2019 at about
3.00 a.m., the petitioner sexually assaulted the victim inside the ECG
room during ECG examination by locking the door from inside while the
mother of the victim was kept waiting outside the ECG room. Based on
the complaint lodged by the mother of the victim, the respondent police
registered an FIR bearing No.188(10)2019 under Sections 6/7 of the
POCSO Act against the petitioner.
[12] Admittedly, the investigation has completed and charge
sheet has also been filed and the case has been taken on file as Special
Bail appln.No.26 of 2021 Page 5
Trial (POCSO) Case No.3/20/10 of 2020 on the file of the Fast Track
Special Court No.I, Manipur.
[13] The petitioner was arrested on 3.10.2019 and he was in
custody till date. The bail application moved by the petitioner before
the Fast Track Special Court No.I, Manipur was rejected by the order
dated 18.01.2021 on the ground that the offence levelled against the
petitioner is grave in nature. The petitioner seeking bail mainly on the
ground that he was in custody for more than 2 ½ years without any
progress in the trial.
[14] On the other hand, the learned Additional Public
Prosecutor submitted that cognizance was taken on 24.02.2020, but
due to lockdown and curfew of Covid-19 pandemic, further proceedings
could not be continued. Since the situation is gradually coming to
normalcy, the trial of the case may be proceeded very shortly.
[15] As stated supra, the petitioner is in judicial custody for
more than 2 ½ years. Keeping a under-trial prisoner in custody for
years together and non-progress of the trial was delayed on the ground
of Covid-19 pandemic is not acceptable. In the instant case, when
investigation completed and charge sheet has been filed and the case
is taken on file, the accused person can be enlarged on bail. Though
Bail appln.No.26 of 2021 Page 6
cognizance was taken on 24.02.2020, the trial of the case has not been
commenced and nothing has been produced to show that the
prosecution has taken effective steps to proceed with the matter further.
[16] In the order dated 18.01.2021, the trial Court rejected the
bail petition on the ground that the offence alleged against the petitioner
is grave in nature. Coming to the ground for rejection of the bail by the
trial Court, this Court is of the view that the merits of the offence alleged
against the petitioner cannot 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.
[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 that he
was in custody for more than 2 ½ years.
[18] It appears that the offence alleged was dated 3.10.2019
and the complaint was lodged on the same date and the petitioner was
arrested on 3.10.2019 itself. It is not the case of the prosecution that
the petitioner is delaying the trial of the case and according to the
Bail appln.No.26 of 2021 Page 7
petitioner, there is no question of hamper or tamper with any
prosecution evidence after he is released on bail.
[19] 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
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
[20] 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. 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.
[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 lockdowns and also the restricted functioning
Bail appln.No.26 of 2021 Page 8
of the Courts during pandemic, the trial is delayed. It is to be noted that
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
Sections 6/7 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, (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.
[23] 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.26 of 2021 Page 9
[24] 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."
[25] Time and again, the Hon'ble Supreme 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.
[26] 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
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
Bail appln.No.26 of 2021 Page 10
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 bail 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.
[27] 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
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
Bail appln.No.26 of 2021 Page 11
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.
[28] 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.
[29] 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.
Furthermore, it is the case of the petitioner that he is not getting proper
medical facilities, immediate treatment and regular test due to
pandemic.
Bail appln.No.26 of 2021 Page 12
[30] As stated supra, the petitioner has been charged under
Section 6/7 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 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. During
the course of argument, learned counsel for the petitioner assures that
the petitioner will not hamper or tamper the prosecution witnesses.
[32] Considering the facts and circumstances of the case and
also taking note of the fact that the petitioner is in custody for more than
Bail appln.No.26 of 2021 Page 13
2 ½ years and in view of the undertaking given by the petitioner that he
will not hamper or tamper the prosecution witnesses, this Court
persuaded to grant bail to the petitioner.
[33] Accordingly, the petition is allowed and the petitioner is
ordered to be enlarged on bail in connection with the Special Trial
(POCSO) Case No.3/20/10 of 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 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 shall 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.
Bail appln.No.26 of 2021 Page 14
(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.
(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.
[34] The learned Special Judge, Fast Track Special Court
No.1, Manipur is directed to complete the trial of the case 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.
[35] 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.26 of 2021 Page 15
