Manipur High Court
Shri R Ariya vs The Officer-In-Charge on 14 August, 2024
KHOIROM Digitally signed by
KHOIROM
BIPINCHAN BIPINCHANDRA SINGH IN THE HIGH COURT OF MANIPUR
Date: 2024.08.14
DRA SINGH 11:31:45 +05'30' AT IMPHAL
AB NO. 19 OF 2024
Shri R Ariya, aged about 69 years, son of (L) R Khalui, a
permanent resident of Chingjaroi Khunou Village, B.P.O
Chingjaroi, P.S-Jessami, District-Ukhrul, Manipur-795142.
.... Petitioner
- Versus -
The Officer-in-charge, Women Police Station, Ukhrul HQ, P.O
& P.S-Ukhrul, Ukhrul District, 795142, Manipur.
.... Respondent
BEFORE
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the petitioner : Mr. Worshingpam H, Advocate
For the respondent : Mr. Y. Ashang, Public Prosecutor
Date of hearing : 02.08.2024
Date of judgment & order : 14.08.2024
AB No. 19 of 2024 Page 1
JUDGEMENT & ORDER
(CAV)
[1] Heard Mr. Worshingpam H, learned counsel appearing for
the petitioner and Mr. Y. Ashang, learned PP appearing for the
respondent.
[2] The present application has been filed under Article 227
of the Constitution of India r/w Sections 482, 438 of Cr.P.C, 1973 with
prayer to release the accused/petitioner on bail in the event of his
arrest in connection with FIR No. 3(6)2024, WPS/UKL U/S 8 POCSO,
Act, 2012 with the following prayers:
"(i) grant anticipatory bail to the accused/applicant u/s 438
Cr.P.C. in connection with FIR No. 3(6)2024, WPS/UKL
dated 03.06.2024 with conditions as this Hon'ble Court
may deem fit and proper.
(ii) set aside the order dated 09.07.2024 passed by the
Hon'ble Court of the Special Judge (POCSO), Ukhrul."
[3] The brief fact of the petitioner's/accused's case is that he
is serving as a Pastor for Kharasom Lazo Village, Ukhrul District and
holds a reputable status in the society with no negative remark and
without any criminal antecedent. The learned counsel for the
petitioner/accused submits that he is at an advanced stage of age and
is suffering from various ailments ranging from chronic asthma,
diabetes and other old age related ailments, requiring constant medical
observations and treatments, resulting from the physical assault
inflicted on his body by the Kharasom Villagers in connection with the
AB No. 19 of 2024 Page 2
present FIR case. He further submits that the petitioner/accused is
innocent and has been falsely implicated into the alleged offence and
there are also no prima facie to indicate any motive or intention of the
petitioner/accused to commit an offence punishable u/s 8 of the
POCSO, Act. It has also been submitted that the cause of action arose
on 08.05.2024 and the complainant has lodged the complaint/FIR on
03.06.2024, nearly after a gap of one month with ulterior motives and
due to long pending inter village feud without any substance with an
intent to harass, torture and tarnished the image of the present
petitioner/accused.
[4] The learned counsel for the petitioner/accused submits
that upon apprehension of his arrest the petitioner/accused approached
the Ld. Special Judge (POCSO), Ukhrul with a prayer to grant
Anticipatory Bail and after having being satisfied, the Ld. Special Judge
(POCSO), Ukhrul grant Ad-interim bail to the petitioner/accused on
10.06.2024. He further submits that the I.O of the case submitted his
bail objection dated 05.07.2024 wherein, it was reported that the
statement of the petitioner/accused was obtained and has been co-
operating with the investigation even though statement is not
satisfactory. However, the Ld. Special Judge (POCSO), Ukhrul cancelled
the Ad-interim bail order dated 10.06.2024 on 09.07.2024 on the
ground that, the victim is receiving numerous calls from unknown
persons trying to persuade her not to report the said incident and not
to file any complaint to the police. The learned counsel further submits
AB No. 19 of 2024 Page 3
that it would be pertinent to mention that the mobile/phone number of
the alleged anonymous caller was not mentioned or reflected in the bail
objection report submitted by the I.O of the case on which ground the
Ad-interim order was cancelled.
[5] On 17.07.2024, the learned counsel for the
petitioner/accused filed an Additional Affidavit submitting his medical
documents and other relevant documents.
[6] On 24.07.2024, the learned PP appearing for the State
respondent submits objection affidavit by denying all the allegation
made the accused/petitioner and presenting the prosecution story
which is as follows - On 03.06.2024 at 5:30 pm, the complainant
namely, Z. Nganingkhul, aged about 51 years, S/o (L) Z. Theizei of
Kharasom Lazo, Ukhrul District, Manipur (father of the minor victim girl)
lodged a written complaint with the Officer-in-Charge of WPS, Ukhrul,
stating that his minor daughter aged about 15 years was sexually
assaulted by one person namely, Rev. Ariyah R. Zimik aged about 70
years, S/o (L) Khalui R. Zimik of Chingjaroi Ngachaphung, who is the
church pastor of Kharasom Lazo Church on 08.05.2024 at around 12:00
noon at the residence of one Joile Luithui of Langdang Village located
at Khaivarentang, Hungpung, Ukhrul District by locking the bedroom
door. It is also presented as the prosecution case that the
petitioner/accused then pushed down the minor victim girl on the bed
and unexpectedly took out a condom saying that nothing will happen
AB No. 19 of 2024 Page 4
and tried to rape her on the pretext of praying together. However, the
minor victim girl managed to escape and later the incident was
narrated by the victim girl to her father. Bail objection report of the I.O.
of the case also states that during the course of investigation, the
statement of the complainant was recorded under Section 161 Cr.P.C.
and his statement corroborated with the contents of the OE. Further,
the minor victim girl was also examined and during her examination,
she stated that the present accused/petitioner contacted her through
phone and told that he would come to her place (rented house) at
Khaivaren Hungpung for praying together. As such, the minor victim
girl went out from her house and picked up the accused/petitioner
picked from Hamleikhong area and upon reaching the place at the
rented room at Khaivaren Hungpung, the accused/petitioner gave Rs.
200 to the victim girl and forcefully tried to put the money inside her
pocket. The victim girl felt uncomfortable about the behaviour of the
accused/petitioner and later kept the money on the table which was
near a bed. The accused/petitioner then pushed down the minor victim
girl on the bed and tried to rape her by taking out a condom (pink in
colour) from the inside pocket of his coat saying that "Nothing will
harm you if I wear this and will give you more money in addition to
the referred amount.". However, the victim girl managed to escape
from him and ran out of the room and later she drove away the
accused from her house. After some hours later, the accused/petitioner
called her up through mobile phone, but she didn't pick up the call.
AB No. 19 of 2024 Page 5
Later, the accused/petitioner sent a message to the victim girl through
Whatsapp stating "You did not pick my call, Are you upset? I
appreciated, I was just testing, don't reveal to anyone, if you do so,
the lost will be yours, I appreciated you, loved you very much, lets
meet again, tell me anything you need, will provide you." Later, the
accused/petitioner sent another message stating "Are you angry?
Loving you so much, can't forget you, will meet again pretty girl."
After the incident, the minor victim girl receive d many unknown calls
trying to persuade her, not to reveal the facts of the crime or not to file
any complaint and to come to a compromise so as to save the prestige
of the accused/petitioner, being working as a Pastor. She later narrated
the incident to her parents and hence the case.
Necessary medical examinations of the minor victim girl were
conducted at the Department of Forensic Medicine and Toxicology,
RIMS Imphal, and other formalities have been completed. As per the
medicolegal examination report, the concerned doctor opined that
"There are no signs of use of force; however, final report is reserved
pending availability of FSL reports. Sexual violence cannot be ruled
out."
[7] The Ld. PP further submits that the report of the I.O
reveals that the petitioner/accused appeared before her and gave his
statement, wherein he denied the commission of the alleged offence,
however, he had admitted to the Whatsapp messages he had sent to
AB No. 19 of 2024 Page 6
the minor victim girl aftermath the occurrence of the incident, wherein
he apologized for the act he had committed. Further, it is submitted
that the accused did not fully cooperate with the investigation of the
case and gave his statement to the least satisfaction of the I.O. During
the course of interrogation, the I.O seized 1 (one) ASUS Mobile phone
being ASUS X008DA, bearing IMEI Nos. 355917081770782 and
355917081770790 with one Airtel Sim Card no. 8974336536 from the
accused/petitioner upon his production, in presence of witnesses. The
Id. PP, thus submitted that there is prima facie case against the
present accused/petitioner of trying to commit penetrative sexual
assault against the minor victim girl, punishable under Section 8 of the
POCSO Act, 2012 and therefore prayed for rejecting the anticipatory
bail of the accused/petitioner and also submitted that the victim has
been receiving numerous calls from unknown persons trying to
persuade her not to report the said incident and not to file any
complaint to the police. Such acts amount to intimidating the minor
victim girl and trying to influence her.
[8] The learned PP further submits that the report of the I.O
of the case states that during the course of investigation, the I.O of the
case submitted a bail objection report before the Special Judge,
(POCSO), Ukhrul and the concerned Court on 09.07.2024 after hearing
both the parties vacated the ad-interim anticipatory bail order dated
10.06.2024. Upon receiving the order from the concerned court,
Women Police Party led by OC/WPS/UKL along with a team of Reserve
AB No. 19 of 2024 Page 7
Police, Ukhrul tried to arrest the petitioner/accused however they could
not arrest the accused/petitioner since he had already evaded from his
native place.
[9] The learned PP further submits that it is a matter of
concerned since the accused/petitioner was granted Anticipatory Bail
and he is roaming freely and gave constant fear of psychosis in the
mind of the minor victim girl and moreover, there is high possibility that
the accused/petitioner may further intimidate the minor victim or in
another way to settle the matter outside the court.
[10] Again on 29.07.2024, the learned counsel for the
petitioner filed his rejoinder affidavit in reply to the counter affidavit
filed by the State respondent by denying all the allegations made
therein. And further, according to him, the complainant party
(respondent herein) invited the applicant (accused/petitioner) family to
settle the matter as per customary laws, however, the
accused/petitioner had flatly refused to do so as the complainant party
has demanded Rs. 50,000/- only to pay to the Victim family. According,
to the accused/petitioner he has not committed any offence.
In support of his case, the learned counsel for the
petitioner relied upon the following judgment;
1. Criminal Misc. Anticipatory Bail Application U/s 438
Cr.P.C No. 1135 of 2024 - Krishna vs State of UP & 3
Ors - [High Court of Judicature at Allahabad]
AB No. 19 of 2024 Page 8
"13. Moreover, it is no doubt true that the provision of
pre-arrest bail enshrined in Section 438 of Cr.P. C. is
conceptualised under Article 21 of the Constitution of
India, which relates to personal liberty The law
presumes an accused to be innocent till his guilt is
proven. As a presumably innocent person, he is entitled
to all the fundamental rights, including the right to
liberty guaranteed under Article 21 of the Constitution
of India. In Sushila Aggarwal v State (NCT of Delhi) and
Another (AIR 2020 SC 831), the Apex Court held that
the provision for pe-arrest bail was specifically enacted
as a measure of protection against arbitrary arrests and
humiliation by the police, which Parliament itself
recognised as a widespread malaise on the part of the
police and inasmuch as the denial of bail would amount
to deprivation of personal liberty, the court should lean
against the imposition of unnecessary restrictions on
the scope of Section 438 Cr.P.C. in Bhadresh Bipinbhai
Sheth v. State of Gujarat (AIR 2015 SC 3090), the Apex
Court held that the provision of pre-arrest bail
enshrined in Section 438 of Cr.PC calls for liberal
interpretation in the light of Article 21 of the
Constitution of India In Hema Mishra v State of Uttar
Pradesh and Others [(2014) 4 SCC 453], the Apex Court
emphasised the mandate of a constitutional court to
protect the liberty of a person from being put in
jeopardy on account of baseless charges it was held
that a writ court is even empowered to grant pre-arrest
bail despite a statutory bar imposed against the grant
of such relief."
2. Special Leave to Appeal (Crl.) No. 11758/2022 -
Prawin Kumar @ Praveen Kumar vs State of Bihar -
[Supreme Court of India]
"This Court while directing notice to the respondent on
16.12.2022 had taken into consideration all aspects of
the matter and had granted interim protection against
arrest of the petitioner. Though at this stage, it is
submitted that investigation is not complete and the
charge sheet is yet to be filed, there is no complaint
against the petitioner that he has not participated in the
investigation, therefore, as and when called to do so.
If that be the position, there is no reason for us to alter
the order granting interim protection by us. Hence, the
interim protection granted on 16.12.2022 shall enure to
the benefit of the petitioner till the completion of the
process, subject to the petitioner diligently participating
in the further investigation and process thereafter, if
any.
AB No. 19 of 2024 Page 9
The Special Leave Petition is, accordingly, disposed of.
Pending application(s) shall also stand disposed of."
3. Bail Application No. 2418/2016 - Umesh Kumar vs
State (NCT of Delhi) - [High Court of Delhi]
"8. After careful scrutiny of the case and the facts and
circumstances of the present case, this Court observes
that the petitioner has joined the investigation and
there is no averment made on behalf of the State that
the petitioner is required for custodial interrogation or
that the petitioner has tried to tamper with the
evidence".
[11] For the convenient sake, the operative portion of sections
438 and 482 of the Cr.P.C are extracted herein below:-
Section 438 of Cr.P.C reads as follows;
"438. Direction for grant of bail to person
apprehending arrest.-
(1) Where any person has reason to believe that he
may be arrested on accusation of having committed a
non-bailable offence, he may apply to the High Court or
the Court of Session for a direction under this section
that in the event of such arrest he shall be released on
bail; and that Court may, after taking into
consideration, inter alia, the following factors, namely:-
(i) the nature and gravity of the accusation:
(ii) the antecedents of the applicant
including the fact as to whether he has
previously undergone imprisonment on
conviction by a Court in respect of any
cognizable offence;
(iii) the possibility of the applicant to flee
from justice; and
(iv) where the accusation has been made
with the object of injuring or humiliating
the applicant by having him so arrested,
either reject the application forthwith or issue an
interim order for the grant of anticipatory bail:
...............
(2) When the High Court or the Court of Session
makes a direction under sub-section (1), it may include
such conditions in such directions in the light of the
facts of the particular case, as it may thinks fit,
including-
AB No. 19 of 2024 Page 10
(i) a condition that the person shall make
himself available for interrogation by a
police officer as and when required;
(ii) a condition that the person shall not,
directly or indirectly, make any
inducement, threat or promise to any
person acquainted with the facts of the
case so as to dissuade him from
disclosing such facts to the Court or to
any police officer;
(iii) a condition that the person shall not leave
India without the previous permission of
the Court;
(v) such other condition as may be imposed
under sub-section (3) of section 437, as if
the bail were granted under that section.
Section 482 of Cr.P.C reads as follows;
"482. Saving of inherent power of High Court.-
Nothing in this Code shall be deemed to limit or affect
the inherent powers of the High Court to make such
orders as many be necessary to give effect to any order
this Code, or to prevent abuse of the process of any
Court or otherwise to secure the ends of justice."
[12] From perusal of the Section 438 Cr.P.C extracted above, it
is clear that the instant case comes under 438(1)(i)&(iii), in that the
Court while granting an accused under this section needs to consider
the nature and gravity of the accusation made against the applicant,
whether there is the possibility of the applicant to flee from justice. In
the instant case, it is seen and observed that the allegation made
against the accused/petitioner is a serious one and the gravity of the
offence is of heinous nature, the Ld. Special Judge, POCSO, Ukhrul
rightly rejected the bail application of the accused.
[13] In the instant case, the modesty of a 15 years old girl is
involved and the case is in its initial stage needs to be investigated
thoroughly the gravity of the allegation made against the present
AB No. 19 of 2024 Page 11
petitioner/accused is very serious and if the accused is released on bail
there is possibility of the applicant to flee from justice.
[14] The inherent power given to the High Court is deemed to
be unlimited if it is necessary to give effect to or to prevent abuse of
the process of any Court to secure the ends of justice but at the same
time it is mandatory to observe that;
(i) While exercising jurisdiction under section 482, the
High Court would not ordinarily embarked upon an
enquiry whether the evidence in question is reliable
or not or whether on the reasonable apprehension
of it accusation would not be sustained;
(ii) Ends of justice would be better served if valuable
time of the Court is spend in hearing those appeals
rather than entertaining petition under section 482
at an interlocutory stage which after filed with
some oblique motive in order to succumbent the
prescribed procedure, or to delay the trial which
enable to win over the witness or may
disinterested in giving evidence, ultimately
resulting in miscarriage of justice,
(iii) Inherent jurisdiction under section 482 has to be
exercised sparingly, carefully and with caution and
only when such exercised is justified by the tests
specifically laid down in the section itself,
(iv) It is well settled that the inherent power under
section 482 can be exercised only when no remedy
is available to the litigant and not where a specific
remedy is provided by the statute.
AB No. 19 of 2024 Page 12
[15] After due consideration of the foregoing, the powers and
the restrictions for exercising Section 482 Cr.P.C. by the High Court, it
is observed that in the instant case, considering the gravity of the
offences involved, this Court is of the view that Section 482 should not
be exercised.
[16] Further, on perusal of the pleadings of the parties, it is
admitted position of fact that the present petitioner/accused sent
messages to the minor victim girl and the same are extracted herein
below:
"You did not pick my call, Are you upset? I appreciated,
I was just testing, don't reveal to anyone, if you do so,
the lost will be yours, I appreciated you, loved you very
much, lets meet again, tell me anything you need, will
provide you."
"Are you angry? Loving you so much, can't forget you,
will meet again pretty girl."
[17] Considering the above messages, a prudent man will
never send such messages in an ordinary way as such a prima facie
case against the petitioner/accused is evident without doubt.
[18] In the objection affidavit, it is stated that the
petitioner/accused approached the Ld. Special Judge (POCSO), Ukhrul
for interim bail, the Ld. Special Judge (POCSO), Ukhrul granted interim
bail at the initial stage but after the submission of bail objection report
and after hearing both parties the Ld. Special Judge (POCSO), Ukhrul
AB No. 19 of 2024 Page 13
cancelled the interim bail. The Women Police Party led by OC/WPS/UKL
along with a team of Reserve Police, Ukhrul tried to arrest the
petitioner/accused however they could not arrest the
accused/petitioner since he had already fled from his native place. This
clearly shows that the petitioner/accused intention to evade the police
arrest.
[19] After due consideration of the above facts and
circumstances of the case and the discussion made above, there is no
room for interfering of the impugned order of the Ld. Special Judge
(POCSO), Ukhrul.
[20] Accordingly, the present anticipatory bail application is
dismissed as devoid of merit.
[21] Send an extract copy of this order to the Court of learned
Special Judge (POCSO), Ukhrul.
JUDGE
FR/NFR
Bipin/Lucy
AB No. 19 of 2024 Page 14
