High Court of Meghalaya
Shri. Bhaskar Borah vs . State Of Meghalaya & Anr. on 15 November, 2022
Serial No. 04
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
AB No. 23 of 2022
Date of Decision: 15.11.2022
Shri. Bhaskar Borah Vs. State of Meghalaya & Anr.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. B. Pathak, Adv.
For the Respondent(s) : Mr. H. Kharmih, Addl. PP with
Mr. S. Sengupta, Addl. PP
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER (ORAL)
1. This is an application preferred under Section 438 Cr.P.C with a
prayer for grant of pre-arrest bail in connection with Women P.S. Case
No. 58 (10) of 2022 under Section 365 IPC.
2. Heard Mr. B. Pathak, learned counsel for the petitioner who has
submitted that the petitioner has been accused of an offence under Section
365 IPC on the basis of an FIR lodged by one Shri. Nicholas Ronghang
dated 12.10.2022 wherein the complainant has informed the police that
his daughter aged about 26 years and who is working as a peon in POCSO
Court, Nongpoh, Ri-Bhoi District was abducted from the court premises
on 11.10.2022 by the petitioner herein leading to the registration of the
abovementioned Women P.S. Case No. 58 (10) of 2022.
3. The learned counsel has further submitted that the fact of the
matter is that the petitioner and the woman, are acquainted with each other
and have developed mutual romantic feelings. The woman who is an adult,
on her own free will had accompanied the petitioner to Guwahati on the
date as stated in the FIR and has also informed her father through her
mobile phone about the same. Therefore, there is no question of the
petitioner abducting her for any illegal purpose. The fact remains that the
woman has since returned to her place of residence at Ri-Bhoi district after
the said FIR was lodged, submits the learned counsel.
4. It is also submitted that the petitioner is an advocate by
profession and the fact that the police are looking for him in connection
with the case, if arrested would cause serious prejudice to his reputation
and profession.
5. The petitioner also hails from a respectable family and has no
criminal history but as an advocate he would concentrate on his practice
for which he has appeared in many courts, including the courts in
Meghalaya.
6. It is submitted that if allowed to go on pre-arrest bail the
petitioner will abide by any conditions to be imposed by this Court.
7. Mr. H. Kharmih, learned Addl. PP has submitted that from the
contents of the FIR there is a strong apprehension that the woman has been
enticed by the petitioner to be introduced in the market, most probably in
the flesh trade and as such, this petition may not be allowed at this stage.
8. This Court having considered the submission and contention
made by the parties have at the initial stage called for the case diary to be
produced and at the relevant period since the statement of the woman has
not been recorded under Section 164 Cr.P.C the Investigating Officer
(I/O) was directed to facilitate recording of her statement accordingly.
9. When the matter was heard today, the learned Addl. PP has
submitted that the copy of the case diary is produced before this Court,
including the statement of the woman under Section 164 Cr.P.C.
10. The FIR is basically a complaint that the woman in question was
abducted by the petitioner and therefore an offence under Section 365 IPC
is made out.
11. The I/O has recorded the statement of the woman as well as other
relevant witnesses as part of the investigation process. What is noted is
that in her statement under Section 161 Cr.P.C the woman has stated that
she came to know the petitioner while working in the Nongpoh court as
he is an advocate and used to come to the court from time to time. A
relationship has developed since then and on 11.10.2022 the petitioner met
her opposite the court complex and proposed that she elope with him to
get married. Initially, she refused to which he offered to drop her on his
bike and he also gave her the option whether she wants to go with him or
want to stay with her parents. On reconsideration, the woman then chose
to go with the petitioner and accordingly they proceeded towards
Guwahati.
12. In her statement under Section 164 Cr.P.C made before the
learned Magistrate the woman has stated the same thing as has been stated
by her in her statement under Section 161 Cr.P.C.
13. From the materials on record if the statement of the woman is to
be relied and cannot be denied, prima facie it appears that a case of
kidnapping or abducting with intent to wrongfully confine a person is not
made out in this instant case. Of course, subject to the final report to be
filed by the I/O. However, since the woman has clearly stated that she has
gone with the petitioner to Guwahati on her own free will, therefore no
negative imputation can be attributed to the action of the petitioner.
14. The Hon'ble Supreme Court dealing with a case under Section
363 and 366 IPC on the subject matter of kidnapping and abduction at para
10 of the same being the case of Mafat Lal & Anr. v. State of Rajasthan:
(2022) 6 SCC 589 has observed as follows:
"10. Section 366 IPC would come into play only where there is
a forceful compulsion of marriage, by kidnapping or by
inducing a woman. This offence also would not be made out
once Appellant 2 the abductee has clearly stated that she was
in love with Appellant 1..."
15. The observation made by the Hon'ble Supreme Court would
also be relevant in this case taking into account the statement of the
woman who was alleged to have been abducted by the petitioner.
16. In view of the above, this Court is of the considered opinion that
at this stage the petitioner is entitled to the benefit of the pre-arrest bail.
Accordingly, this petition is allowed. The petitioner, in the event of his
arrest is to be enlarged on bail on the following conditions:
i. That he shall not abscond or tamper with the evidence and
witnesses;
ii. That he shall appear before the Investigating Officer as and
when required;
iii. That he shall not leave the jurisdiction of India without
prior permission of the court; and
iv. That he shall furnished a personal bond of ₹ 30,000/-
(rupees thirty thousand) only with two solvent sureties of
like amount to the satisfaction of the concerned court.
17. The interim bail granted is hereby made absolute.
18. Petition disposed of. No costs.
Judge
Meghalaya
15.11.2022
"Tiprilynti-PS"
