High Court of Meghalaya

Moon Ali vs . State Of Meghalaya & Anr. on 18 October, 2022

      Serial No. 02
      Regular List

                        HIGH COURT OF MEGHALAYA
                              AT SHILLONG

AB No. 16 of 2022
                                                 Date of Decision: 18.10.2022
Moon Ali                          Vs.              State of Meghalaya & Anr.
Coram:
               Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)     :       Mr. S. A. Sheikh, 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. An FIR was lodged by the respondent No. 2 before the Officer

In-Charge, Mahendraganj Police Station on 09.06.2022 by Shri. Ripon

Sarkar with a report that his sister aged about 17 years was found missing

and is suspected to be having a relationship with the petitioner herein and

they are suspected to be staying at Pubergaon I, South Salmara

Mankachar, Assam.

2. On receipt of the said FIR, the police registered Ampati Women

P.S. Case No. 6(6) of 2022 under Section 366A IPC read with Section

5(l)/6 POCSO Act.

3. The petitioner who is the main accused in the said FIR has

moved an application for grant of pre-arrest bail before the learned Special

Judge, POCSO, South West Garo Hills District, Ampati which was

rejected vide order dated 26.07.2022.

4. In due course, the petitioner has then approached this Court with

this instant application under Section 438 Cr.PC for grant of pre-arrest bail

in the said Ampati Women P.S. Case No. 6(6) of 2022.

5. Heard Mr. S. A. Sheikh, learned counsel for the petitioner who

has submitted that the petitioner has been implicated in the said Ampati

Women P.S. Case No. 6(6) of 2022 and as such, apprehending arrest has

approached this Court with this application.

6. It is submitted that there is no question of kidnapping or sexual

assault perpetrated against the alleged minor victim girl as the relationship

between the petitioner and the girl is a love relationship and for which the

parties have decided to get married and on 10.06.2022 as agreed, the

petitioner went to the residence of the girl and together they left for

Phulbari and from there, went on by boat to Dhubri. Only when they saw

some policemen and were frightened that the petitioner, on 14.06.2022

accompanied the girl till Mankachar PS where she was brought by the

police to Ampati.

7. The learned counsel has further submitted that the girl is more

than 17 years but less than 18 years and as such her decision to go with

the petitioner and to cohabit with him on the understanding that they will

soon get married, is a well thought out decision and there being no actual

violence committed or sexual assault perpetrated by the petitioner,

therefore the petitioner cannot be implicated in the said case. However,

since it is reliably learned that the police are looking for the petitioner, as

such, he has approached this Court with this instant application with a

prayer for grant of pre-arrest bail.

8. The learned counsel for the petitioner has also submitted that in

the order of the learned Special Judge, POCSO, SWGH, Ampati it has

been noticed that the statement of the alleged victim was recorded under

Section 161 and Section 164 Cr.PC in which she has clearly stated that

she is in a love relationship with the petitioner and that they plan to get

married and therefore, the sexual relationship was consensual.

9. In view of such circumstances, it is prayed that the petitioner

may be allowed pre-arrest bail and in the event of his arrest, he may be

released on bail on any terms and conditions as deemed fit to be imposed

by the Court.

10. Mr. H. Kharmih, learned Addl. PP has submitted that the copy

of the case diary as directed is duly produced today and the same may be

perused by this Court.

11. Mr. Kharmih has also submitted that from the records it is

clearly seen and not denied by the petitioner or the victim girl that they

had physical sexual relationship which is clearly an illegal action

inasmuch as sexual relationship with a minor cannot be condoned under

the POCSO Act and as such, at this juncture the petitioner may not be

allowed to go on pre-arrest bail.

12. Upon hearing the parties, this Court on the basis of the

averments made in this application and on perusal of the case diary

produced today has observed that the petitioner and the alleged victim girl

are in a love relationship and they have also vowed to get married when

the girl come of age. This is evident from the statement of the girl under

Section 161 and Section 164 Cr.PC.

13. The contention of the prosecution that since the girl is a minor

her consent as regard sexual intercourse or relationship cannot be accepted

as legal consent and therefore, the petitioner, by his own admission has

committed the offence alleged and the same being serious in nature, at this

point of time his prayer for pre-arrest bail may not be allowed.

14. This Court has given due consideration to the submission and

contention of the rival parties and has also perused the application as well

as the case diary.

15. The provision of Section 438 (1) Cr.PC reads as follows:

"438 (1). 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:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application."

16. The heading of the provision itself speaks of direction for grant

of bail to person apprehending arrest. Such prayer may be allowed by the

court after taking into consideration the factors indicated therein.

17. As far as the case involving the petitioner is concerned, since he

is already a named accused, not having been arrested, the apprehension of

arrest is realistic.

18. As could be understood from the submission of the parties as

well as from the materials found in the case diary, the fact that the alleged

victim girl has clearly stated that she is in a love relationship with the

petitioner, the direction of the trial will depend on the evidence adduced.

However, as far as the prayer for bail is concerned, this Court is of the

opinion that if enlarged on bail, there is no likelihood of the

accused/petitioner intimidating or threatening the alleged victim girl or

witnesses.

19. On an overall consideration of the matter, this Court agrees that

there is an apprehension of arrest for which the petitioner is liable to be

protected by virtue of a court's order.

20. Accordingly, this application is allowed. In the event of his

arrest, the petitioner/accused is directed to be released on bail on the

following conditions, provided he is not wanted in any other case:

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 to leave the jurisdiction of India without

prior permission of the court; and

iv. That he shall furnished a personal bond of ₹ 30,000/-