Mahalom Hoque @ Mahalom Sheikh vs . State Of Meghalaya & Anr.
2022 Latest Caselaw 600 Meg

      Serial No. 01
      Regular List

                        HIGH COURT OF MEGHALAYA
                              AT SHILLONG

AB. No. 20 of 2022
                                                Date of Decision: 19.10.2022
Mahalom Hoque @ Mahalom Sheikh              Vs. State of Meghalaya & Anr.
Coram:
               Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Petitioner/Appellant(s)    :       Md. I. Hussain, Adv.
For the Respondent(s)              :       Mr. B. Bhattacharjee, AAG. with

Ms. R. Colney, GA

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. Heard Md. I. Hussain, learned counsel for the petitioner who has

submitted that this application under Section 438 Cr.P.C. has been filed

before this Court with a prayer for grant of pre-arrest bail to the petitioner.

2. Before hearing the parties, this Court has called for the relevant

case record and on perusal of the same, it is seen that an FIR was lodged

before the Officer-in-Charge, Wage Asi OGC, North Garo Hills by the

father of the alleged victim girl who is said to be a minor of 15 years of

age informing the police that one person from Assam named Sahinur Ali

of Village Simlabari P.S. Lakhipur had eloped with his minor daughter on

23.12.2022 and all efforts to trace his daughter proved futile. Hence, the

FIR.

3. The police on receipt of the said FIR had accordingly registered

a case being Women P.S. Case No. 03 (01) of 2021 under Section 366 (A)

IPC and investigation was launched.

4. In course of investigation, the police came to know that the

minor daughter of the informant and the accused are having a love affair

and that the said minor girl was staying with the family of the said accused.

Accordingly, the police team went to the house of the accused at Simlabari

and rescued the minor girl from the house of the accused where she was

brought back to her parent's house.

5. The I/O has also made repeated attempt to arrest the accused

confirmed as the petitioner herein, but every attempt to apprehend him

failed. Eventually, the accused/petitioner was declared an absconder and

a lookout notice was issued against him.

6. In the meantime, the I/O had recorded the statement of the

alleged victim as well as other witnesses and on the conclusion of

investigation, prima facie evidence have been found well established

against the absconding accused/petitioner under Section 366 (A)/344/376

(3) IPC read with Section 3 (A)/4 POCSO Act.

7. The learned counsel for the petitioner has submitted that the

petitioner has no knowledge of the case against him and it was only when

the police came a number of times to his house to search for him was he

made aware of the said case. Accordingly, on 01.06.2022 the petitioner

had applied for certified copies of the relevant documents from the Court

of the learned Special Judge (POCSO), Resubelpara and on receipt of the

said certified copies on 21.06.2022 he was confirmed of the proceedings

against him.

8. The learned counsel has further submitted that the allegation

made in the FIR is factually incorrect since the alleged victim girl was in

love with him and out of this relationship, they have decided to get married

and to stay together as husband and wife, therefore to say that he has

kidnapped or abducted the alleged victim girl is not correct.

9. As regard the age of the alleged victim, the petitioner has

submitted that the girl has informed him that she was 22 years old at the

time of their relationship with her date of birth being 21.03.1998 as seen

from the certificate issued by the Secretary, Upper Jambal Amganwadi

Centre Gairong, North Garo Hills (Annexure-2 to the application).

10. Since the petitioner has been implicated in the case which is now

registered as Special POCSO Case No. 5 of 2022 under Section 376 (B)

IPC read with Section 3 (A)/4 POCSO Act, for which Non Bailable

Warrant of Arrest was issued against him, therefore being highly

apprehensive of imminent arrest, the petitioner has accordingly

approached this Court.

11. The learned counsel for the petitioner has submitted that the

petitioner ought to be allowed to present his defence in an atmosphere free

from apprehension and the shackles of custodial detention. In this regard,

the case of Sanjay Chandra v. Central Bureau of Investigation: (2012)

1 SCC 40, para 21 & 22 was referred to in support of his case.

"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.

22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances."

12. The learned counsel has also submitted that even after the charge

sheet have been filed, this Court is not prevented from allowing the

accused/petitioner to go on pre-arrest bail. The case of Bharat Chaudhary

& Anr. v. State of Bihar & Anr: (2003) 8 SCC 77 was cited to bring home

this point.

13. The learned counsel has again submitted that if released on bail,

the petitioner would fully cooperate with the process and will abide by any

condition imposed by this Court.

14. Mr. B. Bhattacharjee, learned AAG has strongly opposed the

prayer of the petitioner on behalf of the State respondent by submitting

that the conduct of the petitioner does not deserve any leniency by this

Court. From the records, it is seen that the petitioner has evaded

questioning by the police on several occasions and eventually, he was

declared an absconder by the Court, for which a NBWA was issued

against him.

15. The contention of the petitioner that he came to know of the case

against him only recently for which he has sought the necessary

information by way of application for certified copy from the concerned

court cannot be accepted, submits the learned AAG as from the papers on

record, it is seen that he has applied for certified copies on 01.06.2022 and

had received the same on 21.06.2022, but has approached this Court only

on 29.09.2022. Therefore, the conduct of the petitioner speaks much about

his attitude towards the case against him and as such, for a delayed

approach to Court, the petitioner's prayer cannot be accepted.

16. The learned AAG has maintained that the conduct of the

petitioner particularly the fact that he has been declared an absconder, he

is therefore not entitled to any relief by this Court, even for grant of pre-

arrest bail.

17. In support of his contention, the learned AAG has referred to the

case of Prem Shankar Prasad v. State of Bihar & Anr: 2021 SCC Online

SC 955, para 18, 19, 20, the case of Vipan Kumar Dhir v. State of Punjab

& Anr: 2021 SCC Online SC 854, para 13 & 14 and also the case of Shri.

Akramuz Zaman v. State of Meghalaya & 2 Ors: AB. No. 12 of 2021,

order dated 21.10.2021 of this Court, para 22 to submit that in the

decisions cited above, the Hon'ble Supreme Court as well as this Court

has clearly held that in case of an absconder, he is not entitled to relief of

pre-arrest bail. It is prayed that this application may be dismissed as

devoid of merits.

18. Due consideration has been given to the submission of the

parties, the facts as stated above requires no repetition, suffice it to say

that the issue involved is the prayer for grant of pre-arrest bail by the

petitioner/accused.

19. This Court at this stage is not required to go deep into the

evidence and materials on record since the charge sheet has already been

filed and the case having been taken up by the competent court, the only

issue to be decided is whether under the facts and circumstances, the

petitioner/accused is entitled to grant of pre-arrest bail.

20. It cannot be said that the petitioner is totally ignorant of the

proceedings against him even at the stage of investigation, since he has

averred that the local police authorities have visited his house in search of

him on several occasions. It is only when he was declared an absconder

and NBWA was issued against him that he woke up from his stupor.

21. The case cited by the learned AAG has relevance since the

Hon'ble Supreme Court has made observations on grant or refusal of pre-

arrest bail vis-à-vis an absconder. In the case of Prem Shankar

Prasad(supra), the Apex Court has held that normally when the accused is

'absconding' and declared as a 'proclaim offender', there is no question

of granting anticipatory bail. The other decisions cited by the learned AAG

also speaks on the same lines.

22. In view of the above, this Court finds that the petitioner/accused

has not been able to make out a case for grant of pre-arrest bail, the same

is hereby rejected.

23. Registry to send back the case record.

24. Application disposed of. No costs.

Judge

Meghalaya 19.10.2022 "D. Nary, PS"