High Court of Meghalaya
Smti. Masbon Syiem vs The State Of Meghalaya on 22 May, 2024
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 05
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
BA. No. 16 of 2024
Date of Decision: 22.05.2024
Smti. Masbon Syiem,
W/o Shri. Kynpham Rynshon
R/o Mawlong Nongtluh Village
Ri-Bhoi District, Meghalaya ::::: PETITIONER
-Vs-
1. The State of Meghalaya
Represented by the Commissioner
& Secretary, Home Department
Government of Meghalaya, Shillong
2. Shri. Kynpham Rynshon
R/o Mawlong Nongtluh Village
Ri-Bhoi District, Meghalaya ::::: RESPONDENTS
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S.M. Suna, Adv.
For the Respondent(s) : Mr. H. Kharmih, Addl. PP.
Mr. S. Sengupta, Addl. PP. for R 1.
None for R 2.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
1
in press: Yes/No
JUDGMENT (ORAL)
1. Heard Mr. S.M. Suna, learned counsel for the petitioner, who
has submitted that the notice issued upon the respondent No. 2 has been
duly affected and affidavit of service has been filed in this regard
annexed with the copy of the notice, wherein is found the signature of
the notice receiver, that is, the respondent No. 2. However, the
respondent No. 2 has failed to appear before this Court when the matter
was called up for hearing. In view of such submission made, this Court
hereby orders that this matter shall proceed ex-parte against the
respondent No. 2.
2. In his submission on the merits of the case, the learned
counsel for the petitioner has narrated the brief facts of the case by
referring to his application and stating that the case emanated from the
filing of the FIR by the respondent No. 2 on 22.07.2021, alleging that the
accused had sexually assaulted a minor girl aged about 9 years old and
for which, action in accordance with law is required to be taken. The FIR
was then taken into account and Ri-Bhoi District Women P.S. Case No.
56 (07) 2021 under Section 5(m)(n)/6 of the POCSO Act, 2012 was
registered. Investigation was accordingly launched and the Investigating
Officer on completion of the investigation, has filed the charge sheet on
07.09.2021 with the observation that a prima facie case under Section
5(m)(n)/6 of the POCSO Act is found well established against the
accused person.
3. In due course, a regular case was registered as Special
POSCO Case No. 18 of 2021 before the Court of the learned Special
Judge (POCSO) at Nongpoh, Ri-Bhoi District and the accused person as
the sole accused was taken up for trial. The court then framed the
relevant charges against the accused person and the stage of the case was
fixed for recording of the prosecution witnesses' evidence. Till date,
about two out of the seven witnesses have been examined and discharged
by the court.
4. The learned counsel has further submitted that it is at this
point of time that this application is now preferred, seeking grant of bail
on behalf of the accused person named, Shri. Counsellar Syiem, the
petitioner being the mother of the said accused person. It is the
contention of the learned counsel that the main ground for preferring this
instant application is on the ground of the delay in trial. Instances have
been cited to say that when the case was taken up for recording of
evidence on 24.06.2022, PW. 1 was examined and on 26.08.2022, PW. 2
was also examined. The learned counsel has also submitted that about
one and a half year or so, no evidence has been recorded and this has in
effect caused delay in the trial.
5. Notwithstanding the fact that the offence alleged are serious
in nature, however, it is the entitlement of the accused person to be
accorded fair treatment as in course of trial he is considered innocent
until proven guilty at the conclusion of the trial. Therefore, the personal
liberty of the accused person as enshrined under Article 21 of the
Constitution of India has been violated. On this ground alone, the
accused person is therefore entitled to be enlarged on bail, submits the
learned counsel.
6. The second factor put forth by the learned counsel for the
petitioner is that the accused person is a patient of a known case of
Suppurative Ottitis Media (CSOM) and Deviation of the Nasal Septum
(DNS) which fact has been brought to the notice of the Trial Court. From
time to time, a prayer has been made for grant of bail to the accused
person, but such fact has been ignored by the Trial Court. It is also the
submission of the learned counsel that since the charge sheet has been
filed and that the trial has commenced, especially the fact that the two
most important witnesses, that is, the survivor and the complainant who
had filed the FIR have been examined and discharged by the learned
Trial Court, therefore, there is no question of tampering with the
evidence and witnesses or even intimidation of the witnesses as far as the
accused person is concerned.
7. The learned counsel has also submitted before this Court that
about nine successive bail applications have been preferred before the
Trial Court, but was rejected on the ground cited in such order passed by
the learned Trial Court. However, it is pertinent to mention herein that
the learned Trial Court has noted one of the reasons for rejection of the
bail is that there is apprehension by the mother and the survivor that in
case the accused person is enlarged on bail he will cause physical harm
to their person. This according to the learned counsel for the petitioner
cannot be contemplated, inasmuch as, the petitioner herein had given an
assurance before the Trial Court that in the event of the accused being
released on bail, he will shift his place of residence to a location which is
about 45 kilometres or so from the residence of the survivor. It is also the
submission of the learned counsel that in the event of his being enlarged
on bail, he will abide by any conditions to be imposed by this Court.
8. In support of his submission, the learned counsel for the
petitioner has cited the following cases, wherein the Hon'ble Supreme
Court has passed various judgments on the issue of bail. The said
judgments are cited herein below:
i) Sanjay Chandra v. Central Bureau of Investigation
reported in (2012) AIR (SC) 830, para 26;
ii) State of Kerala v. Raneef reported in (2011) 1 SCC 784;
iii) Dataram Singh v. State of Uttar Pradesh reported in
(2018) 3 SCC 22;
iv) Prabhakar Tewari v. State of Uttar Pradesh & Anr
reported in (2020) 11 SCC 648.
9. Per Contra, Mr. H. Kharmih, learned Addl. PP appearing for
the State respondent No. 1 has submitted that firstly, the averments made
at para 12 of this application indicating that the accused person is
suffering from the said case of CSOM and DNS, the same could not be
substantiated by documentary proof and as such, the Trial Court has
rightly rejected such prayer made in this regard. Even before this Court,
such documentary proof has not been furnished by the petitioner or the
accused person for that matter to substantiate his claim for grant of bail
on medical ground as far as the allegation of delay in trial is concerned.
10. The learned Addl. PP has candidly admitted that there has
been a delay in the proceedings, however, such delay has been caused
due to unforeseen circumstances and reasons cited in the orders of the
Trial Court, for which the court concerned or the prosecution cannot be
blamed. The learned Addl. PP has also submitted that since bail is a
discretion of the Court in the light of the facts and circumstances of the
case, especially taking into account the nature and gravity of the offence
alleged, and the conduct of the accused at the time of commitment of the
offence has to be taken into account.
11. This Court, on consideration of the submission made, has
perused the application and the annexures thereto and has also noted the
pointed submission of the learned counsel for the petitioner as well as
the learned Addl. PP.
12. At the outset, it may be noted that the accused person was
arrested in connection with the said case on 22.07.2021 and is still in
custody till date which is approximately about 2 years and 10 months. It
is also to be noted that the evidence of the prosecution witnesses seven in
all have not been completed, while only the survivor and the
complainant have been examined and discharged. Though, the
submission of the learned Addl. PP that the delay in trial cannot be
attributed to the conduct of the court or the prosecution, however, the
learned Trial Court is well advised to look into the provision of Section
35 of the POCSO Act which provides that the period for recording of
evidence and disposal of the case preferably should be within 30(thirty)
days and that the trial should be completed within one year from the time
the competent court has taken cognizance of the offence.
13. The submission of the learned counsel for the petitioner on
the ground of delay is found valid and taking into account the fact that
the two main witnesses, that is, the survivor and the complainant have
had their evidence recorded, it may not affect the outcome of the case, if
the accused person is enlarged on bail. As to the submission on the
ground of the required medical attention as far as the accused person is
concerned, the ground cited may not be relevant at this point of time.
14. The authorities cited by the petitioner, that is, the case of
Sanjay Chandra(supra) at para 26 as well as the case of Raneef(supra)
are interconnected, inasmuch as, the latter was referred in the former.
Para 26 of the Sanjay Chandra's case read as follows:
"26. When the under-trial prisoners are detained in
jail custody to an indefinite period, Article 21 of the
Constitution is violated. Every person, detained or
arrested, is entitled to speedy trial, the question is:
whether the same is possible in the present case.
There are seventeen accused persons. Statement of
the witnesses runs to several hundred pages and the
documents on which reliance is placed by the
prosecution, is voluminous. The trial may take
considerable time and it looks to us that the
appellants, who are in jail, have to remain in jail
longer than the period of detention, had they been
convicted. It is not in the interest of justice that
accused should be in jail for an indefinite period. No
doubt, the offence alleged against the appellants is a
serious one in terms of alleged huge loss to the State
exchequer, that, by itself, should not deter us from
enlarging the appellants on bail when there is no
serious contention of the respondent that the accused,
if released on bail, would interfere with the trial or
tamper with evidence. We do not see any good reason
to detain the accused in custody, that too, after the
completion of the investigation and filing of the
charge-sheet. This Court, in the case of State of
Kerala v. Raneef (2011) 1 SCC 784, has stated :-
"15. In deciding bail applications an important
factor which should certainly be taken into
consideration by the court is the delay in concluding
the trial. Often this takes several years, and if the
accused is denied bail but is ultimately acquitted,
who will restore so many years of his life spent in
custody? Is Article 21 of the Constitution, which is
the most basic of all the fundamental rights in our
Constitution, not violated in such a case? Of course
this is not the only factor, but it is certainly one of the
important factors in deciding whether to grant bail.
In the present case the respondent has already spent
66 days in custody (as stated in Para 2 of his counter-
affidavit), and we see no reason why he should be
denied bail. A doctor incarcerated for a long period
may end up like Dr. Manette in Charles Dicken's
novel A Tale of Two Cities, who forgot his profession
and even his name in the Bastille."
15. The case of Prabhakar Tewari(supra) speaks mostly of the
discretionary power of the Court as far as the grant or non-grant of bail is
concerned, vis-à-vis the principles of bail. The said authority cited is
found relevant by this Court as far as this instant case is concerned.
16. In view of the observations made hereinabove, this Court is
of the opinion that the petitioner has made out a case for grant of bail as
far as the accused person in question is concerned.
17. Accordingly, the accused person, Shri. Counsellar Syiem is
hereby directed to be released on bail on the following conditions, that:
i) He shall not abscond or tamper with the evidence and
witnesses;
ii) He shall not leave the jurisdiction of the State of
Meghalaya without due prior permission of the court
concerned;
iii) He shall appear before the Trial Court as and when
required;
iv) He shall personally bind himself on a bond of ₹
50,000/- (Rupees fifty thousand) only with one surety
of like amount to the satisfaction of the Trial Court.
v) On the assurance of the petitioner that the accused will
now reside at 20th Mile, Ri-Bhoi District which is about
45 kilometres from the residence of the survivor, this is
found acceptable by this Court and the accused is
directed to comply with the same.
18. With the above-noted directions, this application is
accordingly disposed of. No costs.
Judge
Meghalaya
22.05.2024
"D. Nary, PS"
