The Meghalaya high court recently comprising of a bench of Justice W. Diengdoh dealing with an issue of whether to grant bail to the Petitioner in the present case or not remarked that granting of bail is entirely within the discretion of the Judge hearing the matter. (Shri Abdul Kalam SK v. State of Meghalaya)
The bench observed that the application of discretion has to be judicious in nature and as such, facts and circumstances of each case have to be taken into account. It is a foregone conclusion that one of the main and basic considerations for grant of bail is the nature and gravity of the alleged offence depending on the particular facts and circumstances of the case.
Facts of the case
The father of the victim saw his minor daughter, aged about 16 years 8 months profusely bleeding and on enquiry, he was informed that she was abducted and gang-raped by three persons, viz; Habibul Islam@ Habbul, Mokabbir Hussain and Israful Hoque who had abducted her while she was on her way to tuition class by gagging her mouth and blindfolding her after which she was taken to the house of Habibul Islam where she was raped by them. She was later found by one Smti Anisa Khatun who brought her home. The informant took her to the police station and she was referred to the maternity and child hospital for admission.
During the investigation, one of the accused voluntarily submitted himself to the police custody on 27.08.2020 and was duly arrested and was produced before the court of the Special Judge. A series of bail applications were filed before the court and all were rejected.
In the present case, the Petitioner, Shri Abdul kalam SK filed an application under section 439 Cr.P.C for grant of bail on behalf of Shri Habibul Islam who is one of the accused in Special (POCSO) Case pending in the court of the learned Special Judge(POCSO), West Garo Hills, Tura.
Contention of the Parties
The Petitioner has submitted that the said FIR was lodged only as a counterblast to the fact that admittedly, there is a love affair between the alleged victim and the accused person herein, but for the fact that she is still a minor, being about 17 years of age. However, there is evidence of exchange of messages through what apps/Instagram Messenger and Facebook between the two, which messages were deleted by the victim after the said incident. Also, it was submitted that the victim wanted to elope with the accused and this fact was also known to the people of the locality.
Also, the village Panchayat held a meeting in the house of the Petitioner for the performance of marriage between the two, but since the victim is only 17 years old, the consent of the parents of the victim was sought for but they did not attend the said meeting and the members of the Panchayat took back the victim to her house after which the said FIR was lodged.
It was submitted that further custody of the accused will not serve any purpose, he is therefore entitled to be enlarged on bail. Furthermore, it was submitted that the accused is innocent of any offence as alleged since the medical report of the victim has shown that there was no sign of sexual assault, the fact that the accused is a college student who is pursuing his final year B.A. from South Salmara, College under the Gauhati University is also one of the grounds taken for consideration by this Court.
Courts Observation and Judgment
The court held that the question of a love affair between the victim and the accused person cannot be established inasmuch as the victim has given her statement clearly indicating that she was raped by three persons including the accused person. Also, the FIR was lodged to bring to the attention to the police about the alleged abduction and rape of the said minor victim girl is not denied.
The bench referring to the cae of remarked, “ In the above, the Hon 'ble Supreme Court has held that granting of bail is entirely within the discretion of the Judge hearing the matter, this application of discretion has to be judicious in nature and as such, facts and circumstances of each case has to be taken into account. While alluding to the principles of bail which has been crystalized in a catena of judgments that one of the main and basic consideration for grant of bail is the nature and gravity of the alleged offence depending of the particular facts and circumstances of the case. In the case involving the accused Habibul Islam, as mentioned above, it centers upon an accusation of not only rape simpliciter, but gang rape, that is, a case of sexual assault by more than one person. In such a case, this Court would view the matter seriously with circumspective. This being the case, it would not be wise to release the accused on bail at this stage”
The bench dismissing the matter remarked, “The fact that the case is at the evidence stage, it appears that the Learned Special Judge has proceeded with the matter expeditiously and as such, it would be appropriate to allow the Trial court to continue with the sae till a final verdict as regards the accused as well as the other co-accused is arrived at.
Considering the submission of the learned counsel for the petitioner as regard the facts that the accuses Habibul Islam is a student pursuing his studied in BA, this court hereby directs the jail authorities to provide all the necessary facilities even by allowing the accused/UTP to attend his classes via online mode. In view of the above observation, this application does not merit considering and the same is hereby dismissed.”
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