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Granting of bail is entirely within the discretion of the Judge hearing the matter: High Court of Meghalaya

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. A  single-judge bench comprising of Justice W. Diengdoh adjudicating in the matter of Shri Abdul Kalam SK v. State of Meghalaya (BA No.222 of 2021) dealt with an issue of whether to grant bail to the Petitioner in the present case or not.

In the present case, the Petitioner 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.

As per the facts of the case, the Petitioner in his application stated that 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 [email protected] 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.

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 is submitted that further custody of the accused will not serve any purpose, he is therefore entitled to be enlarged on bail. Furthermore, it is 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.

The petitioner relied on the case of “Dataram Singh v. State of Uttar Pradesh & Anr” (2018) 3 SCC 22 “Vijaya Lakshmi and anr. v. State Rep. by The Inspector of Police, All Women Police Station, has submitted that in the case of Dataram Singh, the Hon’ble Supreme Court has reiterated the principles of bail as a general rule and putting a person in a jail as an exception, while in the case of Vijaya Lakshmi, the Hon’ble Madras High Court considering the facts and circumstances of the case therein, taking into account that there was a love relationship between the alleged victim and the accused involved in a POCSO case, the court in an application under section 482 CrPC has allowed the same and has quashed the case pending before the Trial Court.

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 court also said that “ 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 of the Supreme Court as well as High Courts, it is a foregone conclusion 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.”

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