Megh HC | Grant of bail entirely within the discretion of Judge; Bail denied, directions issued to provide online facilities for gang rape accused to attend classes

Meghalaya High Court: W. Diengdoh, J., dismissed an application filed by the Petitioner with a prayer for grant of bail on behalf of Habibul Islam who is one of the accused in Special (POCSO) case, pending in the court of the Special Judge(POCSO).

Petitioner narrated that on 21-08-2020, an FIR was lodged by the informant stating that on 20-08-2020 at about 5.30 pm, when he came home, he 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. The Informant then took her to the Phulbari Police Station and then to the Phulbari PHC from where she was referred to the Maternity and Child hospital, Tura for admission.

Mr S.A. Sheikh, Counsel for the Petitioner had submitted that the said FIR was lodged only as a counter blast to the fact that admittedly, there was 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 were evidence of exchange of message through whatapps/Instagram Messenger and Facebook between the two, which messages were deleted by the victim after the said incident. He further submitted that preliminary Charge Sheet was filed in the case and the deposition of the victim was recorded by the Trial Court on 09-04-2021, the next date fixed being 23-05-2021 when the case was not taken up due to the prevailing situation and thus further custody of the accused will not serve any purpose. Furthermore, it was submitted that the accused is innocent of any offence as alleged since the medical report of the victim had shown that there was no sign of sexual assault, the fact that the accused was a college student who was 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.

Mr H.Kharmih, the G.A. appearing on behalf of the State submitted that the question of 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 herein.

The Court reiterated another portion of the Supreme Court judgment of Dataram Singh v. State of U.P., (2018) 3 SCC 22 which was relied on by the Counsel of the petitioner. The Supreme Court had said,

“6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to the incapable of compliance, thereby making the grant of bail illusory”

The Court held that in the present case centers upon an accusation of not only rape simpliciter, but gang rape, that is, a case of sexual assault by more than one person and thus the Court would view the matter seriously with circumspective.

The Court while dismissing the application held that it would not be wise to release the accused on bail at this stage. The Court further directed the jail authorities to provide all the necessary facilities even by allowing the accused/UTP to attend his classes via Online mode.[Abdul Kalam SK v. State of Meghalaya,  2021 SCC OnLine Megh 133, decided on 28-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

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