meghalaya high court

Meghalaya High Court: In an application for seeking bail for offences under Section 5 (k)(l)(n) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), W. Diengdoh, J. granted bail to the accused after considering the delay in trial, hence granting the accused an opportunity to defend his case to the fullest at this point of time.

In the matter at hand, the accused was charged for the offence under Section 5(k)(l)(n) of the POCSO Act. The prosecution’s case was that the accused had committed sexual assault upon the 13 years old minor. The minor’s statement under Section 164 of the Code of Criminal Procedure, 1973 (‘CrPC’) clearly implicated the accused. The bail was sought on the grounds that the trial was moved before the Trial Court, but no charges were framed and there was no examination of the witnesses, and the accused has been in custody for 1 year and 2 months. The accused person’s case was that such a delay is contrary to the provision of Section 35 of the POCSO Act, and it has prejudiced the rights of the accused to speedy trial.

The Court noted that charge sheet was filed. The Court said that it is not sufficient that there has been a delay and Section 35 of the POCSO Act can be invoked, the Court would consider the granting bail on account of all the relevant factors, as stressed by Supreme Court in catena of Judgments. The Court also added that while considering a bail application, the Court must look into the gravity and nature of the offence alleged, the extent of punishment, if convicted and the fact that the accused, if enlarged on bail, may abscond or tamper with the evidence and witnesses.

Further, the Court considered the principle of bail and not jail, for which the Court would look into whether the accused would abscond or that he may not take part in the proceedings. On perusal of Section 35 of the POCSO Act, which specifies that a Special Court taking cognizance of the offence under the POCSO Act, has firstly to record the evidence of the child within a period of 30 days, and it is also incumbent upon the Special Court to complete the trial as early as possible within a period of 1 year from the date of taking cognizance of the offence, the Court said that considering the time period of the case, the provision has not been complied with in a strict sense.

The Court relied on Sanjay Chandra v. CBI, (2012) 1 SCC 40, wherein it was observed 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.”

Therefore, the Court opined that accused should be given the opportunity to defend his case to the fullest at this point of time and for that a congenial atmosphere is required. Thus, the Court released the accused person on bail. The Court imposed the following conditions on bail:

  1. That he shall not abscond or tamper with the evidence and witnesses;

  2. shall not leave the jurisdiction of the State of Meghalaya without prior permission of the Court;

  3. shall not come in contact with the survivor or any of the witnesses during the pendency of the trial. Failure to do so, would entitle the prosecution to take necessary steps for cancellation of the bail;

  4. shall bind himself on a personal bond of ₹ 50,000/- only with one surety of like amount to the satisfaction of the Trial Court.

[Edwos Syngkli v. State of Meghalaya, Bail Application No. 36 of 2023, Decided on 06-11-2023]

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