High Court of MeghalayaShri Julius Kitbok Dorphang vs . State Of Meghalaya & Ors. on 27 August, 2020Equivalent citations: AIRONLINE 2020 MEG 50, AIRONLINE 2020 MEG 34Author:W. DiengdohBench:W. DiengdohSerial No. 02\n Regular List\n\n                         HIGH COURT OF MEGHALAYA\n                             AT SHILLONG\nBA. No. 1 of 2019\nWith BA. No. 24 of 2018\n                                                       Date of Order: 27.08.2020\nShri Julius Kitbok Dorphang           Vs.           State of Meghalaya & Ors.\nCoram:\n                 Hon'ble Mr. Justice W. Diengdoh, Judge\n\nAppearance:\nFor the Petitioner                :         Mr. K. Paul, Adv.\nFor the Respondent(s)             :         Mr. N.D.Chullai, AAG withMr. A.H. Kharwanlang, GA.i)     Whether approved for reporting in                      Yes/No\n       Law journals etc.:\n\nii)    Whether approved for publication\n       in press:                                              Yes/No1.     On 23.12.2016, the Chairperson, State Commission for Protection of\nChild Rights, Meghalaya submitted a complaint to the Superintendent of\nPolice, East Khasi Hills District, Shillong to the effect that Shri Julius\nDorphang, the petitioner herein, had illicit sexual intercourse with a minor\ngirl which is a violation of the child's right to life and dignity.2.     Accordingly, the complaint was received as an FIR and Laitumkhrah\nP.S. Case No 239 (12) of 2016 underSection 366 (A)IPC read withSection\n3(a)/4/5of the POCSO Act andSection 5of the ITP Act was registered in\nthis regard.3.     Again, on 05.01.2017, another FIR was filed by the Chairperson, State\nCommission for Protection of Child Rights, Meghalaya, alleging that the\npetitioner herein had committed a similar offence against the same minor\nvictim somewhere within the jurisdiction of Nongpoh, Ri-Bhoi District,1leading to the registration of another criminal case being Umiam P.S. case\nNo 1(01) 2017 underSection 376 (2) (i) (n)IPC read withSection 4/6/17POCSO Act, andSection 5 (I)Immoral Traffic (Prevention) Act, 1956.4.    The petitioner along with some co-accused were arrested and are now\nin judicial custody.5.    It may be mentioned that the two criminal cases involved the same\nvictim and the petitioner herein as the main accused. By relevant order of the\nHigh Court of Meghalaya, the case registered under Laitumkhrah P.S. under\nthe jurisdiction of the Shillong Court was transferred and is now taken up at\nJowai, West Jaintia Hills District, while the other case is taken up at\nNongpoh, Ri-Bhoi District. Both cases are tried by the respective Special\nJudge (POCSO).6.    The petitioner filed two separate bail applications both underSection\n439Cr.P.C before this Court, registered as B.A. Case No 24 of 2018\nrelatable to the Laitumkhrah P.S. Case No 239 (12) of 2016 and another as\nB.A. Case No 1 of 2019 related to the Umiam P.S. Case No. 1(01)2017.\nBoth matters being connected, it is deemed convenient and expedient to take\nup the two together and to pass a common order herein.7.    Heard Mr. K. Paul, learned counsel for the petitioner who has\nsubmitted that the petitioner was arrested in the abovementioned POCSO\ncases and is still in custody for about three and a half years. The status report\ncalled by this Court from the Trial Courts revealed that in the case at\nNongpoh, the evidence of the prosecution is complete, while in the case at\nJowai, no witnesses have been examined so far and considering the\nprevailing situation, there is no likelihood of the trail proceedings in the near\nfuture and the petitioner will continue to linger in jail.8.    Learned counsel for the petitioner has also submitted that the\npetitioner having been in custody for more than three and a half years, there2is no allegation against him that he will evade the process of law. There is\nalso no question that he will hamper the investigation as the charge sheet has\nalready been filed and as submitted earlier, the recording of evidence in the\ncase at Nongpoh has already been completed.In this regard, the case ofSanjay Chandra v. CBI: (2012) 1 SCC 40 at paragraphs 21, 23, 25, 36, 42\n& 43 was cited by the learned counsel for the petitioner to support his\ncontention.9.    The second ground raised by the learned counsel for the petitioner is\nthat the co-accused has been released on bail by this Court and as such, on\nthe principle of parity, the petitioner too may be enlarged on bail. The case\nofDipak Subhashchandra Mehta v. Central Bureau of Investigation &\nAnr: (2012) 4 SCC 134 at paragraph 32 and the case ofNikesh Tarachand\nShah v. Union of India & Anr: (2018) 11 SCC 1 at paragraphs, 19, 24 & 35\nwas cited by the petitioner in this regard.10.   It is finally prayed that this Court be pleased to enlarge the petitioner\non bail with any conditions which will be abided by the petitioner.11.   N.D. Chullai, learned AAG assisted by Mr. A.H. Kharwanlang\nlearned G.A for the State respondent while opposing the submission of the\nlearned counsel for the petitioner has submitted that the State respondent has\nalready filed separate objections to both the bail applications and the same is\nhereby relied upon, particularly the averments at paragraphs 3 and 5, which\nare identical in both the objection petitions. Further, submitting that from the\nmaterials on record, including the statement of the victim, it is seen that\nthere is a prima facie case against the petitioner and that the seriousness and\ngravity of the case is such that bail may not be granted to the petitioner.12.   Another limb of argument advanced by the learned AAG is that this is\na case under thePOCSO ActandSection 29of the said Act will come into\nplay as far as presumption is concerned. The case of State of Bihar v.3Rajballav Prasad: (2017) 2 SCC 178 at paragraphs 22 and 29 was referred\nherein to support the case of the State respondent in this regard.13.   As to the argument of the learned counsel for the petitioner that under\nthe prevailing situation the petitioner's prayer may be considered\nfavourably, Mr. Chullai has submitted that the facts and circumstances of the\ncase against the petitioner does not warrant any such consideration.14.   In reply, Mr. Paul has submitted that despite the arguments raised by\nthe learned AAG as regard the seriousness of the case against the petitioner\nincluding the provision ofSection 29of the POCSO Act on presumption, the\nfact remains that in criminal jurisprudence as recognized in our Country, a\nperson cannot be pronounced guilty until the final process of the trial is\ncompleted.15.   Upon hearing the argument advanced by the learned counsels for the\nrival parties, what can be seen here is that the fact of the petitioner being the\nmain accused in the said case before the learned Special Judge (POCSO) at\nJowai and also in the case before the learned Special Judge (POCSO) at\nNongpoh is in custody till date from the time he was arrested in the year\n2017, i.e. on 13.01.2017 is irrefutable. As to the offence alleged, the relevant\nSections under theIndian Penal Codeas well asSections 3,4,5,6&17of\nthe POCSO Act and Section 5 of the Immoral Trafficking (Prevention) Act,\n1956 have been charged against the accused/petitioner for which trial is\nproceeding.16.   What is understood here is that, the petitioner having been in custody\nfor more than three and a half years and that nothing adverse has been found\nagainst his character and conduct while in custody, he has therefore claimed\nentitlement to be enlarged on bail.17.   Another factor relied upon by the petitioner is that one of the co-4accused has already been enlarged on bail by this Court vide order dated\n06.12.2019 in B.A No. 9 of 2019, therefore, on the principle of parity the\npetitioner is entitled to be released on bail with any conditions to be imposed\nby this Court.18.   It is well settled that consideration of a bail application must stand on\nits own footing inasmuch as, the facts and circumstances of the same has to\nbe taken into account by the Court before rejecting or allowing the\napplication. However, general principles enunciated by the Courts,\nparticularly the Apex Court as far as bail jurisprudence is concerned, can be\nconsidered by the Court as a yardstick towards the culmination of the\nadjudication.19.In the case ofSanjay Chandra(Supra), the relevant paragraphs cited\nby the learned counsel for the petitioner would show that the Hon'ble\nSupreme Court while elaborating on the principles of bail, has observed that\nthe main object of bail is to secure the appearance of the accused person and\nthat should neither be punitive or preventative since deprivation of liberty\nmust be considered a punishment. The Hon'ble Supreme Court has gone on\nto say that the discretionary jurisdiction on criminal Courts to grant bail to\nthe accused pending trial has to be exercised with great care and caution by\nbalancing the valuable right of liberty of an individual and the interest of\nsociety in general. Another area touched is the aspect of delay in the trial\nwhich would violate the fundamental right of the accused who is entitled to\nspeedy trial, the absence of which would prolonged his detention in jail\ncustody.20.In the case ofDipak Subhashchandra Mehta(Supra), at paragraph\n32 the Apex Court has held as follows:"32. The court granting bail should exercise its discretion in a\n             judicious manner and not as a matter of course. Though at the\n             stage of granting bail, a detailed examination of evidence and\n             elaborate documentation of the merits of the case need not be5undertaken, there is a need to indicate in such orders reasons\n             for prima facie concluding why bail was being granted,\n             particularly, where the accused is charged of having committed\n             a serious offence, The court granting bail has to consider,\n             among other circumstances, the factors such as (a) the nature\n             of accusation and severity of punishment in case of conviction\n             and the nature of supporting evidence; (b) reasonable\n             apprehension of tampering with the witness or apprehension of\n             threat to the complainant; and (c) prima facie satisfaction of\n             the court in support of the charge. In addition to the same, the\n             court while considering a petition for grant of bail in a non-\n             bailable offence, apart from the seriousness of the offence,\n             likelihood of the accused fleeing from justice and tampering\n             with the prosecution witnesses, have to be noted."21.In the case ofNikesh Tarachand Shah(supra), the Apex Court while\ndealing with a case where the provision ofSection 45of the Prevention of\nMoney Laundering Act, 2002 is under scrutiny vis-a vis the issue of grant of\nbail, at paragraph 19 of the same has passed observations on the purpose of\ngrant of bail as was set out in the case ofGurbaksh Singh Sibbia v. State of\nPunjab: (1980) 2 SCC 565 as well as in the case ofGudikanti Narasimhulu\n& Ors. v. Public Prosecutor, HighCourt of Andhra Pradesh: (1978) 1\nSCC 240 and Gurcharan Singh v. State (UT of Delhi): (1978) 1 SCC 118,\nwhere the common refrain is the discussion of application of discretion\njudiciously while dealing with the issue of bail, taking into account the fact\nthat the attendance of the accused at the trial has to be determined, for which\nbail is not to be withheld as a punishment since the issue of bail is one of\nliberty, justice, public safety and burden of the public treasury. However\nfacts and circumstances of each case will govern the exercise of judicial\ndiscretion in granting or cancelling bail.22.   The State respondent has stressed on the contention that the petitioner\nwas charged with very serious offences involving a minor victim who is a\nrustic village girl and the petitioner being a man of influence having been a\nmember of the Legislative Assembly of Meghalaya, if released on bail, he\nwill most likely influence and intimidate the witnesses.623.   It was also submitted that considering the nature and gravity of the\noffence, being one under thePOCSO Act, the mere fact that the petitioner\nhas been in jail custody for a long time cannot be the yardstick for grant of\nbail to the petitioner. The case ofState of Bihar v. Rajballav Prasad(supra)\ncited by the learned AAG is a case of cancellation of bail granted by the\nHigh Court to the respondent therein.24.   In this case the respondent Rajballav Prasad, who was an MLA at that\nrelevant point of time, was an accused in a case, amongst others underSection 4,6&8of the POCSO Act as well asSection 4-6of the Immoral\nTraffic (Prevention) Act, 1956, where the prosecutrix was a minor girl.\nPending trial, he had filed a bail application before the trial Court which was\ndismissed. He then preferred a bail application before the High Court which\nwas dismissed on withdrawal. Within three weeks thereafter, he filed\nanother bail application before the High Court which was allowed by the\nHigh Court by observing that presumption of innocence would continue to\nrun in favour of the accused/respondent until the guilt is brought home. The\nmatter came up before the Hon'ble Supreme Court by way of a Special\nLeave Petition (SLP) preferred by the State of Bihar and the Hon'ble\nSupreme Court after hearing the matter has allowed the appeal and cancelled\nthe bail granted to the respondent therein. The similarity to the case in hand\ncannot be ignored though the facts and circumstances may differ.25.   I have given my anxious consideration to the matter in hand,\nparticularly since it involves the liberty of a citizen who is entitled to his\nfundamental rights, including the benefit ofArticle 21of the Constitution of\nIndia. It is well settled that the golden principle of bail jurisprudence is that\n"bail is the rule and jail an exception". However, it is also to be noted that\nthrough the evolution of time, without compromising the basic principles of\nbail jurisprudence, the Courts have also added the aspect of discretionary\njurisdiction as regard bail jurisprudence, which calls for cautious exercise by\nbalancing the valuable right of liberty of an individual and the interest of7society in general. Therefore, it is said that consideration for grant or refusal\nof bail would mostly depend on factors, some of which has been enumerated\nat para 20 above. Which though it refers to the issue of grant of bail, the\nsame can be applied to a case for refusal of bail too.26.   It is also well settled that consideration for grant or refusal of bail\nwould mainly depend on the facts and circumstances of a particular case.\nThe fact that the recording of evidence is complete in the Nongpoh case,\nwhile evidence has not yet been led in the Jowai case, the presumption\nwould arise that given the antecedents of the petitioner herein, the\nprosecutrix and other witnesses may not be able to give their statement in a\ncongenial atmosphere. In this regard, it would not be out of place to refer to\nparagraph 26 of Rajballav Prasad's case quoted below as:"26. We are conscious of the fact that the respondent is only an\n             undertrial and his liberty is also a relevant consideration.\n             However, equally important consideration is the interest of the\n             society and fair trail of the case. Thus, undoubtedly the courts\n             have to adopt a liberal approach while considering bail\n             applications of accused persons. However, in a given case, if it\n             is found that there is a possibility of interdicting fair trial by the\n             accused if released on bail, this public interest of fair trial\n             would outweigh the personal interest of the accused while\n             undertaking the task of balancing the liberty of the accused on\n             the one hand and interest of the society to have a fair trial on\n             the other hand. When the witnesses are not able to depose\n             correctly in the court of law, it results in low rate of conviction\n             and many times even hardened criminals escape the conviction.It shakes public confidence in the criminal justice-delivery\n             system. It is this need for larger public interest to ensure that\n             criminal justice delivery system works efficiently, smoothly and\n             in a fair manner that has to be given prime importance in such\n             situations. After all, if there is a threat to fair trial because of\n             intimidation of witnesses etc., that would happen because of\n             wrongdoing of the accused himself, and the consequences\n             thereof, he has to suffer. This is so beautifully captured by this\n             Court inMasroor v. State of UP, (2009) 14 SCC 286 in the\n             following words: (SCC p. 290, para 15)\n                           "15. There is no denying the fact that the liberty of\n                    an individual is precious and is to be zealously protected\n                    by the courts. Nonetheless, such a protection cannot be8absolute in every situation. The valuable right of liberty\n                    of an individual and the interest of the society in general\n                    has to be balanced. Liberty of a person accused of an\n                    offence would depend upon the exigencies of the case. It\n                    is possible that in a given situation, the collective interest\n                    of the community may outweigh the right of personal\n                    liberty of the individual concerned.In this context, the\n                    following observations of this Court inShahzad Hasan\n                    Khan v. Ishtiaq Hasan Khan,(1987) 2 SCC 684 are quite\n                    apposite: (SCC p. 691, para 6)\n                            "6... Liberty is to be secured through process of\n                    law, which is administered keeping in mind the interests\n                    of the accused, the near and dear of the victim who lost\n                    his life and who feel helpless and believe that there is no\n                    justice in the world as also the collective interest of the\n                    community so that parties do not lose faith in the\n                    institution and indulge in private retribution.' "27.   In view of the above, I am of the opinion that the petitioner has not\nbeen able to make out a case for grant of bail.28.   This petition is accordingly dismissed.29.   Before parting with this case, it is observed herein that the High Court\nof Meghalaya vide Notification No. HCM.II/03/2013/Estt/2007-A, dated\nShillong 21st August, 2020 has directed all Subordinate Courts in the State of\nMeghalaya to resume physical functioning of Courts. In such a situation, the\ncontention of Mr. K. Paul, learned counsel for the petitioner that the\nprevailing pandemic situation would not allow speedy disposal of cases is\nunfounded. Situated thus, I would like to impress upon the Trial Courts that\nin the interest of speedy disposal of the case, the outer limit of 6(six) months\nfrom the date of this order may be adhered to while disposing of the two\ncases at Nongpoh and Jowai respectively.30.   Registry is directed to send copy of this order to the learned Special\nJudge (POCSO), Nongpoh and Jowai respectively for compliance.931.    With the above, these instant applications are disposed of by this\ncommon order. No cost.Judge\n\n\nMeghalaya\n27.08.2020\n"D. Nary, PS"10