Seriousness & Nature Of Offence Has To Be Considered: Meghalaya HC Denies Bail To POCSO Accused

The Meghalaya High Court reiterated that the court must consider the seriousness and the nature of offence, more particularly, in cases of sexual assault against children or minors.

The Court was dealing with a bail application preferred by an accused who was arrested based on an FIR lodged by the mother alleging that her minor daughter was sexually assaulted.

A Single Bench of Justice W. Diengdoh said, “This Court has considered the submission made by the parties and would also reiterate that as far as the issue of bail is concerned, it is incumbent upon the court to consider, inter alia, the seriousness and the nature of the offence, more particularly, in cases of sexual assault against children or minors. Prima facie, it appears that the survivor was subjected to gang rape, the petitioner/accused being one of such perpetrators, it is a matter of evidence, and the appreciation of such evidence that the Trial Court would come to the conclusion as far as the trial is concerned, which in the opinion of this Court cannot be taken up in this instant application.”

Advocate S. Nongsiej appeared for the petitioner while AAG N.D. Chullai appeared for the respondents.

In this case, the minor daughter of the respondent woman was allegedly sexually assaulted by three persons. Hence, an FIR was registered under Sections 5(g) and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). It was submitted by the counsel for the petitioner that the accused may be enlarged on bail as he was arrested more than one year ago and the case was not proceeded in accordance with the relevant provision of POCSO Act, particularly Section 35.

Section 35 of POCSO Act stipulates that the trial of the case should be completed within one year. And, in this case, the charges were yet to be framed and there were as many as 32 prosecution witnesses to be examined, which would result in a prolonged trial. It was further submitted that the petitioner would then be deprived of his liberty to defend his case and even his right under Article 21 of the Constitution was threatened by such prolonged incarceration. Hence, it was prayed that the petitioner be enlarged on bail.

The High Court after hearing the contentions of the counsel observed, “… the Court is mindful of the nature and seriousness of the matter and under such circumstances, the petitioner/accused would have no ground to enable this Court to consider his prayer as far as bail is concerned. As far as the provision of Section 35 of the POCSO Act is concerned, this Court, as has been pointed out by the learned counsel for the petitioner/accused in a number of cases, has referred to such provision to enlarge the accused on bail on the ground that the trial has not been able to be completed within a period of one year.”

Section 35(2) of POCSO Act provides that, “the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence”. The Court in this regard noted that the expression ‘as far as possible’ has to be taken into account in a particular case, though, the court is not privy to the proceedings before the Trial Court.

“At this point of time, it can be presumed that the trial has not proceeded before the Trial Court for the reasons best known to the learned Special Judge, POCSO. Under the circumstances, at this stage, this Court is not inclined to allow this application. However, while rejecting this application, this Court, would direct the Trial Court to immediately frame the charges and to examine the survivor at the earliest within a period of 3(three) weeks from today. After the deposition of the survivor is recorded, the petitioner/accused is at liberty to approach the Trial Court or this Court for fresh consideration of the prayer for bail”, it directed.

Accordingly, the High Court dismissed the bail application.

Cause Title- Thosterning Lyngdoh Nonglait v. The State of Meghalaya and Ors. (Neutral Citation: 2024:MLHC:533)

Appearance:

Petitioner: Advocate S. Nongsiej

Respondents: AAG N.D. Chullai, and GA E.R. Chyne.

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