'Granting Bail On Humanitarian Grounds Not Legally Tenable': Meghalaya High Court In POCSO Case

The Meghalaya High Court on Friday observed that granting of bail on humanitarian grounds is not legally tenable while setting aside the bail granted to an accused under the Protection of Children Against Sexual Offences Act (POCSO Act).

Justice W Diengdoh was adjudicating upon a criminal revision petition seeking to set aside the bail granted to an accused who had allegedly kidnapped, raped and killed a minor. It was alleged by the State that a Special POCSO Judge had granted bail to the accused only on humanitarian and medical grounds without considering the gravity and nature of the offence.

Setting aside the impugned order, the Court observed,

"In bail jurisprudence the concept of granting bail on humanitarian ground is not so prevalent and the same is not legally tenable which also renders the impugned order passed on this account to fail the scrutiny of law."

In the instant case, a charge sheet had been filed against the accused under Sections 364 (kidnapping or abducting in order to murder), 302 (punishment for murder), 201 (causing disappearance of evidence of offence or giving false information to screen offender) of the Indian Penal Code as well as Section 3(a)/4/11(iv)/12 of the POCSO Act.

During the proceedings, counsel appearing on behalf of the State submitted that the Special Judge had not applied his mind while passing the interim order and had issued the order in a "mechanical manner". It was further argued that the bail was granted without considering the gravity and nature of the offence, where the victim was kidnapped, murdered and raped.

The State further pointed out that the grant of bail on health grounds was untenable as the Jail Superintendent had affirmed that the accused had been receiving the necessary medical facilities while in custody. It was also contended that the accused resides next door to the family of the deceased victim and would thus have easy access to the witnesses and could thus influence or threaten witnesses. The counsel for the State also placed reliance on Section 29 of the POCSO Act which mandates that Courts are required to presume the guilt of the accused until proven otherwise.

On the other hand, the counsel for the accused argued that he had been arrested even though the first information report (FIR) did not name him. It was further contended that the nature of the accused's illness, kidney stones is serious and that it requires specialty care and thus bail on health grounds can be granted.

Pursuant to a perusal of the rival submissions, the Court observed that the Special Court could not have used its discretionary powers to grant bail on medical grounds.

"There is no extraordinary circumstances which would endanger the life of the Respondent/accused if bail is withheld, inasmuch as, the jail authorities are duty bound to ensure that proper medical treatment is afforded to the inmates, and there are also adequate number of treatment centres and hospitals where the Respondent/accused could be referred for treatment under custody", the Court opined.

Setting aside the impugned order, the Court further observed,

"... it is obvious that the impugned order was passed without due application of mind and the discretionary power was not exercised judiciously which leaves this Court with no option but to set aside and quash the same"

Case Title: State of Meghalaya v. Heibormi Dkhar

Click Here To Read/Download Order