[POCSO cases] Granting bail on humanitarian grounds not legally tenable: Meghalaya High Court

While setting aside the bail granted to an accused under the Protection of Children Against Sexual Offences Act (POCSO Act), the Meghalaya High Court recently held that granting bail on humanitarian grounds is not so prevalent and is not legally tenable (State of Meghalaya v. Heibormi Dkhar)..Justice W Diengdoh thus allowed a criminal revision petition seeking to set aside and quash the bail granted to an accused who had allegedly kidnapped, raped and killed a minor. A Special POCSO Judge had earlier granted bail to the accused, considering his ailment."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," the High Court observed..The chargesheet filed in the case remarked that a prima facie case was made out against the accused under Section 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 Sections of the POCSO Act.Before the trial could begin, a Special POCSO Judge granted the accused bail subject to conditions on medical and humanitarian grounds, after his father had filed an application. The State of Meghalaya moved the High Court in appeal, seeking cancellation of the bail along with police custody of the accused..Counsel for the State argued that that there was no application of mind and that the bail order was passed in a "mechanical manner". It was argued that the the bail was granted without considering the gravity and nature of the offence, where the victim was kidnapped, murdered and raped.Further, it was submitted that bail on health grounds was not tenable as the Jail Superintendent has confirmed that the accused was receiving the necessary medical facilities while in custody. The counsel added that the accused could easily influence witnesses given his residence close to the deceased's family and his sway over the local community.Section 29 of the POCSO Act mandates that Courts are required to presume the guilt of the accused until proven otherwise. However, the Special Judge did not follow this and ignored the findings in the chargesheet, it was stated.Counsel for the accused pointed out that his client was arrested even though the first information report (FIR) did not name him. It was submitted that the nature of the accused's illness, kidney stones, is so serious that it needs specialty care and therefore bail on sickness grounds can be granted under Section 437 of the Criminal Procedure Code (CrPC).Since the matter is at the evidence stage awaiting trial and the accused has not violated any of the bail conditions, it was submitted by the accused's counsel that the Court should direct that the proceedings be expedited and the instant revision petition be deemed not maintainable..Noting that the charges in the case were serious, the Court held that that Special Court could not have used its discretionary powers to grant bail on medical grounds. It said: "...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."Accordingly, the Court ruled: "... 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..."Additional Advocate General ND Chullai and Government Advocate R appear for the State. Advocate AH Hazarika appeared for the respondents. .[Read judgment]