PEMPA RAPGAY BHUTIA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The Petitioner herein has been booked under Section 10 of the Protection of Children from Sexual Offences Act, 2012, for having committed sexual assault on a minor victim, aged about 11 years. Learned Counsel for the Petitioner submits that the allegation against the Petitioner is false as the objective of the victim herein and two other minor girls, aged about 13 years and 15 years, all housed in the Drishya Child Care Centre, Aho, East Sikkim, was to run away from the Centre. In pursuance thereof, the victim and the two other girls falsely informed their teacher that they had been molested at the Centre by the Petitioner. The teacher reported the incident to the Ranipool Police Station. Following such report, all three girls were counselled by a Counsellor from the Child Welfare Centre. During the counselling, the other two girls admitted that their allegations against the Petitioner were false. That, the instant FIR has lodged on 27-02-2020 by two Members of the Child Welfare Committee alleging assault on the 11 year old minor victim by the Petitioner. Learned Counsel further canvassed the contention, that, on 28-02-2020 when the alleged victim was taken to the place of occurrence by the Investigating Officer accompanied by three Child Line staff under the Child Welfare Committee, she specifically stated that the allegations made by her against the petitioner was untrue. The allegation is evidently false as the Petitioner is not even the In-Charge of the Centre, where the alleged victim is housed, but is the In-Charge of Drishya Rehabilitation Centre and lends a helping hand to the Drishya Child Care Centre in managing its accounts. On the basis of the FIR, the Petitioner was arrested on the same date from where he was remanded to judicial custody and has been in custody for 132 days. That, the Petitioner is innocent and his detention in custody will tantamount to punishment before conviction and thereby in violation of his fundamental rights. Besides, he is the only earning member in his family comprising of two aged parents who are Senior Citizens and require his constant attention. His incarceration would therefore prejudice his parents. To fortify his submissions, Learned Counsel placed reliance on Neeru Yadav v. State of Uttar Pradesh AIR 2015 SC 3703 and Nikesh Tarachand Shah v. Union of India 2018 CRI.L.J. 721 (SC). It was urged that the offence allegedly committed by the Petitioner entails imprisonment of a maximum of seven years and not with death or imprisonment with life. That should the Petitioner be enlarged on bail he undertakes not to tamper with evidence which in any event is not possible since the children are now lodged in the Freedom Open Shelter Home, Tathangchen, which is being run by a Non- Governmental Organisation to which the Petitioner has no access. That, on similar grounds the question of threatening the victim or influencing the other witnesses does not arise. Learned Counsel also submits that the Petitioner has no criminal antecedents and he will not abscond since he is a permanent resident of Sikkim. That, if he is enlarged on bail he is willing to abide by any stringent conditions imposed by this Court.

(2.) Learned Additional Public Prosecutor per contra submitted that the offence committed on the minor victim is a heinous. That, contrary to the submission of Learned Counsel for the Petitioner that the victim had stated at the place of occurrence, on 28-02-2020, that she had made a false allegation against the Petitioner, the investigation reveals no such circumstance and infact the Charge-Sheet clearly reveals that it was only the other two alleged victims who denied having been sexually assaulted by the Petitioner, while the minor victim consistently reiterated that she was infact sexually assaulted by the Petitioner not on one, but infact on three different occasions. That, there is every likelihood of the Petitioner tampering and threatening witnesses inasmuch as even if he is not in a position to threaten the victim directly the parents of the victim may be subjected to such ordeal as also other witnesses. That, the gravity of the offence and the penalty may also be considered by this Court. That, the Charge-Sheet has already been submitted and trial is to commence shortly, in such a circumstance, enlarging the Petitioner on bail at this stage would seriously prejudice the Prosecution case. That, in consideration of all the grounds put forth the Petition be rejected.

(3.) I have heard at length the rival submissions of Learned Counsel and carefully perused all documents placed before me.