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The Sikkim High Court has recently held that bail cannot be granted on ground of ill-health if a prima facie case of heinous nature is made out against the accused.

A single bench of Justice Meenakshi Madan Rai rejected bail application of the petitioner on the ground that the offence alleged are heinous in nature.

The Petitioner is Principal of a School, aged about 58 years, accused of the offence under Section 354 of the Indian Penal Code, 1860, Section 8 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015. He was arrested on 03.03.2021 in connection with Namchi Police Station Case bearing FIR No.07/2021 of the same date.

The Learned Senior Counsel for the Petitioner, submitted that the Petitioner is innocent and falsely implicated in the instant case and has urged that he is a responsible person running a well-established Private School and is also a Politician having elected as a Councillor and given the responsibility of Vice Chairman of the Gorkha Territorial Administration. That, he is a well reputed Social Worker and owns large property in South Sikkim. He further submitted that the FIR was lodged on 03.03.2021 and from 04.03.2021 (forty four days) on account of his numerous ailments, he was in the hospital. On this count, reliance was placed on the medical document addressed by the Medical Superintendent, Namchi Hospital to the Assistant Superintendent of Police (Prison), Namchi, South Sikkim, dated 01.04.2021.

“It was urged by Learned Senior Counsel that the Petitioner is suffering from Diabetes Mellitus, Heart disease, Dyslipidemia, Hypertension, Hyperuricemia and Renal Calculus. That, the Doctor has observed that a Hypoglycemic attack may occur at any time of the night and has to be tackled urgently, this ground alone suffices for grant of bail.”

He further stated that the Statement of the victim was recorded under Sections 164 and 161 of the Code of Criminal Procedure, 1973 wherein an effort has been made by her to improve her case. The previous application for bail filed by the Petitioner before the Court of the Learned Special Judge, POCSO Act, 2012 at Namchi, South Sikkim which was rejected without due consideration of the grounds put forth.

On the other hand, The Learned Additional Public Prosecutor put forth the contention that the victim is a child of 17 (seventeen) years studying in the School run by the Petitioner as the Principal stated that while paying personal attention to the victim touched her inappropriately and gave indirect hints seeking sexual favours from her. He also verbally abused her, made her do household chores and give him massages. Also, that since the date of his arrest, the Petitioner has remained in the Hospital with the purpose of defeating the law and the Charge-Sheet is yet to be submitted and further investigation in the matter is being continued during the course of which, it has come to light that the mother of the victim who was the Complainant, is being pressurized to change her Statements against the Petitioner and also that he had perpetrated the same acts on other girl Students as he did on the victim.

He further submitted that, if the Court exercise its discretion in favour of the Petitioner, in all likelihood, he will abscond as not only is he an influential person and he would return to run his School in which there are many girl Students therefore repetition of the offence cannot be ruled out for the aforementioned reasons. Hence, the Petition for bail be rejected.

Taking into account the factual matrix of the present case the bench observed that, “it is now well settled that the circumstances which are to be factored in while considering an application for bail are; (i) existence of prima facie case against the accused, (ii) the nature and gravity of the accusations, (iii) the penalty likely to be imposed, (iv) chances of the accused absconding on being enlarged on bail, (v) the antecedents and standing of the accused in society; (vi) likelihood of repetition of the offence, (vii) reasonable apprehension of evidence being tampered with and witnesses being influenced; and (viii) the course of justice being defeated by grant of bail.”

“The FIR lodged by the victim’s mother reveals that her child was a boarder studying in the Private School of the Petitioner. She was inappropriately touched by the Petitioner, mentally harassed and verbally abused by him. That, the Petitioner also told the victim, his Student, that he wanted to marry her and when she refused his overtures, he leaked their photographs by editing it and putting the victim’s reputation in jeopardy.”- observed the bench.

Further, the bench took into consideration the opinion of the doctor and observed “that the Petitioner has been on medication for his ailments reflected therein, for many years. He has also recorded that the Petitioner’s condition is stable. The Doctor apprehends a hypoglycaemic attack which, according to him, requires to be managed immediately on its occurrence. It is worth observing here that presently there is no immediate threat to his life. All his ailments are under control and well managed by medication. The gravity of the offence is necessarily to be taken into consideration by this Court and the acts of the Petitioner are indeed heinous having been perpetrated on a minor under his care and guidance.”

The court observed that,

“In view of the discussions hereinabove, I am of the considered opinion that there is a prima facie case against the Petitioner, although I make it clear that at this stage, elaborate examination of evidence has not been embarked upon nor are the merits of the case being touched upon, this is to avoid any prejudice to the Petitioner. The Bail Application thus deserves to be and is accordingly rejected and disposed of.”

Further, the  Medical Superintendent who had issued the Communication dated 01.04.2021 to the Assistant Superintendent of Police (Prison) regarding the medical condition of the Petitioner, was asked to brief the Jail authorities in this context and all necessary medications of the Petitioner shall be made available for him in the Jail.

 

Case title- Lopsong Lama Yolmo vs. State of Sikkim, 2021