Major Shailendra Kumar Yadav v. The State of Assam and Anr

ORDER

07.12.2023 Heard Mr S Mitra, learned counsel for the petitioner, Major Shailendra Kumar Yadav. Also heard Mr M Phukan, learned Public Prosecutor for the State of Assam/respondent No. 1.

¶2The petitioner has filed this application under Section 439 CrPC, with prayer for Page No.# 2/5 bail, as he is in custody since 25.09.2023, in connection with Haflong PS Case No. 74/2023, under Sections 326/354/370/374/34/506 IPC, read with Section 12 of the POCSO Act, 2012 and Section 3 of the SC and ST (Prevention of Atrocities) Act, 1989.

¶3The FIR unfolds that the victim was handed over by the informant under the care of the petitioner and his wife, but instead of taking care of the victim-'X', the petitioner and his wife treated her as a domestic helper and subjected her to inhuman cruelty day in and day out. The victim was compelled to take care of the petitioner's infant. She was mercilessly and relentlessly assaulted by the petitioner's wife and sometimes the petitioner also used to assault the victim. The allegations in the FIR also incriminates that the petitioner and his wife caused grievous hurt on the victim. Naked photographs of the victim was also forcefully clicked by the petitioner's wife, who threatened to upload those photographs through the social media and internet.

¶4It is submitted on behalf of the petitioner that the prime accused in this case is the petitioner's wife. The FIR clearly reveals that the grievous injuries were allegedly caused by the petitioner's wife and not by the petitioner. The petitioner cannot be held responsible under Section 374 IPC as the informant herself handed over the victim to the petitioner. The offence under Section 12 of the POCSO Act is not made out against the present petitioner. The petitioner has been languishing in jail for 70 days. His child, who is about three years old at present, is suffering from serious heart ailment with a hole in the heart. As his wife is behind bars, there is no one to take care of the child, who is in Page No.# 3/5 urgent need of medical aid.

¶5The learned Public Prosecutor has raised serious objection. It is submitted that although, it is mentioned in the FIR that the informant handed over the victim to the petitioner and his wife, but the victim was not taken care of as promised by the petitioner and his wife. Instead, both the petitioner and his wife subjected her to inhuman cruelty. It is submitted that the petitioner being a formidable person, an army personnel may be a threat to the witnesses as well as the victim.

¶6It is submitted by the learned Public Prosecutor that the petitioner being an army personnel is under the oath of saving the citizens, but contrary to this, in this case, he is the reason behind endangering the life of a citizen. He was privy to the atrocities committed by his wife to the victim.

¶7The Case Diary and the photographs of the victim clearly reveal that the victim had sustained grievous injuries. Her tongue was cut, her teeth broken, she had injury marks all over her body, including her back. The petitioner cannot remain oblivious of such cruelty extended to the victim, who was under his protection. The statements of the witnesses and the statement of the victim under Section 164 CrPC, clearly reveals that the petitioner did not allow the victim to meet her parents, which also implicates that the victim was wrongfully confined by the petitioner and his wife. A minor victim was forced to do household chores, like a slave. Human Rights have also been violated.

¶8The medical certificate marked as Annexure-N, appears to be a very vague Page No.# 4/5 document. The report was given on 22.11.2020, relating to the medical condition of the petitioner's minor son, who was an infant at that time, but at this juncture, the petitioner's son must be more than 3 years old. No certificate relating to medical emergency has been furnished by the petitioner. The old certificate without any seal of the hospital or the medical institute cannot be considered as a genuine document.

¶9Learned Public Prosecutor has raised serious objection against the bail petition.

¶10I have considered the submissions at the Bar with circumspection.

¶11Indeed, there are incriminating materials against the petitioner and his wife. The photographs clearly reveal that the victim was subjected to extreme cruelty, but fortunately, the victim has survived. The statement of the victim also reveals that the petitioner is also complicit. He was privy to the cruelty extended to the victim, but he never stopped his wife from subjecting the victim to such inhuman and relentless cruelty. He had indeed harboured his wife.

¶12I have also considered the submission of the learned counsel for the petitioner that he will cooperate with the remaining part of investigation. Case Diary reveals that the investigation has progressed considerably.

¶13I have considered the submission of the learned counsel for the petitioner that the petitioner who is posted at Palampur Holta Camp, Kangra, will be unable to influence the investigation or exercise threats on witnesses.

¶14To the reply of the learned Public Prosecutor, it has been submitted by the learned Page No.# 5/5 counsel for the petitioner that at this stage of investigation, the petitioner may not be treated like a convict in a trial by curtailing his liberty.

¶15After giving my thoughtful consideration to the submissions at the Bar and after considering the length of detention and the progress of investigation, the petitioner is enlarged on bail of Rs. 50,000/-(Rupees Fifty Thousand) only with two local sureties of the like amount to the satisfaction of the learned jurisdictional Court, under the conditions that-

i) the petitioner shall not go near the vicinity of the victim,

ii) the petitioner shall cooperate with the investigation as well as the trial,

iii) the petitioner shall not default appearance or jump bail,

iv) the petitioner shall not leave the country without prior permission, till completion of investigation as well as trial,

v) the petitioner shall not exercise threats to witnesses or tamper with the evidence. On breach of any of the bail conditions, the bail order shall stand cancelled.

¶16Bail Application stands disposed of.

¶17Send back the Case Diary. JUDGE Comparing Assistant

Page No.# 1/5 GAHC010251052023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./4066/2023 MAJOR SHAILENDRA KUMAR YADAV S/O RAM AWADHESH YADAV OFFICER MAP QUARTER, PALAMPUR HOLTA CAMP KANGRA, HIMACHAL PRADESH. VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM 2:MRS. NENGKHONEI SINGSIT M/O VICTIM,P.O. AN DP.S. HAFLONG SONGPIJANG VILLAGE DIMA HASAO, ASSAM,PIN-788819 Advocate for the Petitioner : MR. S MITRA Advocate for the Respondent : PP, ASSAM BEFORE HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND