Gauhati High Court
Nihar Prasad Sharma vs The State Of Assam on 26 October, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010159752021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2624/2021
NIHAR PRASAD SHARMA
SON OF LATE BARADA PRASAD SHARMA
R/O 2-B, ARCHCON ARCHAD, DR. B. BAROOAH ROAD, GUWAHATI, UNDER
PALTAN P.S. IN THE DISTRICT OF KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR S N SARMA SENIOR ADVOCATE
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
26.10.2021 Heard Mr. S.N. Sarma, learned Senior Counsel assisted by Mr. U.S. Borgohain for the accused-petitioner and Mr. K.K. Parasar, learned Additional Public Prosecutor for the respondent State of Assam.
2. By this application under Section 439, Code of Criminal Procedure, 1973 [CrPC], the Page No.# 2/6 accused-petitioner viz. Sri Nihar Prasad Sharma has prayed for his release on bail in connection with Golaghat Police Station Case no. 813/2021, registered under Sections 354A/346, Indian Penal Code [IPC].
3. The First Information Report [FIR] was lodged on 19.08.2021. In the FIR, the informant has alleged about sexual and mental harassment caused to her by the accused- petitioner as senior officer at workplace. The accused-petitioner is a Deputy General Manager [DGM] & HoD, Instrumentation Maintenance in the Numaligarh Refinery Limited [NRL]. The informant at that time was serving as a Graduate Engineering Trainee [GET] in the NRL.
3.1 The informant has specifically referred to an incident, stated to have occurred in the evening hours of 19.07.2021. The allegations, in a nutshell, are to the effect that on the date of the incident the informant made a visit to the office of the accused-petitioner to discuss about the work and she was requested to leave office with him in his car. The informant accordingly took a lift in the accused-petitioner's car to the NRL Township from the workshop. While coming back to the township, the accused-petitioner asked her to come to his quarter with him for a discussion as how to prepare for the GET confirmation examination. Though she initially declined the request she acceded to the same later on when the accused- petitioner insisted for the same. When they reached the accused-petitioner's quarter, the informant found that there was no other family member in the quarter. In the quarter, the accused-petitioner stated to have offered her some food and juice with vodka. At his repeated insistence, the informant agreed to have one drink. The accused-petitioner offered her one glass which he stated to have prepared specially for her. She took the drink. The accused-petitioner started asking some personal questions to her and also made some physical contact. The informant started to feel some dizziness and an urge for vomiting. Thereafter, she vomited two three times in the bathroom. The accused-petitioner asked her to sit and relax in the bed inside the bedroom. When she was in the bed with her eyes closed she felt that the accused-petitioners was forcing his body on him. The informant became unconscious and she vaguely remembered that the accused-petitioner was trying to lift her shirt, touch her body and private parts. Though she tried to resist she did not have the energy to fight back as she had passed out. When she got her senses back, she came back to Page No.# 3/6 the guest house directly at around 01-45 a.m. She was not aware as to what happened between 11-15 p.m. and 01-45 a.m. It was only in the next morning, the informant stated to have felt pain in her private parts while bathing. On the next day, the accused-petitioner met the informant and made comments about the previous night. On 21.07.2021 also, the accused-petitioner requested the informant to come to his quarter again. He repeated the same on 22.07.2021. The informant has mentioned that though she wanted to go to police but stopped herself in the fear of losing her and her family's reputation and her job as she was still a GET and not a permanent employee of the NRL. It is mentioned that the incident was reported to the Internal Complaints Committee [ICC] of the NRL on 20.07.2021 and a written complaint was thereafter, lodged before the ICC on 28.07.2021. The informant had been transferred to another department with the assistance of the ICC and thus, she no longer remained in the department of the accused-petitioner.
4. Upon receipt of the FIR on 19.08.2021, the FIR has been registered as Golaghat Police Station Case no. 813/2021. The accused-petitioner was arrested and after arrest, he was produced before the Court on 20.08.2021 and since then, he is in custody.
5. Mr. Sarma, learned Senior Counsel for the accused-petitioner has submitted that the informant has mentioned that the alleged incident took place on 19.07.2021 but the alleged incident was reported only on 19.08.2021 i.e. after about a month. He has submitted that the allegations leveled against the accused-petitioner are out rightly false and fabricated. The informant had lodged a complaint before the ICC only on 28.07.2021. In between the period from 20.07.2021 to 28.07.2021, both of them met in the office on numerous occasions and there were exchange of WhatsApp messages between them during the said period. In support of the said submission, Mr. Sarma has referred to the WhatsApp messages, annexed as Annexure-3 to the bail application. He has submitted that on 19.07.2021, as per the punching cards, both of them came out of the office at around 09-30 p.m. and the informant came in the car of the accused-petitioner to the guest house. According to him, the informant never visited the quarter of the accused-petitioner on 19.07.2021 and no such incident, as alleged in the FIR, had ever happened. Had it been so, the informant would not have taken a lift in the car of the accused-petitioner on 20.07.2021 from the office to the guest house. The Page No.# 4/6 actual reason for instituting the case against the accused-petitioner, he submits, is that the informant joined as a GET in the NRL in February, 2020 along with several other trainees. All GETs have to undergo training for a total period of 1 [one] year and during the training period, the trainees need to appear in three different written tests. When a trainee scores the minimum cut-off marks and good marks in the interview, the services of the GET gets confirmed in the NRL. The informant fared poorly in the pre-confirmation examinations and as a result, her training period got extended for another period of 3 [three] months whereas her all other GET batch mates got confirmed. Mr. Sarma has referred to the answer script of the informant annexed to the bail application, where she scored 16 out of total 50 marks. By referring to the additional affidavit, he has submitted that the version projected by the informant before the ICC is found at variance with the version projected in the FIR. Mr. Sarma has further submitted that the earlier bail application, BA no. 2208/2021 was rejected on 23.09.2021 primarily because the investigation was at its initial stage at that time and if liberty of bail was granted to the accused-petitioner, a senior executive in the NRL, the then ongoing investigation was likely to be adversely affected. There is no criminal antecedents of the accused-petitioner and he has never been arrested in any other criminal case other than the case in hand, he submits.
6. Mr. Parasar, learned Additional Public Prosecutor has submitted that the concerned case diary has been received. He has submitted that the earlier bail application was rejected on perusal of the materials in the case diary. He has submitted that while rejecting the bail prayer on the earlier occasion, it was observed that the medical report of the victim and the FSL report was not available which indicated that the investigation was at an early stage. He has submitted that the medical report is presently available in the case diary. As the informant has made allegations specifically alleging commission of sexual assault upon the informant, the prayer for bail deserves rejection.
7. I have duly considered the submissions of the learned counsel for the parties and have also perused the materials available in the case diary, as produced by the learned Additional Public Prosecutor.
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8. From the case diary, it is found that the statements of a number of witnesses including the informant, have been recorded under Section 164, CrPC apart from recording their statements under Section 161, CrPC. The statements of few other witnesses have also been recorded under Section 161, CrPC. The informant in her statement, has stated her age to be 26 years and thus, she is a major. In her statement, she has mentioned that the GET confirmation examination was held on 26.07.2021 and the interview was held on 31.07.2021. By an order dated 05.08.2021, she has been confirmed in service in the NRL. She has, thereafter, joined on 06.08.2021 in another department of that NRL. The medical examination report has been collected by the Investigating Officer [I.O.] of the case and the same is available in the case diary. It is noticed that the I.O. has also collected the CCTV footages from the NRL and seized a number of articles including the wearing garments of the informant. The FIR was lodged on 19.08.2021 and the accused-petitioner was taken into custody on 20.08.2021. Thus, the accused-petitioner is in custody for 68 days as on date. There are no materials in the case diary which go to indicate that the accused-petitioner has made any attempt to influence or divert the course of the investigation during the aforesaid period. It transpires that the ICC has also recorded the statements of a number of witnesses in the meantime.
9. It is settled that while considering an application for bail in respect of an accused person who is in custody, both the aspects - the interests of the society including that of the victim and the right of personal liberty - are to be considered and a balance has to be struct between the two. The period of custody is also a relevant factor and the same has to be considered with the totality of the circumstances and the criminal antecedents of the accused person in custody.
10. Having taken all the relevant factors in consideration including the progress made in the investigation carried out so far and the materials collected by the investigating authority till date and the period of detention of the accused-petitioner for 68 days since 20.08.2021, I am of the view that further custodial detention of the accused-petitioner is not necessary for the purpose of carrying out further investigation into the case and his release on bail, at this stage of investigation, is not likely to cause any prejudicial effect in the further investigation Page No.# 6/6 of the case, provided he continues to extend his assistance and co-operation in the further investigation of the case.
11. Accordingly, it is ordered that the accused-petitioner shall be released on bail on furnishing a bail bond of Rs. 25,000/- with one surety of the like amount to the satisfaction of the learned Chief Judicial Magistrate, Golaghat, subject to the conditions that :-
[i] the accused-petitioner shall co-operate with the investigation and make himself available for interrogation whenever required by the Investigating Officer [I.O.] of the case;
[ii] the accused-petitioner shall not, directly or indirectly, make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
[iii] the accused-petitioner shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
[iv] the accused-petitioner shall maintain law and order and he shall not commit an offence similar to the offence of which he is accused, or of the commission of which he is suspected;
[v] the accused-petitioner shall regularly remain present during the trial and co-operate the Court to complete the trial for the above offences, if charge sheeted in the case;
The application stands disposed of in the aforesaid terms. Return the case diary.
JUDGE Comparing Assistant