Gauhati High Court
Page No.# 1/7 vs The State Of Assam on 8 September, 2022
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/7
GAHC010163522022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2031/2022
MD. NASIDUR RAHMAN AND ANR
S/O SAMSUR RAHMAN
R/O VILL- HATIMURIA, WARD NO. 1,
P.S. MOIRABARI, DIST. MORIGAON, ASSAM
2: MD. MUSTAFIZUR AHMED
S/O ABDUL ZABBAR
R/O VILL- SALKATI PATHAR
WARD NO. IX
P.S. DHING
DIST. NAGAON
ASSA
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. B D KONWAR SR. ADV.
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
08.09.2022 Heard Mr. B.D. Konwar, learned Sr. Counsel appearing for the accused petitioners.
Page No.# 2/7 Also heard Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam appearing for the State respondent.
2. By this petition under Section 439 Cr.P.C., the petitioners, namely 1. Md. Nasidur Rahman and 2. Md. Mustafizur Ahmed have prayed for grant of bail in connection with Moirabari P.S. Case No. 155/2022 registered u/s 228A of the IPC read with Sections 14/15 of the POCSO Act, 2012 r/w Section 67B of the I.T. Act, 2000 (corresponding to G.R. Case No. 1471/2022).
3. The case diary, as called for, is placed before the Court.
4. As directed, the investigating officer has personally appeared before the Court along with the case diary and an 'explanation report' citing the grounds for inability to produce the case diary on the last date.
5. Perused the explanation and on being satisfied the same is accepted. The investigating officer is exonerated from personal appearance.
6. The explanation submitted by the investigating officer is taken on record.
7. The FIR reads as extracted hereinbelow-
"To, The Officer in Charge, Moirabari Police Station Sub- FIR Sir, I have the honour to report that a few days back a group of boys made few nude video clips of a minor girl at the bank of river Brahmaputra and made it viral in social media. After that the matter was reported at Moirabari Police Station by the father of the minor girl and a case is registered vide Moirabari PS Case No- 150/22 U/S 354(A)/365 IPC RW Sec-12 of POCSO Act, 67A of IT Act and investigation is going on in this regard. However, a few news channels and portals namely- NewsNow, News North East Assam, B24 News, COBRA News, Current Trend Assam, BMC News, SANGBAD LAHAR, DK365, Sj NEWS, Sankar Jyoti, Da NEWS PLUS, ISHAN NEWS and others astonishingly published the news in social media showing sexually explicit contents of the minor girl exposing the victim of POCSO act case. The video published by the News portals/channels showed the videos addressing it to pornographic movie shooting ignoring the fact that the victim is a minor girl. So, I lodge this FIR so that necessary legal actions can be taken against the Page No.# 3/7 persons involved in the circulation of the nude videos of the minor girl.
Submitted for favour of kind information and necessary action.
Yours faithfully SI Rudra Kt. Bordoloi of Mairabari PS 23/07/22"
8. Mr. B.D. Konwar, learned Sr. Counsel appearing for the accused petitioners, contends that the accused petitioners are journalists/news reporters by profession. The Accused petitioner No. 1 is serving under NewzNow, News North East, Assam and Prag News, while the accused petitioner No.2 is correspondent of Da News Plus, Guwahati, Assam. Mr. Konwar further submits that the accused petitioner No. 1 has been in custody since arrested on 24.07.2022 while the accused petitioner No. 2 has been in custody since 25.07.2022. Mr. Konwar emphatically submits that on 17.07.2022, the victim disappeared from home and later on, came to be known that she, who is a minor, in association with some boys made some objectionable video clips.
9. According to Mr. Konwar, learned Sr. Counsel, as per the birth certificate, the victim's date of birth is 28.07.2005 meaning thereby that she was 16 years 11 months and 22 days on the date of the alleged occurrence, that is, on 17.07.2022. Mr. Konwar emphatically submits that on enquiry, it is learnt that the alleged victim girl is a major and earlier, she was married and in that regard a police case was also registered. Mr. Konwar contends that the offence u/s 228A of the IPC is a bailable offence and Section 15 of the POCSO Act is an offence for which the maximum prescribed punishment is 3 years imprisonment and further, the offence u/s 67B of the I.T. Act does provide punishment of imprisonment for 5 years. Mr. Konwar contends that the essential ingredients of the aforesaid offences are not attracted to the instant case. According to Mr. Konwar, learned Sr. Counsel, in their line of duty, the accused petitioners had highlighted only the police inaction into the incident and it was only when the incident was reported in the media, steps were promptly initiated for Page No.# 4/7 apprehension of the culprits. It is absolutely the local police high handedness against the accused petitioners, who have brought into the public domain the illegal activities of Moriabari Police Station which, in fact, provoked the ire of the police and for this reason, the accused petitioners are roped into the instant case on false accusation. Mr. Konwar strenuously submits that the accused petitioners are subjected to constant threat by the police, which amounts to a threat to freedom of press and the right to information of the citizens and thus, police have brazenly violated media rights, which include reporting about the absolutely true case in question. The accused petitioners believe, Mr. Konwar submits, that such undemocratic and vindictive action of the police has concertedly instilled a sense of fear among the journalists in carrying out their onerous duties of impartially and independently reporting news items based on truth to the public. It is needless to state, Mr. Konwar contends, that the police must respect the rights of the media and the right to free speech/reporting and if it is stifled, then the claims being made about freedom of press are nothing but hollow and democracy will be in peril. Mr. Konwar, therefore, submits that considering the facts that the identity of the victim was not being disclosed in the video clip and the accused petitioners are co-operating with the investigating agency and further, their length of detention, the bail application of the accused petitioners may be considered leniently subject to any condition(s).
10. Opposing the bail application, Mr. B.B. Gogoi, learned Addl. Public Prosecutor, submits that the case diary reveals abundance of incriminating material against the accused petitioners. Mr. Gogoi further submits that the case diary shows that in connection with Moirabari P.S. Case No. 150/2022 filed by the victim's father against two accused persons involved in the case and the accused petitioners herein demanded Rs.2,00,000/ from the father of the victim, lest to publish the video clips of the incident, which he refused to pay. Mr. Gogoi submits that on receipt of the information about the aforesaid cognizable offence, one S.I. Rudra Kt. Bordoloi of Moirabari P.S. filed the present FIR before the Officer-in-Charge of the same police Page No.# 5/7 station and thereupon, the present case being Moirabari P.S. Case No. 155/2022 is registered on 23.07.2022. Mr. Gogoi further submits that as a result of the publication/display of the nude video clips of the victim minor girl in the news channels has brought stigma on her and her family's reputation in the society. It is also submitted that the accused petitioner No. 1 has a criminal antecedent as he is an accused in Moirabari P.S. Case No. 57/2021 u/s 353/294/325/326/506 of the IPC and Moirabari P.S. Case No. 59/2021 u/s 384/341/325/506 of the IPC, which have been pending trial after filing of charge-sheets by police. The aforesaid cases, Mr. Gogoi submits arose while misusing the sanctity of powers of media in committing various crimes by way of blackmailing the persons concerned for wrongful monetary gain. Therefore, Mr. B.B. Gogoi, learned Addl. Public Prosecutor, submits that if the liberty of bail is granted to the accused petitioners, who are members of electronic media, at the present stage, the ongoing impartial investigation into the case, it is certain, is likely to be adversely affected.
11. It is noticed that the accused petitioner No. 1 has been in judicial custody since 24.07.2022, that is, for 46 days and the accused petitioner No. 2 has been in judicial custody since 25.07.2022, that is, for 45 days.
12. On scrutiny of the case diary it is prima facie revealed that both the accused petitioners were responsible for publication of the objectionable video clips of the minor victim girl in the electronic media/channels. A perusal of the various statements of the witnesses recorded under Sections 161 and 164 Cr.P.C., it is prima facie revealed that they demanded Rs.2 lakhs from the victim's father by threatening him and his family to display the objectionable video clips of his minor daughter in public/social media platform. The serious impact of the aforesaid criminal acts of the accused petitioners, the case diary reveals, is that the minor victim has been facing social insecurity and stigma on her reputation.
13. The evidence so far collected in the case prima facie clearly makes out a case Page No.# 6/7 of serious deviation from the norms of conduct as a socially responsible media person.
14. The investigating officer, it is noticed, is yet to record the statements of the persons, who are responsible for the conduct of day to day affairs of the electronic media houses named in the FIR itself. However, the electronic evidence in question has been seized by the investigating officer.
15. It is also noticed that co-accused persons are also yet to be arrested.
16. However, having considered the pros and cons of the evidence in its entirety so far collected/revealed against the present accused petitioners, this Court is of the considered opinion that further continuation of their detention in judicial custody in the interest of investigation may not be warranted.
17. Accordingly, it is provided that each of the accused petitioners, named above shall be released on bail of Rs.50,000/- (Rupees Fifty Thousand) with one surety of like amount to the satisfaction of the learned Special Judge (POCSO Act), Morigaon, subject to the following conditions-
i) That the accused petitioners shall cooperate with the Investigating Officer as and when required;
ii) That the accused petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Police Officer or the Court;
iii) That the accused petitioners shall refrain from committing any offences similar to the one of which they are accused or suspected of commission; and
iv) That the accused petitioners shall literally maintain the well recognised norms of conduct as a responsible media person during the period on bail.
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18. Be it mentioned here that any breach of the above conditions shall render cancellation of their bail in accordance with law.
19. Return the case diary.
This disposes of the bail application.
JUDGE Comparing Assistant