Major Shailendra Kumar Yadav vs State of Assam

Counsel for the Petitioner : Mr. S Mitra

Counsel for the Respondent : PP, Assam.

CORAM : Justice Sushmita Phukan Khaund 

Overview

In a significant case concerning allegations of abuse and inhuman treatment of a minor, the Gauhati High Court, led by Justice Susmita Phukan Khaund, granted bail to Major Shailendra Kumar Yadav, an Army officer, who was accused of committing several serious offences under the Indian Penal Code (IPC), the Protection of Children from Sexual Offenses (POCSO) Act, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The accused had been in custody since September 2023 and was charged in connection with the alleged physical and emotional abuse of a minor girl placed under his care.

Factual Matrix

The victim, a minor girl, was entrusted to the care of Major Shailendra Kumar Yadav and his wife by the informant, presumably with the belief that they would provide her protection and proper care. However, the reality of the victim’s situation was starkly different. Instead of receiving care, the victim was subjected to extreme cruelty, physical assault, and forced into domestic labor.

The First Information Report (FIR) details how the petitioner’s wife was primarily responsible for the physical abuse of the victim, who was allegedly assaulted mercilessly on several occasions. In addition to this, the victim was also coerced into performing various household chores, including taking care of the petitioner’s infant child, as part of her forced labor. The FIR further asserts that the petitioner’s wife took nude photographs of the victim and threatened to upload them to the internet unless the victim complied with her demands. There were also times when the petitioner himself allegedly participated in the assaults, either directly or through passive acquiescence, failing to intervene despite his knowledge of the abuse.

The victim’s injuries were reportedly grievous, with visible marks of torture across her body, including cuts, bruises, and broken teeth. Photographic evidence corroborated these claims, showing the victim in distressing conditions. The victim’s statement, recorded under Section 164 of the Criminal Procedure Code (CrPC), also supported the allegations of physical abuse and wrongful confinement. The victim revealed that she was not allowed to meet her parents and was kept isolated, which indicated a clear case of wrongful confinement under Section 374 IPC.

Arguments Advanced by the Petitioner

The defence, represented by Advocate S. Mitra, argued that Major Shailendra Kumar Yadav should not be held responsible for the crimes primarily attributed to his wife. It was contended that the principal accused in the case was the petitioner’s wife, and the petitioner should not be held accountable for her actions. The petitioner further argued that the grievous injuries suffered by the victim were inflicted solely by his wife, and that he was not involved in the physical assaults.

The defence also challenged the applicability of Section 374 IPC, contending that the informant had voluntarily handed over the victim to the petitioner and his wife for care, which, according to the petitioner, negated the charges of wrongful confinement. The petitioner further argued that no charges under Section 12 of the POCSO Act could be levied against him as the evidence did not suggest his direct involvement in any sexual offense.

Additionally, the petitioner’s counsel submitted that he had been in detention for over 70 days without trial and that his continued incarceration was adversely affecting his family, particularly his young child, who required medical attention. It was further argued that the petitioner was willing to cooperate with the investigation and that there was no risk of him fleeing or influencing witnesses, as he was posted at a location far from the jurisdiction of the court.

Arguments Advanced by the Respondent (State of Assam)

On behalf of the State, Public Prosecutor M. Phukan vehemently opposed the grant of bail, emphasizing the gravity of the charges against the petitioner. The State argued that the petitioner, as an army officer, held a position of authority and should have used his position to protect the victim rather than enabling or turning a blind eye to the abuse. The prosecution highlighted that the petitioner’s failure to intervene in the abuse perpetrated by his wife demonstrated his complicity in the crime.

The respondents also argued that the petitioner, given his position, had the ability to intimidate the victim, witnesses, and potentially influence the investigation. The seriousness of the injuries inflicted on the victim was underscored, with photographs and medical reports clearly documenting the abuse. The State further argued that the victim’s statement under Section 164 CrPC, along with the corroborative evidence in the form of photographs and witness testimonies, indicated that the petitioner was complicit in the crime.

The prosecution contended that the petitioner’s involvement went beyond mere negligence, as he had harbored and enabled his wife’s actions. The State emphasized that the petitioner had unlawfully confined the victim, subjected her to forced labor, and allowed her to be photographed in compromising positions.

Court’s Findings

Justice Susmita Phukan Khaund, after considering the arguments presented by both sides, acknowledged the serious nature of the charges against Major Shailendra Kumar Yadav and his wife. The court noted that the photographs and the victim’s statement under Section 164 CrPC clearly revealed that the victim had been subjected to extreme physical abuse and that grievous injuries had been inflicted upon her. The court observed that the petitioner, in his capacity as a husband and a father, should have taken responsibility for preventing the abuse or intervening to stop it. Instead, the petitioner failed to protect the victim, even though she was under his care. The court acknowledged that while the petitioner may not have directly inflicted all of the injuries, he was complicit in the crime by failing to act or prevent the cruelty that was taking place within his household. The petitioner’s inaction, coupled with his participation in some instances of the assault, pointed to his culpability. Additionally, the court found that the petitioner's failure to provide a genuine medical certificate or other supporting documentation for his child’s alleged medical condition undermined his argument for bail on the grounds of family hardship.

Conclusion

After considering the progress of the investigation, the serious nature of the allegations, and the evidence presented, Justice Phukan Khaund concluded that the petitioner could be granted bail, despite the incriminating materials against him. The court noted that the investigation had advanced significantly and that there was little risk of the petitioner influencing the investigation, particularly given his current place of posting. The petitioner was granted bail with conditions. The bail was set at Rs. 50,000 (Rupees Fifty Thousand) with two local sureties of like amount, to the satisfaction of the learned jurisdictional court. The court also imposed conditions that the petitioner must adhere to, failing which his bail could be canceled.