Page No.# 1/7 GAHC010068662025 2025:GAU-AS:8063 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1021/2025 MD HARMUJALI @ HURMUJ ALI S/O- MD. MAINUL HOQUE, VILL 1 NO. JHARGAON/BHOLABARI, P.S- KALAIGAON, DIST- UDALGURI, BTAD, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:MD. KARIM ALI S/O LATE ABDUL SEIKH VILL- 1 NO. JHARGAON P.O.- RANIPUKHURI P.S.- KALAIGAON DIST- UDALGURI BTAD ASSAM PIN-78419 Advocate for the Petitioner : K RAHMAN, MR. SAIDUL ALOM,MR. N. ISLAM Advocate for the Respondent : PP, ASSAM, MS P DAS (AMICUS CURIAE, R-2) Page No.# 2/7 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 18-06-2025 Heard Mr. Khalilur Rahman, learned counsel for the petitioner and Mr. B Sharma, learned Additional Public Prosecutor, Assam for the State respondent No. 1. Also heard Ms. Priyanki Das, learned Amicus Curiae for the respondent No. 2/informant, father of the minor victim girl. 2. By this application under Section 483 BNSS, filed on 28.03.2025, the petitioner, namely, Md. Harmuj Ali @ Hurmuj Ali, son of Md. Mainul Hoque, resident of Village-1 No. Jhargaon, Bholabari, P.S. Kalaigaon, District-Udalguri, BTAD, Assam, prayed for his bail in Special (POCSO) Case No. 55/2019 arising out of Kalaigaon P.S. Case No. 73/2018 registered under Section 448 of IPC read with Sections 8/10 of the POCSO Act, 2012 corresponding to G.R. No. 659/2018 in which he was arrested on 03.01.2025 and is in custody since then. 3. Prior to filing of this bail application under Section 483 BNSS, the petitioner earlier preferred a pre-arrest bail application under Section 482 BNSS in said Special (POCSO) Case No. 55/2019 arising out of Kalaigaon P.S. Case No. 73/2018, being AB No. 3331/2024 which was rejected by this Court on perusal of the records by order dated 18.12.2024. 4. Brief facts of the case is that that the respondent No.2 as an informant on 06.07.2018 lodged a written FIR before the Kalaigaon Police Station stating that in the afternoon of 05.07.2018, when he went to the market and his minor daughter, aged about 12 years was alone in his house and when she was cleaning the courtyard of his house around 05:00 pm, the petitioner came from backside and grabbed her from back so as to commit rape on her, then the minor victim girl tried to save herself from the clutches of the petitioner, made hue and cry, but the petitioner forcefully committed rape on her, where, the other accused of the case, namely, Md. Julfikar Ali was waiting outside the house of the informant guarding the petitioner. As soon as the other accused Md. Julfikar Ali saw the informant’s wife coming to his house, said Md. Julfikar Ali indicated the petitioner and both of the accused persons fled Page No.# 3/7 away from the scene. 5. The said FIR of the informant was accordingly registered as Kalaigaon P.S. Case No. 73/2018 under Section 448 IPC read with Sections 8/10 of the POCSO Act, 2012 against the petitioner and Md. Julfikar Ali. 6. By order dated 04.04.2025, the Court called for the records of Special (POCSO) Case No. 55/2019 as well as the records of Kalaigaon P.S. Case No. 73/2018 from the Court of learned Special Judge (POCSO), Udalguri. 7. On perusal of the records of the case, it is seen that the other co-accused, Md. Julfikar Ali was arrested in the case during the investigation of said Kalaigaon P.S. Case No. 73/2018, but the petitioner evaded arrest and absconded during investigation of the said Kalaigaon P.S. Case. On 04.10.2018, the arrested accused Md. Julfikar Ali was granted default bail as charge-sheet was not filed within the statutory period of 90 days. 8. During the investigation of the case, statement of the minor victim girl was recorded under Section 164 Cr.P.C. on 18.07.2024 by the learned Sub-Divisional Judicial Magistrate (S), Udalguri wherein the victim girl implicated the petitioner. The victim girl was also medically examined during the investigation of the case. 9. On completion of the investigation of the case, the concerned Investigating Officer on 25.08.2019 submitted the charge-sheet in said Kalaigaon P.S. Case No. 73/2018 vide Charge- Sheet No. 40/2019 against the petitioner and the other accused Md. Julfikar Ali under Sections 448/354(B)/34 IPC read with Section 8 of the POCSO Act showing the petitioner as an absconder accused. 10. After receipt of the said charge-sheet dated 25.08.2019 in Kalaigaon P.S. Case No. 73/2018, the said case was registered as Special (POCSO) Case No. 55/2019 before the Court of learned Special Judge (POCSO), Udalguri and the said Court on 16.11.2019 took cognizance of the offences under Sections 448/354(B)/34 IPC read with Section 8 of the POCSO Act and issued summons to both the accused persons of the case including the present petitioner. 11. The petitioner did not appear before the Court of learned Special Judge (POCSO), Udalguri in spite of receipt of summons for which the said Court had issued orders of Bailable Page No.# 4/7 Warrant of Arrest followed by Non-Bailable Warrant of Arrest and thereafter, order of Proclamation & Attachment (P&A) was issued. In spite of all these, the petitioner did not appear before the learned Special Judge (POCSO), Udalguri. 12. After execution of the order of P&A dated 16.11.2021 against the petitioner and on examination with the concerned Executing Officer (E.O.) of the said P&A on 24.06.2022, the Court of learned Special Judge (POCSO), Udalguri by order dated 24.06.2022 kept the Non- Bailable Warrant of Arrest issued against the petitioner pending in the concerned police station for future attempt and accepting the report on P&A from the concerned E.O., by the said order dated 24.06.2022, said Special (POCSO) Case No. 55/2019 was filed against the petitioner and the matter proceeded against the other accused persons Julfikar Ali. 13. On 08.01.2024 charge under Section 120(B) IPC read with Section 4 of the POCSO Act was framed against the other accused Julfikar Ali in said Special (POCSO) Case No. 55/2019 and summons were issued to the prosecution witnesses for recording of their evidence. 14. It is seen from the records of the case that after recording of the evidence of the prosecution witnesses including the informant, the victim girl and the other prosecution witnesses named in the charge-sheet who were thoroughly cross-examined by the defence on behalf of the accused Julfikar Ali, by judgment dated 12.11.2024, the learned Special Judge (POCSO), Udalguri acquitted the said other accused Julfikar Ali in said Special (POCSO) Case No. 55/2019 and he was set at liberty forthwith. 15. Thereafter, the petitioner on 12.12.2024 filed the said AB No. 3331/2024 which was rejected on 18.12.2024, noted above. 16. From the records, it is seen that the petitioner surrendered before the Court of learned Special Judge (POCSO), Udalguri in said Special (POCSO) Case No. 55/2019 on 03.01.2025 and he was taken into custody and since then he is in custody. 17. On 17.01.2025 charge under Section 4 of the POCSO Act was framed against the petitioner, where he pleaded not guilty and claimed to be tried. As such, the trial of the case against the petitioner begun since 17.01.2025 and summons were issued to the prosecution witnesses. 18. The record also reveals which is upto 23.05.2025 that evidence of prosecution Page No.# 5/7 witnesses Nos. 1, 2, 3 & 5 have already been recorded who were cross-examined by the defence. 19. Contention of the petitioner is that since the other accused of the case have already been acquitted by the Court concerned and considering his detention since 03.01.2025, this Court should consider his bail application in said Special (POCSO) Case No. 55/2019 and he should be released. It is also submitted on behalf of the petitioner that he shall co-operate during the trial of the said case and shall comply with any terms and conditions that may be imposed upon him while considering his bail in said Special (POCSO) Case No. 55/2019. 20. Both Mr. Sharma, learned Additional Public Prosecutor, Assam as well as Ms. P Das, learned Amicus Curiae for the respondent objected the bail of the petitioner stating that the matter relates to an incident of 05.07.2018 and the FIR was lodged on 06.07.2018 and thereafter, the petitioner absconded and after 6 years and 6 months, he surrendered before the Court of learned Special Judge (POCSO), Udalguri, when his pre-arrest bail application was rejected in said Special (POCSO) Case No. 55/2019. 21. Both of them submitted that only after his surrender on 03.01.2025, the trial of the said Special (POCSO) Case No. 55/2019 begun with regard to the petitioner. They submitted that if the petitioner is released on bail, at this stage, he will disappear again and the said proceeding will remain pending for long. In this regard, both Mr. Sharma, learned Additional Public Prosecutor, Assam as well as Ms. P Das, learned Amicus Curiae placed the order of the learned Special Judge (POCSO), Udalguri dated 18.03.2025, wherein the Trial Court observed that the said case is pending since long for the absence of the petitioner and there is every possibility of absconding and evading the process of trial by the petitioner. 22. Mr. Sharma, learned Additional Pubic Prosecutor, Assam placed reliance on the decision of the Hon’ble Supreme Court in the case of X -Vs.- State of Rajasthan, reported in (2024) INSC 909 = 2024 STPL 12498 SC. 23. The Hon’ble Apex Court in the case of X -Vs.- State of Rajasthan, reported in (2024) INSC 909 = 2024 STPL 12498 SC have held that — In serious offences, once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court should be loath in entertaining the bail application of an accused of Page No.# 6/7 the case.” 24. Their Lordships in said X -Vs.- State of Rajasthan further held that — “Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that right of the accused to have a speedy trial has been infringed.” 25. Considering the materials in the case records and as charge was framed against the petitioner on 17.01.2025 and that prosecution has already adduced evidence of 4 of its witnesses, named in the charge-sheet who were thoroughly cross-examined by the defence and considering the decision of the Hon’ble Apex Court in the case of X -Vs.- State of Rajasthan (Supra), the Court is of the opinion that the right of the accused petitioner to have a speedy trial has not been infringed. 26. For the reasons stated above and that the petitioner all along evaded arrest and absconded for which the entire proceeding got delayed, that was initiated way back in July, 2018, this Court is of the opinion that the detention of the petitioner since 03.01.2025 cannot be considered for his bail in said Special (POCSO) Case No. 55/2019 arising out of Kalaigaon P.S. Case No. 73/2018. 27. Accordingly, this bail application of the petitioner, Md. Harmuj Ali @ Hurmuj Ali, son of Md. Mainul Hoque, in said Special (POCSO) Case No. 55/2019 arising out of Kalaigaon Page No.# 7/7 P.S. Case No. 73/2018 pending before the Court of learned Special Judge (POCSO), Udalguri stands rejected. 28. It is observed that this order relates to bail of the accused petitioner, namely, Md. Harmuj Ali @ Hurmuj Ali, son of Md. Mainul Hoque in said Special (POCSO) Case No. 55/2019 arising out of Kalaigaon P.S. Case No. 73/2018 and not on merits of the case, where the trial of said Special (POCSO) Case No. 55/2019 is presently pending for adjudication before the Court of learned Special Judge (POCSO), Udalguri. 29. However, it is made clear that the learned Trial Court while adjudicating the said Special (POCSO) Case No. 55/2019 arising out of Kalaigaon P.S. Case No. 73/2018 shall not be influenced by any of the observations or findings, made herein above in this bail application and shall try to complete the adjudication of said Special (POCSO) Case No. 55/2019 in accordance with law. JUDGE Comparing Assistant