Page No.# 1/5 GAHC010151732025 2025:GAU-AS:11100 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2244/2025 BITUPAN DAS SON OF SRI KRIHAN DAS R/O VILL- MALOIBARI, P.S. KHETRI, DIST. KAMRUP (M), ASSAM VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:SMTI. JUNU DOIMARI W/O ADIT DOIMARI R/O UDMARI P.S. JAGIROAD DIST. MORIGAON ASSA Advocate for the Petitioner : MR. J I BORBHUIYA, MR A HOSSAIN,MR. L MOHAN,MRS. K H CHOUDHURY Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SHAMIMA JAHAN ORDER 20.08.2025 Heard Mr. J. I. Brbhuiya, learned counsel for the petitioner and Mr. B. Page No.# 2/5 Sharma, learned Addl. P.P., Assam for the State. Also heard Ms. R. Deka, learned counsel representing the respondent No.2. 2. By this application filed under Section 483 of the BNSS, 2023 the petitioner, viz., Sri Bitupan Das, has prayed for bail in connection with POCSO Case No.69/2025 arising out of Jagiroad P.S. Case No.50/2025 registered under Sections 137(2)/142/3(5) of the BNS, 2023 as well as Section 6 of the POCSO Act, 2012 pending in the Court of learned Additional Sessions Judge-cum-Special Judge, POCSO, Morigaon. 3. The F.I.R. dated 02.03.2025 lodged by the mother of the victim reveals that her 13 year old daughter went missing after she went to the house of her friend and that later on making personal enquiry and search the informant came to know that the petitioner along with another accused person kidnapped both her daughter and her friend from a particular village and have kept them concealed in some unknown place. 2. On receipt of the said F.I.R., the police registered the case, investigated the same and arrested the petitioner. 3. During investigation the victim was recovered being in company of the accused person i.e. the petitioner from Guwahati, Assam. The police after completion of the investigation submitted charge-sheet on 31.03.2025 against the petitioner as well as the co-accused. Page No.# 3/5 4. Mr. J. I. Barbhuiya, learned counsel appearing for the petitioner submits that the petitioner and the victim had a love relationship since long and that both of them desires to get married in near future. He has also pointed out to the statement given by the victim under Section 183 of the BNSS before the Court wherein she had clearly stated that she on her own volition went with the accused to Guwahati in search of some work and that after reaching Guwahati her friend left with the co-accused and she stayed with the petitioner and that during the stay they entered into physical relationship. Mr. Barbhuiya has, however, drawn attention of this Court to the medical report and submits that the same does not indicate any sign of sexual assault to the victim. Mr. Barbhuiya also submits that grounds of arrest under Article 22(1) of the Constitution of India as well as under Section 47 and 48 of the BNSS were not properly given to the accused persons and on these grounds the learned counsel has prayed for bail of the petitioner. 5. Mr. B. Sharma, learned Addl. P.P., Assam submits before this Court by referring to the Trial Court records that the victim was 13 years of age when the instant incident had occurred. He submits that although the victim in her statement both before the Magistrate as well as the Court had stated that she at her own volition went with the petitioner but the same would not matter since she was a minor and as such has prayed Page No.# 4/5 that no bail may be granted to the petitioner. 6. Ms. Deka, learned counsel appearing for the respondent No.2 had submitted that the victim was minor and that too, was 13 years of age and she supported the arguments of Mr. B. Sharma to the effect that although she had gone on her own volition, she was a minor. 7. Heard the learned counsel for the parties and perused the case records. 8. It is noticed that the victim has stated before all the authorities i.e. the police, the Magistrate as well as the learned Court of Special Judge, POCSO that she and her friend had gone to Guwahati in search of jobs and during the search she went with the petitioner to his sister’s house and that they stayed together in Guwahati. She also stated that during the stay with the petitioner they had sexual relationship amongst them. Although the consent of the victim as can be seen from the statements of the victim will not matter since she was 13 years of age but there is nothing on record to show that the petitioner had kidnapped her and had concealed her as stated in the First Information Report. Further, the medical evidence also shows that there were no injuries on her private parts and rather, there is a finding that the hymen was intact. It is also noticed that the grounds of arrest as required under Article 22(1) of the Constitution of India and Sections 47 and 48 of the BNSS were not Page No.# 5/5 properly communicated although notices under the said sections were given to the petitioner but the same does not fulfill the requirements of law as mandated by the Hon’ble Supreme Court in its decisions in the case of Pankaj Bansal Vs. Union of India reported in (2024) 7 SCC 576 and in Prabir Purkayastha Vs. State (NCT of Delhi) reported in (2024) 8 SCC 254. 9. In view of the above, this Court is of the view that the petitioner may be released on bail on furnishing a bail bond of Rs.20,000/- with one surety of the like amount to the satisfaction of the learned Special Judge, POCSO, Morigaon on the following condition(s) :- 1) That the petitioner will cooperate with the trial and would appear before the Trial Court as and when called for. 2) That the petitioner will not tamper with the evidence or influence the witnesses connected with the instant case. 10. The Bail Application stands disposed of. JUDGE Comparing Assistant