Page No.# 1/5 GAHC010188252024 2025:GAU-AS:296 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/2459/2024 ANOWAR HUSSAIN S/O ALI HUSSAIN R/O SALMARA PART-VII P.S. FAKIRGANJ DIST. SOUTH SALMARA MANKACHAR VERSUS THE STATE OF ASSAM AND ANR. TO BE REP BY THE PP, ASSAM 2:SOLIM UDDIN S/O LATE MOHAMMAD ALI R/O CHOTO HARIPUR P.S. SUKCHAR DIST. SOUTH SALMARA MANKACHAR ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY, MS R DEKA,MR. I U CHOWDHURY Advocate for the Respondent : PP, ASSAM, MS. M K BROWN, Amicus Curiae(R Page No.# 2/5 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK 08/01/2025 Heard Mr. H R A Choudhury, learned Senior counsel assisted by Ms. R Deka, learned counsel for the petitioner and Mr. B Sarma, learned Additional Public Prosecutor, Assam for the opposite party No. 1. Also heard Ms. M K Brown, learned Amicus Curiae appointed by the Court for the informant/opposite party No. 2. 2. The petitioner, namely, Anowar Hussain, son of Ali Hussain, resident of Salmara Part-VII, P.S. Fakirganj, District-South Salmara, Mankachar, has filed this application under Section 482 of BNSS, 2023, seeking pre-arrest bail apprehending his arrest in Special (POCSO) Case No. 78/2024 arising out of Sukchar P.S. Case No. 199/2023 registered under Sections 366(A)/376(3) of IPC read with Section 4 of POCSO Act corresponding to G.R. No. 747/2023. 3. The petitioner is a charge-sheeted accused in Special (POCSO) Case No. 78/2024 arising out of Sukchar P.S. Case No. 199/2023 under Sections 366(A)/354(A) IPC read with Section 8 of POCSO Act, presently pending before the Court of learned Special Judge (POCSO), South Salmara-Mankachar. 4. As per the FIR dated 03.08.2023 lodged by the informant/opposite party No. 2 before the Superintendent of Police, South Salmara-Mankachar, the case is that his daughter, i.e., the victim girl is a student of Class-IX. On 16.07.2023, while she was proceeding to her tuition class, the petitioner by inducing her to marry, took her to some unknown place and kept her there for 2/3 days and then the petitioner took her to his house. During this period, the petitioner on various occasions had sexually assaulted his minor daughter. When the family members inquired about her and made search for his minor daughter, she was recovered on 23.07.2023 from the house of maternal grandfather of the petitioner. When the matter was brought to the notice of the local public, on their advice the said written FIR was lodged before the Superintendent of Police, South Salmara Mankachar. Said written FIR of the informant/opposite party No. 2 was forwarded to the Sukchar Police Station, wherein it was registered as Sukchar P.S. Case No. 199/2023 under Sections 366(A)/376(3) of IPC read with Section 4 of POCSO Act corresponding to G.R. No. 747/2023. 5. Police after completion of investigation of the case has already submitted the charge-sheet in said Sukchar P.S. Case No. 199/2023 on 31.05.2024 against the petitioner under Sections Page No.# 3/5 366(A)/354(A) IPC read with Section 8 of the POCSO Act. 6. It is contended by the petitioner that he is 22 years old and the alleged victim, who is about 17 years 8 months old, is his cousin and the maternal grandfather of the petitioner from whose house the victim girl was allegedly recovered is also a relative of the family of the victim. As per the petitioner, the victim girl herself went to their house as the informant had fixed her marriage with another boy against her will for which she did not inform her parents about her whereabouts, although she was using a mobile phone with a different number at the same time, which was unknown to her parents. As the petitioner at the relevant point of time was associated with L&T Construction Company and he was attending his duties and has been away from the State of Assam since July, 2023 at Byculla in the State of Mumbai, Maharashtra, as such, the petitioner was unaware of any such case pending against him relating to said Sukchar P.S. Case No. 199/2023. As the charge- sheet has already been filed in the case, the petitioner submitted that he should be considered for bail. Further, it is stated that on consideration of his bail, he shall abide by any terms and conditions that may be imposed by the Court. 7. Mr. Sarma, learned Additional Public Prosecutor, Assam submitted that during the investigation of said Sukchar P.S. Case No. 199/2023, police visited the house of the petitioner on three occasions and notice was served upon the father of the petitioner informing him to produce the accused petitioner before police, but the accused petitioner did not appear before police during the investigation of the case and evaded arrest. As such, in the charge-sheet, the petitioner has been shown as an absconder. 8. The Court by order dated 17.09.2024 called for the records of said Special (POCSO) Case No. 78/2024 from the Court of learned Special Judge (POCSO), South Salmara-Mankachar along with the copy of the case diary pertaining to Sukchar P.S. Case No. 199/2023. 9. Mr. Sarma, learned Additional Public Prosecutor, Assam also submitted that the victim girl in her statement before police under Section 161 Cr.P.C. as well as in her statement recorded under Section 164 Cr.P.C. before the learned Judicial Magistrate, First Class, South Salmara Mankachar implicated the petitioner. 10. Ms. Brown, learned Amicus Curiae for the informant/respondent No. 2 from the records of the case submitted that the victim girl in her statement recorded under Section 161 Cr.P.C. before police as well as in her statement recorded under Section 164 Cr.P.C before the learned JMFC, South Page No.# 4/5 Salmara-Mankachar on 04.08.2023 indicated that the petitioner tried to have sexual intercourse with her which she resisted and because of which such act did not take place but he sexually assaulted her. 11. Ms. Brown, learned Amicus Curiae for the informant also submitted that as the petitioner himself stated that he was not available in the State of Assam for his job during the investigation of the case, there is all probability that if he is released on bail in said Sukchar P.S. Case No. 199/2023, he shall not make himself available before the learned Trial Court, i.e., the Court of the learned Special Judge (POCSO), South Salmara-Mankachar in said Special (POCSO) Case No. 78/2024 and the trial will be delayed or it will not take place. 12. Ms. 12. Ms. Brown, learned Amicus Curiae for the informant agreed with the submission of Mr. Sarma, learned Additional Public Prosecutor, Assam that police during investigation of the case visited the house of the petitioner and as such, he was fully aware of his involvement in the case. 13. It is seen that the petitioner has filed this pre-arrest bail application on 09.09.2024 seeking pre-arrest bail in said Special (POCSO) Case No. 78/2024 arising out of Sukchar P.S. Case No. 199/2023, pending before the Court of learned Special Judge (POCSO), South Salmara-Mankachar. 14. Perused the statement of the victim girl recorded under Section 161 Cr.P.C. as well as her statement recorded under Section 164 Cr.P.C. by the learned JMFC, South Salmara- Mankachar on 04.08.2023. 15. Also perused the FIR of the case lodged by the informant/opposite party No. 2. 16. From the records of the case, it is seen that the charge-sheet in said Sukchar P.S. Case No. 199/2023 along with the records was placed before the learned Special Judge (POCSO), South Salmara-Mankachar on 29.06.2024 and on perusal of the same, the learned Special Judge took cognizance of the offence under Section 366(A)/354(A) IPC read with Section 8 of the POCSO Act and issued summon to the petitioner, fixing the matter on 12.08.2024 for his appearance. 17. The record also reveals that on 12.08.2024, the petitioner through his counsel filed Petition No. 1572/2024 showing reasons for his non-appearance in the matter and sought for another date for his appearance which the learned Special Judge accordingly allowed and fixed the matter on 25.09.2024. On 25.09.2024, the petitioner remained absent in said Special (POCSO) Case No. 78/2024 arising out of Sukchar P.S. Case No. 199/2023 without any steps and as such, the learned Special Judge (POCSO), South Salmara-Mankachar in said Special (POCSO) Case No. 78/2024 issued order of Page No.# 5/5 Non-Bailable Warrant of Arrest against the petitioner for his appearance in the case. In the meanwhile, the petitioner has filed this pre-arrest bail application. 18. Since charge-sheet has already been filed in said Special (POCSO) Case No. 78/2024 arising out of Sukchar P.S. Case No. 199/2023 indicating the involvement of the petitioner under Sections 366(A)/354(A) IPC read with Section 8 of POCSO Act, this Court is the view that it is not a fit case to grant pre-arrest bail to the petitioner, named above, in said Special (POCSO) Case No. 78/2024 arising out of Sukchar P.S. Case No. 199/2023 as the matter is pending before the concerned Trial Court. 19. Accordingly, this pre-arrest application of the petitioner, namely, Anowar Hussain in said Special (POCSO) Case No. 78/2024 arising out of Sukchar P.S. Case No. 199/2023 stands rejected. 20. Needless to say the petitioner may approach the appropriate forum for his regular bail in said Special (POCSO) Case No. 78/2024 arising out of Sukchar P.S. Case No. 199/2023 pending before the Court of learned Special Judge (POCSO), South Salmara-Mankachar. JUDGE Comparing Assistant