Page No.# 1/5 GAHC010193732024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2823/2024 ROFIQUL ISLAM S/O- ABDUL KADER, @ KADER ALI, @ABDUL KADER SHEIKH, R/O- VILLAGE- BAILORCHAR, P.S AND DIST-DHUBRI, ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP ASSAM 2:ANAR HUSSAIN S/O- LATE ABDUL GONI R/O- KOLAPANI PART II JORDARPARA P.S AND DIST- DHUBRI ASSAM PIN-78330 Advocate for the Petitioner : MD IMRAN, MR. S HAQUE,MR S H SIKDAR Advocate for the Respondent : PP, ASSAM, MS. M K BROWN, (AMICUS CURIAE, R2) Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 05.02.2025 1. Heard Mr. S.H. Sikdar, the learned counsel for the petitioner. Also heard Mr. R.J. Baruah, the learned Additional Public Prosecutor, Assam, as well as Ms. M.K. Brown, learned Amicus Curiae, learned counsel for the respondent No. 2. 2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita(BNSS), 2023 has been filed by the petitioner, namely, Rofiqul Islam, who has been detained behind the bars since 04.07.2023, in connection with Special Case No. 180/2023, arising out of Dhubri P.S. Case No. 266/2023 under Section 365/376DA/306 of the IPC read with Section 6 of the POCSO Act, 2012 pending in the Court of the learned Additional Sessions Judge-cum-Special Judge, POCSO, Dhubri. 3. It is pertinent to mention herein that the petitioner had approached this Court seeking bail on an earlier occasion also. However, at that time the prayer for bail was rejected, by order dated 26.06.2024, by observing that two of the material witnesses, namely, Mobasira Khatun and Jahangir Alom were not examined at that time. The Special Case No. 180/2023 arose out of Dhubri P.S. Case No. 266/2023 which was Page No.# 3/5 registered on the basis of an FIR lodged by the father of the victim on 30.06.2023. In the FIR, it was alleged that three numbers of the accused persons have kidnapped the daughter of the informant and subjected her to gang rape and thereafter, the daughter of the informant committed suicide by hanging. 4. After completion of the investigation charge sheet was laid against the accused persons, including the present petitioner. 5. The learned counsel for the petitioner has submitted that the petitioner has been languishing behind the bars since 04.07.2023 and there are 40 listed prosecution witnesses in the charge sheet. However, he submits that only nine of the listed witnesses have been examined. He also submits that material witness, namely, Mobasira Khatun has already been examined. He further submits that the petitioner is ready to co- operate in the trial and considering his long detention, he may be allowed to go on bail. 6. On the other hand, the learned Additional Public Prosecutor has vehemently opposed the grant of bail to the petitioner on the ground that the offence of gang rape which is a heinous offence is involved in this case. He further submits that the witnesses, who are examined till date have implicated the present petitioner with the alleged offence. He has also submitted that the material witness Jahangir Alom is yet to be examined and therefore, it may not be proper to release the present petitioner on bail as the possibility of influencing the material witnesses after release on bail may not be excluded. Page No.# 4/5 7. On the other hand, the Amicus Curiae, the learned counsel for the respondent, Ms. M.K. Brown submits that apart from, Jahangir Alom, one Gazi Rahman is also a material witness, as it is in his house the victim was taken and he send the SMS to Jahangir Alom. He submits that Jahangir Alom has been enlisted as prosecution witness No. 13 in the charge sheet. She also submits that before examining the material witnesses in a case of such nature involving heinous offence of gang rape, it may not be proper to release the accused on bail against whom there are incriminating materials. 8. I have considered the submissions made by the learned counsel for both the sides as well as perused the materials available on records. It appears that the earlier bail application of the petitioner was rejected by order dated 26.06.2024, mainly on the ground that the material witnesses, including, Jahangir Alom and Mobasira Khatun were not examined at that time. Though witness Mobasira Khatun has already been examined, however, Jahangir Alom is yet to be examined. Further, it also appears that apart from Jahangir Alom, Gazi Rahman also happens to be one of the material witness, who is also yet to be examined. This Court agrees with the submissions made by the learned Additional Public Prosecutor as well as learned Amicus Curiae that in a case of such nature involving heinous offence of gang rape, it may not be proper to release the petitioner on bail before examination of material witnesses, even though he has been languishing behind the bars for a considerable period of time. 9. In view of the above, the prayer for bail application is rejected at this stage with an observation that the petitioner may approach the Trial Page No.# 5/5 Court after all the material witnesses are examined. Hence, the prayer for bail before the Trial Court, if so advised. JUDGE Comparing Assistant