Page No.# 1/6 GAHC010200042024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2910/2024 MOKTADUL RAHMAN S/O- MAJIBAR RAHMAN, VILLAGE- CHAWGURI, P.S- BAGRIBARI, DIST- KOKRAJHAR, ASSAM. VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR . 2:NUR BHANU BEGUM W/O- LT- HAKIM ALI VILLAGE- SILBARI (NADAGAON ) P.S- BAGRIBARI DIST- KOKRAJHAR ASSAM. PIN NO. 783337 Advocate for the Petitioner : MR. J AHMED, H G DAISY,MS A HUSSAIN,MR. A A SIKDAR,R BEGUM Advocate for the Respondent : PP, ASSAM, MR. S. SUR (R-2) Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER Date : 28.01.2025 Heard Mr. J. Ahmed, learned counsel for the accused-petitioner; Mr. K.K. Das, learned Additional Public Prosecutor for the State of Assam for the respondent no. 1 and Mr. S. Sur, learned counsel for the respondent no. 2- informant. 2. By this application under Section 483, Bharatiya Nagarik Suraksha Sanhita, 2023 [BNSS], the accused-petitioner viz. Moktadul Rahman has prayed for his release on bail in connection with Special [POCSO] Case no. 155/2024, arising out of Bogribari Police Station Case no. 51/2024, presently pending before the Court of learned Special Judge [POCSO], Kokrajhar [‘the Special Court’, for short]. 3. The First Information Report [FIR] came to be lodged by the mother of the alleged victim on 03.06.2024 before the Officer In-Charge, Bogribari Police Station reporting an incident, which occurred on 02.06.2024. As per the FIR, at about 08-00 p.m. on 02.06.2024, the accused-petitioner criminally trespassed into the house of the informant and committed forceful sexual assault on her daughter, that is, the victim, aged about 15 years. It has been alleged that when the victim was studying in her room, the accused-petitioner allegedly trespassing into the house, took her forcefully out of the house and committed forceful assault on her outside. On the basis of the said FIR, the Officer In- Charge, Bogribari Police Station registered a crime case, Bogribari Police Station Page No.# 3/6 Case no. 51/2024 for the offences under Sections 447/448/376/506, Indian Penal Code [IPC] read with Section 4 of the Protection of Children from Sexual Offences [POCSO] Act, 2012 on 03.06.2024 itself. 4. After registration of the case, the accused-petitioner was arrested and on 04.06.2024, he was forwarded to the Court of learned Chief Judicial Magistrate, Kokrajhar by the I.O. seeking his remand in custody. On being so produced, the learned Chief Judicial Magistrate, Kokrajhar remanded the accused-petitioner to custody by an Order dated 04.06.2024. Since 04.06.2024, the accused- petitioner is in custody. 5. The investigation was, therefore, carried out into the allegations of the FIR. The Investigating Officer [I.O.] of the case after completion of investigation, submitted a charge-sheet under Section 173[2], CrPC vide Charge-Sheet no. 44/2024 on 30.06.2024 finding a prima facie case against the accused-petitioner for commission of offences under Sections 448/376[3]/506, IPC read with Section 6 of the POCSO Act, 2012. During the course of investigation, the I.O. of the case seized the Birth Certificate of the victim and also got the victim medically examined. The statements of the victim were also recorded under Section 161, CrPC and Section 164, CrPC. One Medical Examination Report was also submitted with the charge-sheet. 6. On submission of the Charge-Sheet, the learned Special Court registered the same as Special [POCSO] Case no. 155/2024. The date, 31.08.2024 was fixed for consideration and framing of charge. After hearing the learned Special Public Prosecutor and the learned counsel for the defence and after perusal of Page No.# 4/6 the materials available on record, the learned Special Court, by its Order dated 31.08.2024, had framed a charge under Section 6 of the POCSO Act against the accused-petitioner. After framing of charge, the charge was read over and explained to the accused to which the accused pleaded not guilty and claimed to be tried. The trial of the case had, thereafter, proceeded to the stage of examination of the prosecution witnesses. 7. In the Charge-Sheet, the I.O. of the case has listed 6 [six] persons as prosecution witnesses to bring home the charge under Section 6 of the POCSO Act against the accused-petitioner in the trial. 8. By Order dated 07.01.2025, this Court had called for scanned copies of the case records of Special [POCSO] Case no. 155/2024. The scanned copies of the case records have been received thereafter. 9. Mr. Ahmed, learned counsel appearing for the accused-petitioner has submitted that as the accused-petitioner is in custody since 04.06.2024, and there is no possibility on the part of the accused to temper with evidence or hamper the process of trial, even if he is released on bail at this stage. In such view of the matter, the accused-petitioner may be released on bail on appropriate terms and conditions. 10. On the other hand, Mr. Das, learned Additional Public Prosecutor objecting to the prayer for bail has submitted that as per the statements of the victim, recorded under Section 161, CrPC and Section 164, CrPC, the victim was intimidated by the accused-petitioner prior to the incident and there were Page No.# 5/6 repeated commission of forceful sexual assault. The victim is apparently a minor and her evidence is yet to be recorded in the ensuing trial. He has contended that in the event the accused-petitioner is released on bail at this stage of trial, there is every possibility on the part of the accused-petitioner to intimidate the victim, which might not result in a fair trial. 11. I have heard the learned counsel for the parties and have perused the materials available in the case records of Special [POCSO] Case no. 155/2024. 12. During the course of investigation, the statements of the victim was recorded under Section 161, CrPC and Section 164, CrPC. The version of the victim in both the statements are found to be consistent with the version in the FIR. In the course of investigation, the I.O. of the case had seized the Birth Certificate of the victim and as per the said Birth Certificate, the date of birth of the victim is 01.01.2009. Prima facie, on the date of commission of the offence on 02.06.2024, the victim of was aged less than 16 years. The offence under Section 6, POCSO Act is an offence involving statutory presumption of guilt and as such, the general presumption of innocence or the accused is not applicable in such a case, where there is contrary statutory presumption of his guilt. In the course of trial, only the evidence of the informant, that is, the mother of the victim has been recorded till date. The evidence of the victim is yet to be recorded in the trial. One of the prime considerations of fair trial is that the witnesses must feel protected for free, frank and fearless deposition. Evidently, the victim, as on date, still a child of below 18 years. As the recording of deposition of the victim has not yet been over and considering the factors that as per the statement of the victim, the accused-petitioner had allegedly Page No.# 6/6 committed aggravated sexual assault on the victim on a number of occasions prior to 03.06.2024 also, that is, prior to the incident of 02.06.2024, this Court is of the considered view that the prayer for bail of the accused-petitioner, at this stage the trial, cannot be allowed as the victim is yet to be examined as the witness in the trial. In such view of the matter, I find no merit in this bail application. Consequently, the same stands dismissed. JUDGE Comparing Assistant