Page No.# 1/5 GAHC010240572024 2025:GAU-AS:145 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3509/2024 DULAL RAUT @ DULAL ROUTH S/O LATE JIBAN RAUT R/O VILL- GARBHANGA, P.O. RAMPUR P.S. BOXIRHAT, DIST. COOCH BIHAR, WEST BENGAL. VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:SMTI PRIYANKA DEY W/O SRI BISU DEY R/O LALGANESH PARAGATI NAGAR HOUSE NO. 05 CARE OF CHANDAN DEY P.S. FATASIL AMBARI DIST. KAMRUP (M) ASSAM PHONE NO. 8134062894 Advocate for the Petitioner : MR P DAS, MR ANAND SHARMA,MR Y KOTHARI,MS N BARUAH,MR P PRAWAR,MR A SARMA Advocate for the Respondent : PP, ASSAM, DR. P AGARWAL, AMICUS CURIAE (R-2) BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK 06/01/2025 Heard Mr. P Das, learned counsel for the petitioner and Mr. B Sarma, learned Additional Public Prosecutor, Assam for the State respondent No. 1. Also heard Dr. Pooja Agarwal, learned Amicus Page No.# 2/5 Curiae for the informant/ respondent No. 2. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Dulal Raut @ Dulal Routh, son of Late Jiban Raut, resident of Village-Garbhanga, P.S. Boxihat, District-Cooch Bihar, West Bengal, seeking bail in Sessions Special (POCSO) Case No. 219/2024 arising out of Fatasil Ambari P.S. Case No. 185/2024 under Sections 354A/376Ab IPC read with Sections 6/10 of POCSO Act corresponding to G.R. No. 3681/2024, wherein he was arrested on 24.06.2024 and is in custody since then. 3. By order dated 19.11.2024, the Court called for the records of said Sessions Special (POCSO) Case No. 219/2024 from the Court of learned Special Judge (POCSO), Kamrup (Metro), Guwahati. 4. On perusal of the case records, it is seen that after completion of investigation of the case, police submitted the charge-sheet on 30.07.2024. Thereafter, on 07.09.2024, charge under Sections 376AB/354 IPC read with Sections 6/10 of the POCSO Act, 2012 was framed against the petitioner. 5. It is seen from the case records that up-to 27.11.2024, out of 8 prosecution witnesses named in the charge-sheet, evidence of 4 prosecution witnesses have already been recorded who were thoroughly cross-examined by the defence including that of the informant as well as the victim girl. 6. The petitioner was arrested on 24.06.2024 in said Fatasil Ambari P.S. Case No. 185/2024 and also produced before the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati on 24.06.2024 itself and since then, he is in custody. As such, the petitioner contended that he should be considered for bail in said Sessions Special (POCSO) Case No. 219/2024 arising out of Fatasil Ambari P.S. Case No. 185/2024. 7. It is also contended on behalf of the petitioner that the alleged incident took place during the period of lockdown between 2019 to 2021 and the FIR of the case was lodged on 24.06.2024, much after the incident and the petitioner is no way connected with the case and simply implicated in the case by false and fabricated allegation. 8. Mr. Das, learned counsel for the petitioner by placing the order dated 18.10.2024 passed by the learned Special Judge (POCSO), Kamrup (Metro), Guwahati, in Sessions Special (POCSO) Case No. 219/2024 submitted that the informant has not filed any objection to the bail prayer of the accused and that he shall comply with any terms and conditions that may be imposed upon him by the Court on releasing him on bail in said Sessions Special (POCSO) Case No. 219/2024 arising out of Fatasil Page No.# 3/5 Ambari P.S. Case No. 185/2024. 9. Mr. Sarma, learned Additional Public Prosecutor, Assam placed the medical report of the minor victim girl as well as her statement recorded under Section 164 Cr.P.C. by the learned Judicial Magistrate, First Class, Kamrup (Metro), Guwahati on 24.06.2024. From her statement made before the learned JMFC, Kamrup (Metro), Guwahati under Section 164 Cr.P.C. as well as her deposition made before the learned Special Judge (POCSO), Kamrup (Metro), Guwahati, Mr. Sarma submitted that it was a continuous crime committed by the petitioner. 10. Mr. Sarma, learned Additional Public Prosecutor, Assam further submitted that though evidence of 4 of the prosecution witnesses have been examined so far there are 4 more prosecution witnesses, whose evidence are yet to be recorded including that of the Medical Officer, who examined the minor victim girl of the case. 11. By placing reliance on a decision of the Hon’ble Supreme Court in the case of X Vs. State of Rajasthan and Another in Special Leave Petition (Criminal) No. 13378/2024, decided on 27.11.2024, Mr. Sarma, learned Additional Public Prosecutor, Assam submitted that Their Lordship in the said decision of the Hon’ble Apex Court have held that – Ordinarily in serious offences like rape, murder, dacoity etc., 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 the accused. 12. The Hon’ble Apex Court in the said order dated 27.11.2024, noted above, also observed 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. The Hon’ble Apex Court in the said order dated 27.11.2024 specifically held that such view is not a correct practice that the Courts below should adopt. It is held that 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 released 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 delay 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 Page No.# 4/5 a speedy trial has been infringed. 13. Mr. Sarma, learned Additional Public Prosecutor, Assam submitted that the petitioner is in custody since 24.06.2024 and the trial of the case is very much in progress as out of 8 prosecution witnesses, evidence of 4 prosecution witnesses have already been examined by the learned Special Judge (POCSO), Kamrup (Metro), Guwahati. 14. Mr. Sarma, learned Additional Public Prosecutor, Assam submitted that if there are any minor discrepancy in the statement of the witnesses in their evidence those should not be considered while considering the bail as some more prosecution witnesses are yet to be examined in the case. 15. Dr. Agarwal, learned Amicus Curiae for the informant submitted that the informant may not have filed any objection with regard to the bail prayer of the petitioner, but the crime committed to a child under the POCSO Act is a heinous crime and it is a crime against the State not against the particular individual, therefore, even if the informant does not have any objection regarding the bail of the accused person of the case, considering the gravity of the offence as heinous that too committing sexual offence on a minor victim girl, the bail prayer of the petitioner should not be considered. 16. Dr. Agarwal, learned Amicus Curiae for the informant also submitted that the petitioner himself in the bail application admitted that he is a permanent resident of Garbhanga, Rampur under Boxihat Police Station of District-Cooch Bihar, State-West Bengal. As such, if during such recording of evidence of the other prosecution witnesses, he is released on bail, there is all probability that he will not appear before the Court again and the trial will remain incomplete. 17. From the statement of the victim recorded under Section 164 Cr.P.C. as well as her evidence recorded by the learned Special Judge (POCSO), Kamrup (Metro), Guwahati, Dr. Agarwal submitted that the victim clearly stated that the accused sexually assaulted her continuously till the last few days of reporting of the incident to her mother and lodging of the FIR of the case. 18. Considered the statement of the minor victim girl recorded under Section 164 Cr.P.C. by the learned JMFC, Kamrup (Metro), Guwahati on 24.06.2024 as well as her evidence recorded by the learned Special Judge (POCSO), Kamrup (Metro), Guwahati, in said Sessions Special (POCSO) Case No. 219/2024 and her cross-examination by the defence. Also considered the decision of the Hon’ble Apex Court dated 27.11.2024, placed by Mr. Sarma, learned Additional Public Prosecutor, Assam, noted above. Page No.# 5/5 19. It is seen that the minor victim girl in her statement recorded under Section 164 Cr.P.C. before the learned JMFC, Kamrup (Metro), Guwahati on 24.06.2024 as well as in her evidence recorded before the learned Special Judge (POCSO), Kamrup (Metro), Guwahati categorically stated that the petitioner since the time of lockdown used to sexually assault her by offering her chocolates and money and threatening her of dire consequences, if she discloses such acts committed by him to her parents or anyone else. Both in her statements made before the learned Magistrate under Section 164 Cr.P.C. as well as in her evidence before the learned Special Judge, the minor victim girl indicated that once the petitioner had forceful sexual intercourse with her. In that regard, Mr. Sarma, learned Additional Public Prosecutor, from the medical report of the victim girl pointed out the same. 20. Since the trial of the case is presently going on, this Court will not discuss much about the evidence so that it does not have any impact on the decision of the Trial Court, which is pending in the Trial stage. However, considering the evidence of the prosecution witnesses including that of the minor victim girl as well as her medical report and as been held by the Hon’ble Apex Court in the case of X Vs. State of Rajasthan (supra), decided on 27.11.2024, the Court is of the opinion that the petitioner is not entitled for his bail at this stage, as there are 4 more prosecution witnesses, whose evidences are yet to be recorded. 21. Moreover, the petitioner has also failed to establish anything before the Court that there was inordinate delay in recording the evidence of the prosecution witnesses considering the fact that the petitioner was arrested in the case only on 24.06.2024 and till 27.11.2024, the learned Special Court has already recorded the evidence of 4 prosecution witnesses. 22. For the reasons above, this bail application of the petitioner, Dulal Raut @ Dulal Routh, in said Sessions Special (POCSO) Case No. 219/2024 arising out of Fatasil Ambari P.S. Case No. 185/2024, being devoid of merit, stands dismissed. JUDGE Comparing Assistant