Page No.# 1/4 GAHC010244862024 2025:GAU-AS:151 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/3131/2024 FAKARUDDIN MONDAL S/O LATE MANU MANDAL R/O VILL- BANGLAPARA,P.S. ABHAYAPURI DIST. BONGAIGAON, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REPRESENTED BY THE PP, ASSAM 2:ALIMUDDIN S/O MAHAR ALI VILL- GONBINNA P.S. ABHAYAPURI DIST. BONGAIGAON ASSA Advocate for the Petitioner : MR A K AZAD, MR N JAMAL,MR. I HUSSAIN Advocate for the Respondent : PP, ASSAM, MR M AHMED (R2),MS D DUTTA (R2),MR. H A LASKAR (R2),MR. A S TAPADER (R2),MR. S B LASKAR (R2) Page No.# 2/4 BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 06.01.2025 Heard Mr. A K Azad, learned counsel for the petitioner and Mr. M P Goswami, learned Additional Public Prosecutor, Assam for the State. Also heard Mr. A S Tapader, learned counsel for the informant/opposite party No. 2. 2. The petitioner, namely, Fakaruddin Mondal, son of late Manu Mandal, resident of village Banglapara, P.S. Abhayapuri, District-Bongaigaon, has filed this pre- arrest bail application under Section 482 BNSS, 2023, apprehending his arrest in Special (POCSO) Case No. 37(A)/2024, arising out of Abhayapuri Police Station Case No. 552/2023 registered under Sections 376/315 of the IPC read with Section 4 of the POCSO Act, 2012, corresponding to NGR No. 933/2023. 3. By order dated 02.12.2024, the Court called for the records of Special (POCSO) Case No. 37(A)/2024 along with the copy of the case diary of Abhayapuri P.S. Case No. 552/2023. 4. The petitioner herein is a charge-sheeted accused in said Special (POCSO) Case No. 37(A)/2024. After receipt of the charge-sheet in the case, the learned Special Judge (POCSO), North Salmara, Abhayapuri on 01.04.2024, took cognizance of the offences under Sections 376/315 of the IPC read with Section 4 of the POCSO Act, 2012 in said Special (POCSO) Case No. 37(A)/2024 and issued summons to the accused petitioner for his appearance in the case, who evaded arrest during investigation of said Abhayapuri P.S. Case No. 552/2023. 5. It is seen that as the petitioner, in spite of receipt of summons in said Special (POCSO) Case No. 37(A)/2024 did not appear before the Special Court, therefore, the learned Special Judge (POCSO), North Salmara, Abhayapuri, by order dated 06.06.2024 issued Bailable Warrant of Arrest (BWA) against the petitioner for his appearance in the Page No.# 3/4 said case, fixing the matter on 03.08.2024. As on 03.08.2024 and on 25.10.2024, the petitioner did not appear before the learned Special Judge (POCSO) in said case therefore, the said learned Special Judge passed similar order on 03.08.2024 and 25.10.2024, respectively, in said Special (POCSO) Case No. 37(A)/2024. However, in order dated 25.10.2024 learned Special Judge (POCSO), North Salmara, Abhayapuri fixed the said matter on 07.01.2025, i.e., tomorrow, for appearance of the petitioner. 6. From the case record that was called for by the Court vide order dated 02.12.2024 it is seen that the date of birth of the victim girl as per her Birth Certificate is 15.08.2009 and as per the FIR dated 20.12.2023, the incident occurred three months prior to the filing of the said FIR, which is in and around August/September 2023. As per the statement of the minor victim girl recorded under Section 164 Cr.P.C. by the learned Judicial Magistrate First Class, North Salmara, Abhayapuri on 22.12.2023, the incident occurred three months prior to the recording of her said statement. As such, it is seen that the victim was just above 14 years of age at the time of incident of committing the alleged crime of forceful sexual intercourse by the petitioner with the minor victim girl. 7. Section 438 Cr.P.C. relates to “Direction for grant of bail to person apprehending arrest” and Section 438(4) Cr.P.C. provides that – Nothing in this Section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of Section 376 or Section 376AB or Section 376DA or Section 376DA of the Indian Penal Code (45 of 1860). 8. Section 438(4) of Cr.P.C. is equivalent to Section 482(4) of BNSS, 2023. 9. Section 482 of the BNSS, 2023 provides for “Direction for grant of bail to person apprehending arrest” and Section 482(4) BNSS stipulates that – Nothing in this Section shall apply to any case involving the arrest of any person on accusation of having committed an offence under Section 65 and Sub-Section (2) of Section 70 of the Bharatiya Nyaya Sanhita, 2023. 10. Section 376 IPC is equivalent to Section 65 of BNS, 2023. Page No.# 4/4 11. In the case in hand, the victim girl was just above 14 years of age, i.e., much less than 16 years of age, when the petitioner allegedly committed forceful sexual intercourse with her during August/September 2023. 12. As such, this pre-arrest bail application of the petitioner, namely, Fakaruddin Mondal, son of late Manu Mandal, in said Special (POCSO) Case No. 37(A)/2024, arising out of Abhayapuri Police Station Case No. 552/2023, presently pending before the Court of learned Special Judge (POCSO), North Salmara, Abhayapuri, being not maintainable under the law, stands dismissed. JUDGE Comparing Assistant