Page No.# 1/7 GAHC010259652024 2025:GAU-AS:2958 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3764/2024 JONMONI BANIKYA S/O LATE HARIPRASAD BANIKYA R/O VILL- BORIGAON, P.O. BORIGAON P.S. AND DIST. BONGAIGAON, ASSAM PIN-783384 VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:XXX D/O GYANRANJAN OJAH R/O JIBAN KRISHNA PATH HENGRABARI GUWAHATI-78103 Advocate for the Petitioner : MR S DEWRI, Advocate for the Respondent : PP, ASSAM, DR. P AGARWAL, AMICUS CURIAE (R-2) Page No.# 2/7 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 19-03-2025 Heard Mr. S. Dewri, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, Assam for the opposite party No.1. Also heard Dr. P. Agarwal, learned Amicus Curiae for the informant/opposite party No.2. 2. The petitioner, namely, Jonmoni Banikya, son of late Hariprasad Banikya, resident of Village-Borigaon, P.O.-Borigaon, Police Station-Bongaigaon, District-Bongaigaon, Assam has filed this application under Section 483 BNSS, 2023, on 04.12.2024 seeking bail in Sessions (Special) Case No.226/2024 arising out of Dispur P.S. Case No. 875/2023 registered under Section 376 IPC, read with Section 6 of the POCSO Act, in which, he was arrested on 24.07.2024 and is in custody since then. 3. According to the petitioner, in a false allegation lodged by the informant/victim, he has been apprehended and kept in custody. It is stated that he is a resident of Abhayapuri, District-Bongaigaon, whereas, the victim girl is from Guwahati. Further, the FIR was lodged only on 17.05.2023, alleging of committing rape on the informant/victim girl in January, 2022, while she was a minor girl. 4. It is also submitted that in the meanwhile, the statements of the victim girl, her mother and her elder sister as well as the concerned Doctor, who medically examined the victim girl have already been recorded and as such, considering his detention in custody since 24.07.2024, he should be released on bail. 5. As per the FIR dated 17.05.2023 lodged by the informant/victim before the Officer-in- Charge of Dispur Police Station, the accusation against the petitioner, who is maternal cousin of the victim girl, is that, he had raped her in January, 2022 and has continued to do so on many occasions thereafter, when she was a minor. He has committed such act by threatening Page No.# 3/7 her stating that he would leak/publish her nude photos/videos that he had secretly taken of her, if she did not comply with his wishes. Thereby the accused on several occasions harassed and sexually assaulted her by threatening her reputation. As being relative, he used to come and stay in the house of the informant/victim and also visited their house recently and further, harassed her and raped her as the complainant/victim was found alone in her house. As she had no other alternative, she had to lodge the FIR due to continuous harassment on her by the accused persons. In the said FIR dated 17.05.2023, the victim also stated that her mother, on being informed about the accused and his act, she had talked with the parents of the accused during which, the accused informed her mother that he has committed the wrong and wants to marry her, as he love her. In the FIR the complainant/victim clearly stated that when the accused petitioner committed the first rape, she was a minor and now 18 years old and as he is threatening her about publishing her nude photos/videos and wants to damage her reputation, if she does not comply his wish. Because of such continuous harassment, having no other alternative, she had lodged the FIR requesting the authorities to take legal action against the petitioner. The said FIR of the informant/victim dated 17.05.2023 was accordingly, registered as Dispur P.S. Case No. 875/2023 under Section 376 IPC, read with Section 4 of the POCSO Act. 6. By order dated 10.12.2024, the Court called for the records of the relevant case. 7. On perusal of the records, it is seen that the accused petitioner was arrested on 24.07.2024 and was produced before the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati on the same day and is in custody since then. 8. The statement of the victim girl under Section 164 CrPC was recorded by the learned JMFC, Kamrup (Metro), Guwahati on 20.05.2023, during which, the informant/victim girl implicated the petitioner of committing sexual assault on her since January, 2022, during her childhood and continued to do the same by threatening her till the filing of the FIR. 9. Also perused the medical report of the victim girl, who was examined by the Senior Medical Officer, Gauhati Medical College and Hospital on 18.05.2023. 10. From the records of the case, it is seen that during investigation, police seized the Birth Certificate of the victim girl, issued by the Registrar of Birth and Death, Barpeta Page No.# 4/7 Municipal Board on 30.12.2011 indicating her date of birth as 15.02.2005. 11. From the records, it is also seen that after completion of the investigation of the case, police on 29.07.2024 submitted the charge-sheet vide No.492/2024 in said Dispur P.S. Case No. 875/2023 against the petitioner under Section 376 IPC, read with Section 4 of the POCSO Act containing the names of five prosecution witnesses, including the victim girl, her mother and her sister, the concerned Doctor, who medically examined the victim girl and the concerned Investigating Officer of the case. 12. It is further seen that after filing of the charge-sheet in said Dispur P.S. Case No. 875/2023, before the Court of learned Special Judge (POCSO)-cum-Additional Sessions Judge, Kamrup (M), Guwahati, the said Dispur P.S. Case No. 875/2023 was re-registered as Sessions (Special) Case No.226/2024. 13. The Court of learned Special Judge (POCSO)-cum-Additional Sessions Judge, Kamrup (M), Guwahati by order dated 21.08.2024 took cognizance of the offence under Section 376 IPC, read with Section 4 of the POCSO Act against the petitioner in said Sessions (Special) Case No.226/2024. Moreover, the said Trial Court on 28.10.2024 framed charge under Section 376 IPC, read with Section 6 of the POCSO Act, against the petitioner in the said case. 14. In the meanwhile, the Court of learned Special Judge (POCSO)-cum-Additional Sessions Judge, Kamrup (M), Guwahati have recorded the evidences of four prosecution witnesses, including the victim girl, her mother, her elder sister as well as the concerned Doctor, who medically examined her on 06.01.2025, 01.02.2025 and 21.02.2025 respectively and as on date, only one prosecution witness, i.e., the concerned Investigating Officer is to be examined by the concerned Trial Court. 15. Mr. Sarma, learned Additional PP from the evidences of the victim girl, her statement under Section 164 CrPC as well as Section 161 CrPC placed before the Court that the victim has implicated the petitioner of committing rape on her, while she was a child that continued till she attained the age of majority, prior to filing of the FIR in the case. 16. By placing the medical report of the victim girl as well as the evidence of the concerned Doctor, PW-4, Mr. Sarma, learned Addl. PP also submitted that at this stage, the involvement of the petitioner cannot be ruled out. Page No.# 5/7 17. Dr. P. Agarwal, learned Amicus Curiae for the informant/respondent No.2 submitted that it was a continuous wrong committed by the accused petitioner with the victim, since she was a child though the FIR of the case was lodged by her when she attained the age of majority. 18. Learned Amicus Curiae also submitted that charge in the case was framed on 28.10.2024 by the Court of learned Special Judge (POCSO)-cum-Additional Sessions Judge, Kamrup (M), Guwahati under Section 376 IPC, read with Section 6 of the POCSO Act, against the petitioner, considering the act committed by him on the victim girl, while she was a child and not on the date of the lodging of the FIR. 19. It is submitted by Ms. P. Agarwal, learned Amicus Curiae that if the petitioner is released on bail at this stage, when only one prosecution witness is to be examined, there is every possibility that the petitioner may threat the victim girl, though he is a resident of Abhayapuri and the victim girl is pursuing her studies at Guwahati. 20. Considering the fact that since the date of arrest of the petitioner on 24.07.2024 and the prosecution has already adduced the evidence of four of its witnesses, out of five till February, 2025, it cannot be said that the petitioner is in custody for a long period and has been deprived from his constitutional rights for a speedy trial. 21. The Hon’ble Apex Court in the case of X Vs. State of Rajasthan, reported in (2024) INSC 909 = 2024 STPL 12498 SC have held that— “In serious offences like rape, murder, dacioty 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 an accused of the case.” 22. Their Lordships in said X Vs. State of Rajasthan further held that— “15. 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. 16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final Page No.# 6/7 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 release 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 delayed 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 a speedy trial has been infringed.” 23. In the case in hand it is already noticed that after filing the FIR on 17.05.2023, the petitioner was arrested on 24.07.2024 and the charge-sheet in the case was submitted on 29.07.2024. Thereafter, cognizance of the offence against the petitioner was taken on 21.08.2024 and charge under Section 376 IPC, read with Section 6 of the POCSO Act was framed against the accused petitioner on 28.10.2024. 24. Considering the above and the decision of the Hon’ble Apex Court in the Case of X Vs. State of Rajasthan, the Court is of the opinion that considering the date of detention of the petitioner in custody since 24.07.2024 it cannot be said that the right of the accused petitioner to have a speedy trial of the case has been infringed. 25. For the reasons above this Court of the view that considering his detention in custody since 24.07.2024, the petitioner, named above, is not entitled for his bail in said Sessions (Special) Case No.226/2024 arising out of Dispur P.S. Case No. 875/2023, pending before the Court of learned Special Judge (POCSO)-cum-Additional Sessions Judge, Kamrup (Metro), Guwahati. 26. Accordingly, this bail application of the petitioner, Jonmoni Banikya, son of late Hariprasad Banikya in said Sessions (Special) Case No.226/2024 arising out of Dispur P.S. Case No. 875/2023, pending before the Court of learned Special Judge (POCSO)-cum- Additional Sessions Judge, Kamrup (Metro), Guwahati, stands rejected. 27. The assistance rendered by Dr. P. agarwal, learned Amicus Curiae in adjudicating this case is highly solicited. The Gauhati High Court Legal Services Authority shall pay the remuneration to Dr. P. agarwal, learned Amicus Curiae, on raising a bill. 28. It is made clear that the Court of learned Special Judge (POCSO)-cum-Additional Sessions Judge, Kamrup (Metro), Guwahati while adjudicating the said Sessions (Special) Page No.# 7/7 Case No.226/2024 arising out of Dispur P.S. Case No. 875/2023 shall not be influenced with any of the observation or finding made herein above, in this bail application. JUDGE Comparing Assistant