Page No.# 1/5 GAHC010262892024 2025:GAU-AS:1713 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3811/2024 CHARAN MANDAL @ MONU MANDAL S/O CHANMOHAN MANDAL VILL- BURGAON, BORDUBA P.S. MAYONG DIST. MORIGAON, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP BY THE PP, ASSAM 2:NIKHIL BISWAS S/O MOHANBASHI BISWAS VILL- KAURIHAGI P.S. MAYONG DIST. MORIGAON ASSAM PIN-782411 M. NO. 709909937 Advocate for the Petitioner : MR. N J DUTTA, F KHATUN,MR A ALAM,MR. A A MONDAL Advocate for the Respondent : PP, ASSAM, MR. SURAJIT DAS, (AMICUS CURIAE R2) Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 18.02.2025 Heard Mr. N J Dutta, learned counsel for the petitioner and Mr. K K Parashar, learned Additional Public Prosecutor, Assam for the State. Also heard Mr. Surajit Das, learned Amicus Curiae appearing for the respondent No.2/informant of the case. 2. The petitioner, namely, Sri Charan Mandal @ Monu Mandal, son of Chanmohan Mandal, resident of village-Buragaon, Borduba, P.S.-Mayong, District-Morigaon, a charge-sheeted accused under Section 365 IPC read with Section 6 of the POCSO Act has filed this application on 06.12.2024 under Section 483 BNSS, 2023, praying for his bail in POCSO Case No. 88/2024 arising out of Mayong Police Station Case No. 55/2024 corresponding to G.R. No. 645/2024, in which he was arrested on 28.05.2024 and in custody since then. 3. The learned POCSO Court by order dated 02.07.2024 framed charges under Sections 366/376(3) IPC read with Section 6 of the POCSO Act in said POCSO Case No. 88/2024 against the petitioner. 4. Mr. N J Dutta, learned counsel for the petitioner has submitted that out of ten prosecution witnesses named in the charge-sheet, evidence of five prosecution witnesses have already been recorded by the concerned Trial Court and the next date of the case for recording of evidence of prosecution witness is 05.03.2025. 5. From the medical report of the victim girl, more particularly, the X-Ray report annexed to this petition, Mr. Dutta, learned counsel for the petitioner placed that as on 27.05.2024, the age of the victim girl was between 16-19 years. 6. Mr. Dutta, learned counsel has also submitted that the victim girl had a love affair with the accused petitioner. Placing the evidence of the victim girl, PW-1, Mr. Dutta, learned counsel has submitted that the victim girl did not object to having any sexual relation with the accused petitioner on the date of the incident. 7. From her cross-examination, Mr. Dutta placed that the victim girl clearly deposed that the Page No.# 3/5 accused petitioner neither forced her to go with him on the date of the incident nor forced her to have sexual relation with him. 8. From the said cross-examination/evidence of the victim girl, Mr. Dutta, learned counsel for the petitioner placed that the victim girl rather wants the accused petitioner to be released from the case. Mr. Dutta further stated that the date of birth of the victim girl though stated to be of 05.12.2009, but her Birth Certificate was issued in the year 2011. 9. Considering that the accused petitioner is in custody since 28.05.2024 and as in the meanwhile, evidence of five prosecution witnesses have already been recorded by the learned POCSO Court including that of the victim girl as well as the informant of the case, Mr. Dutta, learned counsel for the petitioner has submitted that the accused petitioner should be released on bail. 10. Mr. S Das, learned Amicus Curiae appearing on behalf of the respondent No. 2/informant of the case has submitted that since the evidence of the victim girl as well as that of the informant have already been recorded by the learned POCSO Court, considering his detention since 28.305.2024, the petitioner may be considered for his release on bail. 11. Mr. K K Parashar, learned Additional Public Prosecutor, Assam has submitted that the Birth Certificate of the victim girl clearly indicates her date of birth as 05.12.2009 and as such, on the date of the incident on 21.05.2024, the victim girl was just 14 years 5 months old and was a minor. 12. Mr. K K Parashar, learned APP, Assam placed before the Court that the accused petitioner was of more than 21 years of age on the date of the incident, whereas the victim girl was a minor of 14 years 5 months and it is proved that the accused petitioner had sexual relation with the minor victim girl on the date of the incident, though she might have a love affair with the accused petitioner. 13. From the evidence of the victim girl, it can be seen that while she was on her way to tuition in the afternoon on the date of the incident, the accused petitioner called her asking her to meet him at a specific place and instead of attending her tuition, on getting the said phone call from the petitioner, the minor victim girl went to meet the accused petitioner to the concerned place and on his request, she accompanied him to Jhargaon. From Jhargaon the accused petitioner took the victim girl to Jagiroad and from Jagiroad to Guwahati. As she was Page No.# 4/5 having a love affair with the petitioner, the minor victim girl went with the accused petitioner and stayed with him on the night of the incident and returned on the next day and on the night of the incident, both of them had sexual relation. 14. Admittedly, the petitioner was of more than 21 years on the date of the incident and as per the Birth Certificate issued in 2011, the minor victim girl on the date of the incident was of 14 years 5 months. 15. It is well settled that a consent given by a minor is not a consent. Taking advantage of having a love affair, the petitioner who was of more than 21 years of age on the date of the incident could not have any sexual relation with the victim girl, who was a minor of 14 years 5 months of age. 16. Objects and reasons of the POCSO Act clearly indicates as to why the said Act has been brought into force, i.e, only to protect the children from sexual offences who are below the age of 18 years. 17. It is seen that out of the 10 prosecution witnesses named in the charge-sheet, evidence of the concerned doctor who medically examined the victim girl as well as the evidence of the concerned Investigating Officer of the case are yet to be recorded. 18. The Hon’ble Apex Court in a catena of decisions have held that in serious offences like rape, murder, dacoity, once trial commences and the prosecution starts examining its witnesses, the Court, be it Trial Court or High Court, should be loath in entertaining the bail application of the accused and 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 release of an accused on bail on the ground that right to the accused to have speedy trial has been infringed. 19. In the case in hand, as noted above, the accused petitioner was taken into custody on 28.05.2024, charge-sheet in the case was filed on 31.05.2024, charge under Sections 366/376(3) IPC read with Section 6 of the POCSO Act was framed on 02.07.2024 and till date, evidence of five of the prosecution witnesses have already been recorded by the learned POCSO Court and the next date of recording of evidence of prosecution witnesses is fixed on 05.03.2025. 20. Considering the above, the Court is of the opinion that the petitioner, namely, Sri Charan Mandal @ Monu Mandal, son of Chanmohan Mandal, is not entitled for his release on bail in Page No.# 5/5 said POCSO Case No. 88/2024 arising out of Mayong P.S. Case No. 55/2024 on the ground of his detention since 28.05.2024. 21. Accordingly, this bail application of the petitioner, named above, in said POCSO Case No. 88/2024, stands rejected. 22. The Gauhati Legal Services Committee shall pay the remuneration to Mr. Surajit Das, learned Amicus Curiae appearing for the respondent No.2/informant of the case, on raising a bill by him. JUDGE Comparing Assistant