Page No.# 1/8 GAHC010266342024 2025:GAU-AS:1892 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3849/2024 SOFIQUL ISLAM S/O ABDUL RAHMAN R/O VILL- GOHAINDOLONI, P.O. SONAPUR, P.S. BIHPURIA DIST. LAKHIMPUR, ASSAM PIN-787054. VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:MRS SHARIFA BEGUM W/O MD. NUR ISLAM VILL- NO. 1 BOGOLI P.O. HARMUTY P.S. LALUK DIST. LAKHIMPUR ASSAM PIN- 78416 Advocate for the Petitioner : ALHAJJ I UDDIN, MRS. ROMA ENGTIPI,MR ROBIUL HOQUE,MRS. R MOMTAZ Advocate for the Respondent : PP, ASSAM, MR. M DUTTA (AMICUS CURIAE, R-2) Page No.# 2/8 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 21-02-2025 Heard Mr. A. I. Uddin, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, Assam for the opposite party No.1. Also heard Mr. Mrinmoy Dutta, learned Amicus Curiae, for the informant/opposite party No.2. 2. The petitioner, namely, Sofiqul Islam, son of Abdul Rahman, resident of Village- Gohaindoloni, Post Office-Sonapur, Police Station-Bihpuria, District-Lakhimpur, Assam has filed this application under Section 483 BNSS, 2023, on 10.12.2024 seeking bail in Special (POCSO) Case No. 63/2024 arising out of Laluk Police Station Case No. 72/2024 corresponding to G.R. No.351/2024, registered under Section 366 IPC, read with Section 4 of the POCSO Act, wherein he was arrested on 17.05.2024 and is in custody since then. 3. As per the FIR dated 16.05.2024 lodged by the informant/opposite party No.2 before the Officer-in-Charge of Laluk Police Station, the case is that her daughter had been missing from her home since morning around 04:00 am on 10.05.2024. Later, they came to know that the accused petitioner of Gohaindoloni, Bihpuria had kidnapped her daughter and on 16.05.2024, they caught the accused at Laluk Bazar with her daughter and handed them over to Laluk Police Station. Accordingly, Laluk Police Station Case No. 72/2024 corresponding to G.R. No.351/2024, under Section 366 IPC, read with Section 4 of the POCSO Act was registered. 4. As such, the petitioner has filed this application on 10.12.2024 for his bail in said Special (POCSO) Case No. 63/2024 arising out of Laluk Police Station Case No. 72/2024. 5. Mr. A. I. Uddin, learned counsel for the petitioner submitted that after completion of the investigation, charge-sheet in said Laluk PS Case No. 72/2024 was filed on 31.05.2024 against the petitioner under Section 366 IPC read with Section 4 of the POCSO Act and thereafter, said Laluk PS Case was, re-numbered as Special (POCSO) Case No. 63/2024 before the Court of learned Special Judge (POCSO), Lakhimpur, North Lakhimpur where Page No.# 3/8 charge under Section 366 IPC read with Section 4 of the POCSO Act, was framed against the petitioner on 11.07.2024. 6. It is also submitted by Mr. Uddin, learned counsel for the petitioner that after recording the evidences of PW. No. 1, the informant of the case on 20.08.2024 and PW. No. 2, the victim girl on 27.09.2024, the trial of said Special (POCSO) Case No. 63/2024 did not progress as the prosecution did not adduce any evidence of its witnesses and he is languishing in jail. 7. Placing the provisions of Section 366 IPC Mr. Uddin, learned counsel for the petitioner submitted that both the Section 366 IPC and Section 4 of the POCSO Act cannot go together. 8. Placing the evidence of the informant/PW.1, Mr. Uddin, learned counsel submitted that the informant admitted before the Trial Court the fact that she had obtained the School Certificate of the victim girl for the purpose of NRC in the year 2008 only. On behalf of the petitioner, Mr. Uddin, learned counsel submitted that the victim never went to School. 9. From the evidence of the victim girl, Mr. Uddin, learned counsel for the petitioner placed before the Court that the accused petitioner took the victim girl to the house of her maternal grandmother and then he along with the victim girl were apprehended. Thereafter, they were handed over to police at Laluk Police Station and then only the FIR of the case was lodged. From the evidence of the victim girl, it is also stated by Mr. Uddin, learned counsel that the victim girl had a love affair with the petitioner. 10. Mr. Uddin, learned counsel for the petitioner reiterated that Section 366 IPC and Section 4 of the POCSO Act, cannot go together as Section 366 IPC relates to a woman and Section 4 of the POCSO Act relates to a child. Therefore, framing of any such charge under Section 366 IPC against the petitioner on the basis of relevant materials in the charge-sheet is bad in law. Placing the discrepancies that he has pointed out in the evidence so far recorded by the concerned Trial Court pertaining to the evidence of the informant as well as the victim girl and also considering his detention in custody since 17.05.2024 and since the evidence of the informant as well as the victim have already been recorded, Mr. Uddin, learned counsel submitted that the petitioner should be considered for his bail in said Special (POCSO) Case No. 63/2024 arising out of Laluk P.S. Case No. 72/2024, presently pending before the Court of learned Special Judge (POCSO), Lakhimpur, North Lakhimpur. Page No.# 4/8 11. Mr. B. Sarma, learned Additional Public Prosecutor, Assam submitted that presently the trial of said Special (POCSO) Case No. 63/2024 is going on and that out of eleven numbers of prosecution witnesses, named in the chargesheet of the case, evidences of two prosecution witnesses as on 27.09.2024 have already been recorded including the informant and the victim girl and that evidences of nine more prosecution witnesses are yet to be recorded, including the evidence of the Doctor concerned, who medically examined the victim girl, the Investigating Officer of the case and some other vital witnesses. 12. Mr. Sarma, learned Addl. PP submitted that this is a bail application where the petitioner is seeking bail in Special (POCSO) Case No. 63/2024 and not a criminal petition to consider regarding the framing of charge under Section 366 IPC and Section 4 of the POCSO Act in said Special (POCSO) Case. 13. Mr. M. Dutta, learned Amicus Curiae for the informant/opposite party No.2 submitted that the victim girl might have had an affair with the petitioner but the petitioner could not have taken any advantage of such love affair to engage himself in having sexual relation with the said minor victim girl. Mr. Dutta, placed that the victim girl was less than 17 years at the time of the incident on 10.05.2024 as per her School Certificate. 14. Mr. Dutta, learned Amicus Curiae placed and explained the provisions of Section 366 IPC as well as Section 4 of the POCSO Act. 15. The victim girl in her evidence recorded by the learned Special Judge (POCSO), Lakhimpur, North Lakhimpur clearly indicated that the petitioner had raped her while she was with him at Arunachal Pradesh and after consuming/drinking liquor he also sexually assaulted her. 16. Pointing out the submission regarding the deposition made by the victim girl before the learned Special Judge (POCSO), Mr. Dutta, learned Amicus Curiae placed that that the victim girl only at the police station, came to know that the petitioner is a married person having wife and child. 17. From the said evidence of the victim girl, Mr. Dutta, learned Amicus Curiae placed that this itself clearly indicates that the petitioner, being a married person, induced the victim girl, kidnapped her and took her to Arunachal Pradesh where he had sexual intercourse with her Page No.# 5/8 by taking advantage of their love affair. Mr. Dutta, learned Amicus Curiae stated that the victim girl was a minor of less than 17 years on the date of the incident. 18. Mr. Dutta, learned Amicus Curiae also stated that in Section 10 IPC the word ‘woman’ also consists of a female child and as per the POCSO Act ‘Child’ means a person below 18 years of age. 19. For such reasons, Mr. Dutta, learned Amicus Curiae submitted that even considering his detention since 17.05.2024, the petitioner is not entitled for his bail in said Special (POCSO) Case No. 63/2024 arising out of Laluk P.S. Case No. 72/2024. 20. Mr. Uddin, learned counsel for the petitioner rebutting the submission of the learned Addl. PP as well as learned Amicus Curiae submitted that the victim girl is a major, had a love affair with the petitioner and had willful sexual intercourse with the petitioner. 21. Perused the records of the case that was called for by order dated 17.12.2024. 22. From the records of the case, it is seen that the informant/opposite party No.2 on 12.05.2024 lodged a missing complaint before the Harmoti Police Station pertaining to missing of her minor daughter, i.e. the victim girl. In her complaint before the Harmoti Police Station the informant clearly stated that her minor daughter was 16 years 9 months old and she had been missing since morning around 04:00 am on 10.05.2024 from her residence. The said complaint of the informant was recorded as Harmoti Outpost GD Entry No.238 dated 12.05.2024. 23. After she was recovered by police personnel from Laluk Police Station, the victim girl was medically examined on 17.05.2024 at Lakhimpur Medical College and Hospital, North Lakhimpur. In said Laluk P.S. Case No. 72/2024, Chargesheet was filed on 31.05.2024 and Charge under Section 366 IPC read with Section 4 of the POCSO Act was framed against the petitioner on 11.07.2024. 24. In said Laluk P.S. Case No. 72/2024, the original School Certificate of the victim girl was seized by police on 17.05.2024 that was issued by the Headmaster of East Harmoti Lower Primary School on 13.08.2018, wherein it is specifically stated that as per the Register Book of the said school, the date of birth of the victim girl is 04.08.2009. Page No.# 6/8 25. Section 164 CrPC statement of the victim girl was recorded in said Laluk P.S. Case No. 72/2024 on 18.05.2024 by the learned JMFC, Lakhimpur, North Lakhimpur, which was proved by the victim girl during the evidence as Exhibit-P2/PW-2, in which she stated that on 10.05.2024 she eloped with the petitioner as she was having a love affair with him and since the petitioner promised to marry her. She also deposed that while they were at Arunachal Pradesh for about 7 days, the petitioner had sexual intercourse with her and after staying at Arunachal for seven days in a hotel, they came down to Dharmapur to the house of her maternal grandmother and when she and the petitioner were returning back from her maternal grandmother’s house, both of them were apprehended by police from Laluk Police Station and she was kept in a hostel. 26. From the evidence of the victim girl recorded by the learned Special Judge (POCSO) on 27.09.2024 as well as in her statement recorded under Section 164 CrPC by the learned JMFC, Lakhimpur, North Lakhimpur on 18.05.2024, it is seen that the victim girl implicated the petitioner of having sexual intercourse with her while both of them stayed together in a hotel at Arunachal Pradesh from 10.05.2024. 27. From the FIR of the case relating to said Laluk P.S. Case No. 72/2024 dated 16.05.2024 and forwarding report of the petitioner, he was found to be of 27 years old on the date of the incident on 10.05.2024, whereas, the victim girl in her statement before the learned JMFC, Lakhimpur, North Lakhimpur under Section 164 CrPC as well as in her deposition before the Court of learned Special Judge (POCSO), Lakhimpur, North Lakhimpur stated that she was of 17 years old. 28. In the missing complaint lodged before the Harmoti Outpost on 12.05.2024 by the mother of the victim girl, i.e., the informant it was clearly stated that on 10.05.2024 the victim girl was 16 years 9 months old. 29. The original School Certificate seized by police in the case issued on 13.08.2018 also indicated that on the date of the incident on 10.05.2024, the victim girl was 16 years 9 months old. 30 Section 10 of the IPC defines the word ‘woman’ specifying that ‘woman’ denotes a female human being of any age. Page No.# 7/8 31. Reading together the provisions of Section 366 IPC as well as Sections 3 and 4 of the POCSO Act and considering the depositions of the victim girl, at this stage, it cannot be denied that the victim girl was not a ‘child’ on the date of the incident on 10.05.2024 as defined under the POCSO Act. 32. 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. 33. 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 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.” 34. In the case in hand the trial of the case has already commenced and recording of evidence of prosecution witnesses are going on. Moreover, considering the date of submission of charge sheet in the case on 31.05.2024, Charge against the petitioner being framed on 11.07.2024, and recording of evidence of prosecution witnesses being commenced on 20.08.2024, it cannot be said that the right of the accused petitioner to have a speedy trial has been infringed since he in under detention since 17.05.2024. 35. For the above reasons, the Court is of the view that bail of the petitioner, named Page No.# 8/8 above, in Special (POCSO) Case No. 63/2024 arising out of Laluk Police Station Case No. 72/2024, pending before the Court of learned Special Judge (POCSO), Lakhimpur, North Lakhimpur, cannot be considered. 36. Accordingly, this bail application of the petitioner, Sofiqul Islam, son of Abdul Rahman, in said Special (POCSO) Case No. 63/2024 arising out of Laluk Police Station Case No. 72/2024 corresponding to G.R. No.351/2024, pending before the Court of learned Special Judge (POCSO), Lakhimpur, North Lakhimpur, stands rejected. 37. It is made clear that the Court of learned Special Judge (POCSO), Lakhimpur, North Lakhimpur while adjudicating the said Special (POCSO) Case No. 63/2024 arising out of Laluk Police Station Case No. 72/2024 shall not be influenced with any of the observation or finding made herein above, in this bail application. 38. The assistance rendered by Mr. Mrinmoy Dutta, learned Amicus Curiae in adjudicating this case is highly solicited. The Gauhati High Court Legal Services Authority shall pay the remuneration to Mr. Mrinmoy Dutta, learned Amicus Curiae, on raising a bill. JUDGE Comparing Assistant