Page No.# 1/5 GAHC010274962024 2025:GAU-AS:2001 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3924/2024 AZADUL ISLAM S/O ABDUL HOQUE RESIDENT OF VILLAGE KHANDAKARPARA, PS HOWLY, DIST BARPETA ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTORS 2:JIYAUR RAHMAN S/O LATE ABUL HUSSAIN RESIDENT OF VILLAGE KHANDAKARPARA PS HOWLY DIST BARPETA ASSAM 78131 Advocate for the Petitioner : MR. M AHMED, MD I H LASKAR Advocate for the Respondent : PP, ASSAM, MR H A AHMED (R-2) BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 25-02-2025 Heard Mr. HRA Choudhury, learned Senior Counsel assisted by Mr. I. H. Laskar, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, Assam for the State, opposite party No.1. Also heard Mr. H. A. Ahmed, learned counsel for the Page No.# 2/5 informant/opposite party No.2. 2. The petitioner, namely, Azadul Islam, son of Abdul Hoque, resident of village- Khandakarpara, Police Station-Howly, District-Barpeta, Assam has filed this application under Section 483 BNSS, 2023, praying for his bail in Special (POCSO) Case No. 142/2024 arising out of Howly Police Station Case No.100/2024 registered under Sections 363/376/506/34 IPC, read with Section 4 of the POCSO Act, 2012, in which he was arrested on 22.07.2024 and is in custody since then. 3. As per the FIR dated 19.07.2024 lodged before Howly Police Station by the informant/opposite party No.2, the case is that his minor daughter, aged about 17 years 7 months was kidnapped by the accused petitioner by inducing her on the pretext of having love affair with her. In the said FIR the informant also stated during the last three years the accused petitioner induced his minor daughter on the ground of having love affair with her and on numbers of occasions took her to his residence and had sexual relation with his said minor daughter and the accused threatened her of dire consequences, if she reveals about such physical relations. In the evening around 06:00 pm on 23.06.2024 while the other family members of the informant were not present in the house, the accused petitioner came to the house of the informant and enticing his minor daughter to marry her, kidnapped her and kept her at his residence and raped her. On the next day, the other accused persons of the case sent the accused petitioner away from his house and physically and mentally tortured his minor daughter. On coming to know that the victim girl is in the house of the accused petitioner, the informant with the help and advice of the senior and respectable persons of the village, requested the family members of the accused petitioner to produce him, which they did not comply and rather, on 12.07.2024 the other accused persons of the case, i.e., the family members of the accused petitioner driven out his minor daughter, the victim girl from the house of the accused petitioner. Said FIR of the informant was accordingly registered as Howly Police Station Case No.100/2024 under Sections 363/376/506/34 IPC, read with Section 4 of the POCSO Act, 2012. 4. The accused petitioner was subsequently taken into custody on 22.07.2024 and was produced before the learned Additional Sessions Judge-cum-Special Judge (POCSO), Barpeta Page No.# 3/5 on the same day. 5. Hence, this bail application by the petitioner on the ground of his detention in custody since 22.07.2024 stating that in the meanwhile, evidence of three prosecution witnesses, including the informant and the victim, have already been recorded. 6. Perused the records of the case that was called for by order dated 20.12.2024. 7. From the records of the case, it is seen that after completion of the investigation, charge-sheet in said Howly P.S. Case No.100/2024 was filed on 31.08.2024 against the petitioner under Sections 363/376/506/34 IPC read with Section 6 of the POCSO Act. Thereafter, said Howly P.S. Case No.100/2024 was re-numbered as Special (POCSO) Case No. 142/2024 before the Court of learned Special Judge (POCSO)-cum-Additional Sessions Judge, Barpeta. Said Trial Court at Barpeta on 27.09.2024 took cognizance of the offences under Sections 363/376 IPC read with Section 6 of the POCSO Act against the petitioner. By order dated 22.10.2024, the said Trial Court, i.e., the Court of learned Special Judge (POCSO)-cum- Additional Sessions Judge, Barpeta framed charge under Sections 366/376 IPC read with Section 6 of the POCSO Act against the petitioner. 8. From the records of the case, it is seen that out of nine prosecution witnesses named in the Chargesheet of the case, the prosecution as on 03.12.2024, adduced evidence of three of its witnesses including the informant and the victim girl and the next date for recording of prosecution witnesses was fixed on 22.01.2025. Learned counsel for the petitioner, on instruction, submitted that since prosecution witnesses were not present on 22.01.2025, the said Special (POCSO) Case No. 142/2024 has now been fixed on 04.03.2025 for recording of evidence of other prosecution witnesses. 9. Perused the medical report of the victim girl, her statement recorded under Section 183 BNSS, 2023 on 24.07.2024 by the learned Sub-Divisional Judicial Magistrate(S), Barpeta as well as her evidence recorded by the Trial Court on 05.11.2024. It is seen that both in her deposition before the learned Special Judge (POCSO), Barpeta as well as in her statement recorded under Section 183 BNSS, 2023 before the learned SDJM(S), Barpeta, the victim girl implicated the petitioner of committing sexual intercourse with her inspite of her objection and resistance. It is also seen that on the date of the incident, i.e., on 23.04.2024 when she Page No.# 4/5 was allegedly kidnapped by the petitioner and had sexual intercourse with her, the victim girl was a minor of 17 years 5 months considering her date of birth as per her School Register as 01.01.2007. 10. It is seen that from the medical report of the victim girl that her medical report showed positive test pertaining to her pregnancy. 11. It is seen from the records of the case that the Head Teacher of the School in which, the petitioner studied who issued the school certificate of minor victim girl; the concerned Doctor, who examined the victim girl as well as the Investigating Officer of the case are yet to depose before the learned Trial Court. 12. 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.” 13. 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.” 14. In the case in hand it is already noticed that after filing the FIR on 19.07.2024, the petitioner was arrested on 22.07.2024 and the charge-sheet in the case was submitted on Page No.# 5/5 31.08.2024. Thereafter cognizance of the offence against the petitioner was taken on 27.09.2024 and charge under Sections 366/376 IPC read with Section 6 of the POCSO Act was framed against the accused petitioner on 22.10.2024. Thereafter, as on 03.12.2024, the prosecution has already examined three of its witnesses out of nine prosecution witnesses named in the chargesheet of the case, and those three prosecution witnesses were duly cross examined by the defence. 15. 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 22.07.2024 it cannot be said that the right of the accused petitioner to have a speedy trial of the case has been infringed. 16. For the reasons above this Court of the view that considering his detention in custody since 22.07.2024, the petitioner, named above, is not entitled for his bail in said Special (POCSO) Case No. 142/2024 arising out of Howly P.S. Case No.100/2024, pending before the Court of learned Special Judge (POCSO)-cum- Additional Sessions Judge, Barpeta. 17. Accordingly, this bail application of the petitioner, Azadul Islam, son of Abdul Hoque in said Special (POCSO) Case No. 142/2024 arising out of Howly Police Station Case No.100/2024, pending before the Court of learned Special Judge (POCSO) -cum- Additional Sessions Judge, Barpeta, stands rejected. JUDGE Comparing Assistant