Page No.# 1/3 GAHC010275682024 2025:GAU-AS:3886 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/3402/2024 KAMALA KANTA BARMAN S/O RAMENDRA BARMAN, R/O VILL- HALLAGURI P.S. BONGAIGAON, DIST. BONGAIGAON, ASSAM PIN-783372 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR G CHAMUAH, Advocate for the Respondent : PP, ASSAM, MR. S C BISWAS(INFORMANT),MR. P S BISWAS (INFORMANT),MS A BORAH(INFORMANT) BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 02-04-2025 Heard Mr. G. Chamuah, the learned counsel for the petitioner and also heard Mr. S.C. Biswas, the learned counsel for respondent/informant and Mr. Page No.# 2/3 R.J. Baruah, the learned Additional Public Prosecutor appearing on behalf of State respondent. 2. This is an application filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 for granting pre-arrest bail to the petitioner in connection with Bongaigaon P.S. Case No. 392/2024 under Section 137(2) of the BNS 2023. 3. Case Diary received. Perused the same. Heard both sides. 4. Mr. Chamuah, the learned counsel for the petitioner submitted in this regard that in pursuant to interim pre-arrest bail dated 20.12.2024 he appeared before the Investigating Officer and cooperated with the investigation and his statement is also recorded u/s 183 Cr.PC. He further submitted that he is still ready and willing to cooperate with the Investigating Officer in further investigation of the case. Mr. Chamuah further submitted that he was under the impression that the birth of the victim girl was 14.11.2004 which was written in the vernacular language but presently it has come to the knowledge of the Court that the victim was born in 14.11.2008. He further submitted that there was no question of kidnapping the victim girl and she has eloped with him out of love affair. He is still ready to accept when she attains her majority. 5. Mr. Baruah, the learned Additional Public Prosecutor submitted in this regard that admittedly the girl was a minor at the time of incident and her consent cannot be accepted as a legal consent and even if it is considered that she eloped with the boy out of love affairs and stayed together with the accused. Further he submitted that though initially the case was registered u/s 137 sub-section 2 BNS but in the investigation it has come to the notice that Page No.# 3/3 there was physical relationship between the parties and accordingly Section 6 of the POCSO is also added. Mr. Baruah accordingly raised objection for anticipatory bail. 6. Mr. Biswas, the learned counsel appearing for respondent no. 2 also submitted in this regard that the consent of the minor cannot be considered as a valid consent and at the same time he also produced all the documents, certificates etc. which also show that the victim was a minor at the time of incident. Mr. Biswas also accordingly raised objection and submitted that it is not at all a fit case to consider the pre-arrest bail to the present petitioner. 7. Considering the entire facts and circumstances of the case, statement made by the victim u/s 183 Cr.PC, it is seen that she has not brought any allegation against the present petitioner though it is admitted that she went with the accused at Shillong and had physical relationship with him. It is also a fact that a consent of a minor cannot be considered as a valid consent and in the present case it is admitted fact that the victim was a minor at the time of incident. 8. However, considering the materials in the Case Diary, the statement of the victim girl u/s 183 Cr.PC, I find it a fit case to extent the privilege of pre-arrest bail to the present accused/petitioner and custodial interrogation may not be necessary in the instant case and accordingly the interim order dated 20.12.2024 is hereby made absolute and extended the privilege of pre-arrest bail to the accused/petitioner in terms of the above conditions. JUDGE Comparing Assistant