Page No.# 1/9 GAHC040006182025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : BA/40/2025 Gani Nath Son of Janak Saha, resident of Doimukh near Welcome Gate, PO and PS Doimukh, Papum Pare District, Arunachal Pradesh. VERSUS The State of AP and 2 Ors represented by the PP of AP 2:Smti Kiyir Riba Age: 0 Occupation : Daughter of Shri Kimar Diyum resident of Chandranagar near Geology and Mining Office Itanagar Po and PS Itanagar Papum Pare District Arunachal Pradesh. 3:Kenbo Bogo Age: 0 Occupation : resident of Chandranagar near Geology and Mining Office Itanagar PO and PS Itanagar Papum Pare District Arunachal Pradesh Advocate for the Petitioner : Rajesh Sonar, M Basar,Khyoda Yayo,Michi Khambo,Binny Nyaruce,R Taku Advocate for the Respondent : P P of AP, Legal Aid Counsel,Oyam Binggep Page No.# 2/9 BEFORE HON’BLE MR. JUSTICE KARDAK ETE O R D E R Date : 24.06.2025. Heard Mr. R. Sonar, learned counsel for the applicant. Also heard Mr. G. Tado, learned Addl. Public Prosecutor, Arunachal Pradesh appearing for the State and Ms. O. Binggep, learned Legal Aid Counsel for the informant. 2. This is an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, praying for grant of bail to the accused, namely, Sri Guddu Kumar, in connection with the Itanagar Women P.S. Case No.03/2024, under Sections 363/366-A/ 376(3)/376DA/354/120 of the IPC, read with Sections 5/6/12 of the POCSO Act, 2013. 3. The case set up by the prosecution is that on 20.01.2024, a written FIR was received from one Smti. Kiyir Diyum Riba of Chandranagar near Geology & Minning Office, Itanagar, Arunachal Pradesh stating that her cousin, namely, Ms. A, aged about 14 years has been found missing since 18th & 19th January, 2024. It also states that another girl, namely, Ms. B, aged 12 years has also gone missing from their rental house on the same day. Accordingly, initially a case was registered under Section 363 of the IPC, 1860. 4. The investigating officer has recovered both the missing girls from the saloon/parlour of accused Manish Kumar Thakur from Guwahati on 21.01.2024. Page No.# 3/9 Both the girls were examined during which it was learnt that both have been subjected to gang rape by four accused persons. On disclosure of the said offence, they were taken to TRIHMS Hospital, Naharlagun for medical examination and later on both the girls were handed over to their parents. 5. Upon disclosure of allegation of commission of gang rape, a requisition was made to the Special Judge (POCSO), Yupia on 23.01.2024, for insertion of Section 366-A/376DA of the IPC and Section 6 of the POCSO Act, 2013, in addition to Section 363 of the IPC, which was registered initially. Accordingly, a case was registered being Itanagar Women P.S. Case No.03/2024, under Section 363/366-A/ 376DA of the IPC, read with Section 6 of the POCSO Act, 2013. 6. Altogether five accused persons have been arrested on 24.01.2024 and 25.01.2024. Accused Sri Guddu Kumar was arrested on 24.01.2024. Upon conclusion of the investigation, a charge sheet was submitted under Section 363/366-A/376(3)/376DA/354/120 of the IPC, read with Section 4(2)/6(1)/12 of the POCSO Act, 2013, against four accused persons including the present accused and under Section 120 B of the IPC, against one Simanta Hazarika. 7. The case has been registered in the Court of Special Judge (POCSO), being POCSO Case No.04/2024, which is pending trial. 8. The prosecution has examined five witnesses so far, out of total fifteen witnesses, which began in the month of December, 2024. The present bail application is being filed by the father of the accused Sri Guddu Kumar. Page No.# 4/9 9. Accused Sri Guddu Kumar, upon receipt of information that a case has been registered against him, surrendered before the police and accordingly, he was arrested on 24.01.2024 and since then, he is languishing in the judicial custody at the District Jail, July, Itanagar, for nearly eighteen (18) months and the trial has already been commenced and the evidence of both the victims as well as the complainant has been recorded and discharged. Therefore, the possibility of hampering or tampering with the case or influence over the witnesses can be ruled out completely on the part of the alleged accused person. So far, five out of fifteen prosecution witnesses have been examined within a period of seven months and the petitioner having been voluntarily surrendered before the police and has been cooperating since the inception of the case, the further detention and custody of the accused person is not necessary. Both the victims and the complainants, who are the important witnesses have already been examined. Therefore, there is no chance to affect the trial as well as the evidence. 10. Mr. R. Sonar, learned counsel for the applicant submits that the accused being a resident of Doimukh in the District of Papumpare, Arunachal Pradesh, who is working as a mechanic at Doimikh and from the said job, he earns his daily livelihood for his sustenance and therefore, the chances of his fleeing is not at all possible. He submits that time and again the Hon’ble Supreme Court has held that bail is the rule and committal to jail is an exception. The refusal of bail is a restriction of personal liberty of an individual guaranteed under Article 21 of the Constitution. Even if there is a prima facie case against the alleged accused, the rule is still bail but not jail and presumption of innocence is the cardinal principle of the Indian Criminal Jurisprudence and is the privilege of Page No.# 5/9 every accused and there is also presumption that applicant would not temper with the witnesses or abscond from the trial, if he is enlarged on bail. 11. Mr. R. Sonar, learned counsel for the applicant further submits that the accused person is willing to furnish adequate bond, surety and security for the purpose of bail and undertake to present before the trial Court, whenever he is called upon to do so. He further undertakes to abide by any condition/conditions that may be imposed upon him while granting bail and unconditionally assures that he would not temper with any evidence nor hamper with trial and wilfully cooperate with the trial. Therefore, the learned counsel for the accused submits that accused Sri Guddu Kumar may be released on bail, as there is likelihood of delay in trial, as another ten prosecution witnesses are to be examined and the accused having been languishing in the jail since 24.01.2024. 12. In support of his submission, Mr. R. Sonar, learned counsel for the applicant has placed reliance upon the judgement of the Hon’ble Supreme Court in the case of Javed Gulam Nabi Shaikh vs. State of Maharashtra and another, reported in (2024) 9 SCC 813. The relevant paragraphs are reproduced here-in- below: “16. Criminals are not born but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations. 17. If the State or any prosecuting agency including the court concerned has no Page No.# 6/9 wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. 18. We may hasten to add that the petitioner is still an accused; not a convict. The over- arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly. howsoever stringent the penal law may be”. 13. Mr. G. Tado, learned Addl. Public Prosecutor, Arunachal Pradesh and Ms. O. Binggep, learned Legal Aid Counsel for the informant, while referring to the deposition of the victims, submits that the evidence as of now clearly indicates the commission of offence of such a serious nature, involving five accused persons. The statement/depositions of the victims are clear and consistent that the present accused person committed rape along with other co-accused with the victim girls and the trial having been commenced, the accused person is not entitled to be released on bail. It is submitted that since the accused is not a permanent resident of the State and is originally from outside the State, there is a likelihood of fleeing from justice, if the accused is released on bail. 14. I have considered the submissions advanced by the learned counsel for the parties and also perused the scanned copy of the trial Court records. 15. The present accused namely, Sri Guddu Kumar was arrested on 24.01.2024 along with two other co-accused(s) and two more accused(s) were arrested on 25.01.2025. The victims have been recovered by the police from Guwahati on 21.01.2024, from the saloon of co-accused Manish Kumar Thakur. On examination, it has been disclosed that the minor victims were subjected to gang rape by four accused persons. Initially the case was registered under Section 363 of the IPC. Thereafter, on recovery of the victim and having found Page No.# 7/9 that they were subjected to gang rape by the four accused persons, the present case has been registered under Section 363/366-A/ 376DA of the IPC, read with Section 6 of the POCSO Act, 2013. 16. On perusal of the deposition of the victims, prima facie, establish the commission of the alleged offence by the accused persons, including the present accused. The trial has already began and so far, five prosecution witnesses including the victims and the informants have been examined within a span of nearly six months and other ten more prosecution witnesses are to be examined, which may take considerable period of time. 17. As observed and held by the Hon’ble Supreme Court, it is true that ccriminals are not born but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. The accused is still an accused; not a convict. The over-arching postulate Page No.# 8/9 of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly. howsoever stringent the penal law may be. 18. Equally, the Hon’ble Supreme Court in the case of X vs. State of Rajasthan and another, reported in 2024 SCC OnLine SC 3539 has held that ordinarily in serious offences like rape, murder, dacoity. etc., once the trial commences and the prosecution starts examining its witnesses, the Court should be loath in entertaining the bail application of the accused. It has also observed that over a period of time, two things are noticed, i.e. (i) either the bail is granted after charge is framed and just before the victim is to be examined by the prosecution before the trial 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. 19. Having noticed above, the Hon’ble Supreme Court has held that the aforesaid is not a correct practice that the Court should adopt. Once the trial commences, it should be allowed to reach to its final conclusion, which may either results in conviction of the accused or acquittal of the accused. The moment the High Court exercise its jurisdiction 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 delay 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 the right of the accused to have a speedy trial has been infringed. Page No.# 9/9 20. In the case at hand, although there are fifteen prosecution witnesses and five prosecution witnesses have been examined so far, the trial appears to be on its right pace and therefore, cannot be said that the trial would get unduly delayed. 21. Coupled with the above, the offence alleged is a serious offence like gang rape and under the POCSO Act and the deposition of the victims appears to be clear and consistent that the accused persons including the present accused had subjected the victim girls to rape. 22. As held by the Hon’ble Supreme Court in the case of X vs. State of Rajasthan (supra), once the trial commences, it should be allowed to reach to its final conclusion, which may either results in conviction of the accused or acquittal of the accused and in a serious offence like rape, once the trial commences and the prosecution starts examining its witnesses, ordinarily the application for bail should not be entertained. 23. Having considered above, this Court is not inclined to admit the accused, namely, Shri Guddu Kumar to bail. Accordingly, the bail application stands rejected and disposed of. JUDGE Comparing Assistant