Page No.# 1/6 GAHC040018632024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : BA/137/2024 Smti Iznara Begum Wife of Samsul Ali, a permanent resident of Village Dongibil, PO and PS Laluk, Lakhimpur District, Assam and presently residing at Polo Colony near Higher Secondary School, Naharlagun, PO and PS Naharlagun, Papum Pare District, Arunachal Pradesh. VERSUS The State of AP and Anr represented by the PP of AP 2:Mrs Saroti Tati Age: 0 Occupation : Wife of Tiju Gaur Hollongi Village PO and PS Gohpur District Biswanath Charali Assam presently residing at Polo Colony near Govt Higher Secondary School Polo colony Naharlagun PO and PS Naharlagun Papum Pare District Arunachal Pradesh Advocate for the Petitioner : Amit Saring, Takom Roleng,Juel Saroh,Bomnya Kamdak,Nalo Pada Advocate for the Respondent : P P of AP, Legal Aid Counsel,O Binggep Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE KARDAK ETE ORDER Date : 07.02.2025 Heard Mr. N. Pada, learned counsel for the applicant. Also heard Ms. L. Hage, learned Additional Public Prosecutor for the State and Ms. O. Binggep, learned legal aid counsel for the respondent No.2/informant. 2. This bail application has been filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking release of the accused person, namely, Shri Samsul Ali, on bail, who has been arrested on 16.06.2024, in connection with POCSO Case No.12/2024, corresponding to Itanagar Women Police Station Case No. 29/2024, under Section 452 of IPC read with Section 6 of the POCSO Act, 2012. 3. The case set-up by the prosecution is that on 16.06.2024, a written FIR was lodged by one Mrs Saroti Tati, to the effect that one Md. Samsul Ali of Polo Colony, Nahalagun, had raped her niece, ‘X’ (name withheld), aged about 13 years on 15.06.2024 at around 1200 noon, while he visited her rented apartment in the pretext of filling water in a bucket. 4. Upon receipt of the said FIR, a case has been registered being Itanagar Women Police Station Case No. 29/2024, under Section 452 IPC read with Section 6 of the POCSO Act, 2012. The accused was arrested on 16.06.2024 and is in judicial custody for more than 7 (seven) months, since then. 5. Upon conclusion of the investigation, the Police has laid the charge-sheet Page No.# 3/6 vide dated 06.08.2024, under Section 452 of the IPC read with Section 6 of the POCSO Act. 6. Mr. N. Pada, learned counsel for the applicant, submits that since the accused was arrested on 16.06.2024 and has been in judicial custody for more than 7 (seven) months, the charge-sheet having been filed and the trial commenced, there is no reason for further detention of the accused in jail, inasmuch as, no custodial interrogation is required. He submits that although the trial has commenced, there is likelihood of trial being delayed as no prosecution witness has been examined as yet. He submits that although the accused is a non-tribal, but he is a permanent resident of Polo Colony, Naharlagun, there is no risk of him absconding. 7. Mr. Pada, learned counsel further submits that the accused is only the bread-earner in the family having 3 (three) school going children. Furthermore, he submits that as per the medical report, everything has been found normal, as such, there is no question of commission of offence, as alleged against the accused. Therefore, considering the prolonged incarceration of the accused in judicial custody without the trial being concluded and the likelihood of further delay, the accused person may be released on bail on any conditions that may be imposed by the Court. 8. Mr. Pada, learned counsel for the applicant, has placed reliance on the order of the Hon’ble Supreme Court in the case of Deshraj @ Musa Vs. State of Rajasthan & Anr., reported in 2024 SCC Online SC 2709, to show that the Hon’ble Apex Court has granted bail in a situation where the accused was detained in jail for 5 (five) months. Page No.# 4/6 9. On the other hand, Ms. L. Hage, learned Addl. P.P. submits that since the allegation is of heinous and serious nature and the trial has already commenced, the accused is not entitled to be released on bail at this stage. She further submits that there is enough materials to establish that the accused has committed the alleged offences. Therefore, she submits that the accused may not be released on bail and the trial may be allowed to complete, which would determine the guilt or otherwise of the accused. 10. Ms. O. Binggep, learned legal aid counsel for the respondent No.2/informant, while subscribing to the submission made by the learned Additional Public Prosecution, submits that since the allegation is of serious and heinous nature and the victim is yet to be examined and the trial has just commenced, the accused is not entitled to be admitted on bail. 11. Considered the submissions of the learned counsel for the parties and also perused the material available on record. 12. The allegation against the accused is of serious nature, the victim is noticed to be of 13 years and the statement under Section 164 of Cr.P.C., corresponding to Section 183 of BNSS, 2023, prima facie, indicates the commission of an offence against the victim by the accused. 13. Although, the medical report indicates that no injuries were found and no use of force, but the sexual assault cannot be not ruled out. In any case, such statement and the report is a matter of trial, however, prima facie, it indicates against the accused person. It is noted that the trial has commenced and the next date is fixed on 25.03.2025 for examination of prosecution witnesses, including the victim. Page No.# 5/6 14. In the case of X Vs. State of Rajasthan, reported in 2024 INSC 909, the Hon’ble Supreme Court has observed that ordinarily in serious offences like rape, murder, dacoity, 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 the accused. It has also been observed that 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. 15. In the present case, the trial has already commenced and the next date is fixed on 25.03.2025 for examination of the prosecution witnesses, including the victim. Since the allegation is of serious in nature, in view of the observation of the Hon’ble Supreme Court and considering that the trial has already commenced, I am of the view that the accused is not entitled to be released on bail at this stage. 16. Having regard to the order of the Hon’ble Supreme in the case of Deshraj @ Musa (Supra) as placed reliance on by the learned counsel for the applicant Mr. N. Pada, it is seen that the accused in that case was in jail for 5 (five) months. It was a case where it is found that the accused was only 18 and half years at the time of alleged commission of the offence, whereas the victim was about 16 years and that there was a consensual relationship between the parties and thereby, as many as 12 (twelve) witnesses to be examined and it was found that the trial would be prolonged. Having regard to the facts of the case, particularly, the parties were in consensual relationship and trial would be prolonged, the Hon’ble Supreme Court has granted bail to the accused in that case, which is clearly distinguishable from the case in hand. Page No.# 6/6 17. Having considered the observation of the Hon’ble Supreme Court and considering that the allegation against the accused is of heinous and serious in nature as well as considering that the trial has commenced, and the trial may not be prolonged as of now, I am not inclined to grant bail to the accused person at this stage. Accordingly, the bail application stands rejected. 18. Bail application is disposed of. JUDGE Comparing Assistant