Page No.# 1/6 GAHC010003272025 2025:GAU-AS:3518 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./87/2025 ANOWAR ALI S/O AMIR ALI R/O VILL- BHUMKI PT. I (TARANGGURI) P.S. KOKRAJHAR, DIST. KOKRAJHAR, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM 2:SAHADEB ARJYA S/O LATE PALEN ARJYA R/O VILL- BONORGAON P.O. BONORGAON P.S. DOTMA DIST. KOKRAJHAR ASSA Advocate for the Petitioner : MR. J ALI, Advocate for the Respondent : PP, ASSAM, MS B CHOUDHURY, AMICUS CURIAE (R-2) Page No.# 2/6 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 26-03-2025 Heard Mr. Yusuf Saleh Mannan, learned counsel for the petitioner and Mr. Mridupawan Goswami, learned Additional Public Prosecutor, Assam for the opposite party No.1. Also heard Ms. Barnita Choudhury, learned Amicus Curiae for the informant/opposite party No.2. 2. The petitioner, namely, Anowar Ali, son of Amir Ali, resident of Village-Bhumki Pt-I (Tarangguri), Police Station-Kokrajhar, District-Kokrajhar, Assam has filed this application under Section 483 BNSS, 2023, on 06.01.2025 seeking bail in Special (POCSO) Case No.139/2024 registered under Sections 363/368/376(1)/376(2)(M) IPC, read with Section 6 of the POCSO Act, read with Section 9 of the Prevention of Child Marriage Actarising out of Kokrajhar Police Station Case No. 29/2024, presently pending before the Court of learned Special Judge (POCSO), Kokrajhar,wherein he is in custody since 10.05.2024. 3. By order dated 10.01.2025, scan copy of the record of said Special (POCSO) Case No.139/2024 as well as the copy of the records of Kokrajhar P.S. Case No. 29/2024 was called for. 4. Mr. Mannan, learned counsel for the petitioner submitted that the forwarding report of the petitioner dated 10.05.2024 submitted by the Investigating Officer of the case before the learned Chief Judicial Magistrate, Kokrajhar itself indicates that date of birth of the victim girl is 28.06.2006. As such, at the time of the incident, the victim girl was just one month less to attain the age of majority at 18 years. 5. It is also contended by the petitioner that the victim, in her statement under Section 164 CrPC deposed before the Magistrate that she was having a love affair with the petitioner and eloped with him to Delhi and married him before a Kaji and stayed there in a rented house for about a month and thereafter, came to Guwahati, wherein they stayed together for about 4 months. 6. Mr. Mannan, learned counsel also submitted that the victim changed her version before Page No.# 3/6 the learned Trial Court and submitted something else, which she did not state before police in her statement recorded under Section 161 CrPC as well as before the learned Magistrate under Section 164 CrPC. 7. Considering such discrepancies of the version of the victim girl and the length of detention of the petitioner in custody since 10.05.2024, Mr. Mannan, learned counsel submitted that the petitioner should be considered for his bail in said Special (POCSO) Case No.139/2024, arising out of Kokrajhar P.S. Case No. 29/2024. 8. As per the FIR dated 30.01.2024, lodged before the Officer-in-Charge of Dotma Police Station by the informant/respondent No.2, the case is that his minor daughter, aged about 16/17 years was found missing from his house since 22.01.2024. Though, they searched for her, but failed to gather any information about her whereabouts and she remained untraced. Later, he reliably learnt that one Anowar Hussain, resident of Akonguri, Salakati, an unknown person kept his daughter confined in an undisclosed location at Guwahati. As such, the informant/respondent No.2 prayed before the authorities of Dotma Police Station to do the needful and to rescue his daughter. The said FIR of the informant/respondent dated 30.01.2024 was accordingly registered as Dotma P.S. Case No.01/2024 under Sections 363/368 IPC, which was subsequently, registered as Kokrajhar P.S. Case No. 29/2024 under Sections 363/368 IPC. 9. From the records of the case, it is seen that during investigation, police seized the Birth Certificate of the victim girl, issued by the Registrar of Births and Deaths, Srijangram Public Health Centre on 12.04.2011 indicating her date of birth as 28.06.2006. 10. The victim girl as well as the petitioner was apprehended by Kokrajhar Police on 10.05.2024 and the victim was forwarded to the R.N.B. Civil Hospital, Kokrajhar on 11.05.2024 for her medical examination, during which, she stated that she eloped with the accused about five months back. Though the victim refused for her internal examination, but during her Ultrasonography (USG) she was found to be pregnant of 15 weeks, 3 days as on 13.05.2024. 11. During her statement under Section 164 CrPC recorded by the learned Judicial Magistrate First Class, Kokrajhar on 13.05.2024, the victim girl deposed before the learned Page No.# 4/6 Magistrate that since last one and half years, she was having a love affair with the petitioner and she eloped with him about five months back and left for Delhi, wherein, she married the petitioner before a Kaji and stayed there for about a month. Thereafter, she along with the petitioner came to Guwahati and lived with him in a rented house for about four months and during that period of five months, she and the petitioner on number of occasions had physical relation, for which she became pregnant. As she, over phone was informed that her family members have lodged a police case pertaining to her being missing with the petitioner, therefore, she along with the petitioner appeared before police. 12. From the records, it is also seen that after completion of the investigation of the case, police vide No. 936/2024 dated 30.05.2024 submitted the charge-sheet in said Kokrajhar P.S. Case No. 29/2024 against the petitioner under Sections 363/368 IPC, with added Sections 376(1)/376(2)(m) IPC read with Section 6 of the POCSO Act and Section 9 of the Prevention of Child Marriage Act. Said charge-sheet contains a list of twelve named prosecution witnesses. 13. It is further seen that after filing of the charge-sheet in said Kokrajhar P.S. Case No. 29/2024, pursuant to the order dated 18.06.2024 passed by the Court of learned Special Judge (POCSO), Kokrajhar the said Kokrajhar P.S. Case No. 29/2024 was re-registered and numbered as Special (POCSO) Case No.139/2024 in the said Special Court. 14. The Court of learned Special Judge (POCSO), Kokrajhar, by order dated 12.07.2024 framed charge under Sections 376/366 IPC read with Section 6 of the POCSO Act in said Special (POCSO) Case No.139/2024. 15. From the records of the case, it is seen that since 12.07.2024 upto 05.10.2024, the prosecution has adduced the evidence of three of its witnesses, including the informant, the victim girl as well as her mother. 16. Both Mr. Goswami, learned Addl. Public Prosecutor as well as Ms. B. Choudhury, learned Amicus Curiae submitted that considering the date of birth of the victim as 28.06.2006 and the date when she was missing i.e., 22.01.2024, she was found to be of 17 years 7 months old and less than 18 years at the time of the incident and being less than 18 years of age the victim girl was a child, as defined under the POCSO Act. Page No.# 5/6 17. Both of them also submitted that there cannot be any consent from the victim girl, who was child at the relevant point of time, to have any such sexual relation with her. 18. It is also submitted by Ms. B. Choudhury, learned Amicus Curiae that since the victim, on 13.05.2024, was found to be pregnant of 15 weeks, 3 days, she was a minor at the relevant point of time. 19. From the records of the case, his forwarding report dated 10.05.2024 and the charge- sheet filed in the case, it is seen that the petitioner was 27 years old, whereas, the victim girl was a child of 17 years 7 months. 20. 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, 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 an accused of the case.” 21. 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.” 22. The petitioner could not have taken any favour including of having sexual relation with the victim girl, who was a minor at the relevant point of time. It is also seen that since the date of his arrest on 10.05.2024, the police have already submitted the charge-sheet and Page No.# 6/6 charge in the case has already been framed and in the meanwhile, prosecution has also adduced the evidence of three of its witnesses, out of twelve. 23. Considering the above and the decision of the Hon’ble Apex Court in the Case of X Vs. State of Rajasthan (supra),this Court is of the opinion that the detention of the petitioner since 10.05.2024 in the case cannot be considered that his right to have a speedy trial of the case has been infringed. 24. For the reasons above, this Court of the view that considering his detention since 10.05.2024, the petitioner, named above, is not entitled for his bail in said Special (POCSO) Case No.139/2024 arising out of Kokrajhar P.S. Case No. 29/2024, presently pending before the Court of learned Special Judge (POCSO), Kokrajhar. 25. Accordingly, this bail application of the petitioner, namely, Anowar Ali, son of Amir Ali in said Special (POCSO) Case No.139/2024 arising out of Kokrajhar Police Station Case No. 29/2024, pending before the Court of learned Special Judge (POCSO), Kokrajhar, stands rejected. 26. The assistance rendered by Ms. Barnita Choudhury, learned Amicus Curiae in adjudicating this case is highly solicited. The Gauhati High Court Legal Services Authority shall pay the remuneration to Ms. Barnita Choudhury, learned Amicus Curiae, on raising a bill. 27. It is made clear that the Court of learned Special Judge (POCSO), Kokrajhar while adjudicating the said Special (POCSO) Case No.139/2024arising out of KokrajharPolice StationCase No. 29/2024 shall not be influenced with any of the observation or finding made herein above, in this bail application. JUDGE Comparing Assistant