Page No.# 1/6 GAHC010031632025 2025:GAU-AS:6431 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./437/2025 RAJAK ALI @ REZZAK ALI @ REZAK ALI S/O- ABBAS ALI, VILL- KAWAIMARI 1 NO BLOCK PS SARTHEBARI, DIST- BARPETA, ASSAM VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:SUMED ALI S/O FALU MIAH RESIDENT OF KAWAIMARI 1 NO. BLOCK PS SARTHEBARI DIST BARPETA ASSA Advocate for the Petitioner : MR H A AHMED, MR. MUSTAFA HUSSAIN,MR. R ALI Advocate for the Respondent : PP, ASSAM, MR. S A B KHABIR(R-2),MR S HUSSAIN(R-2),MR. A S ALI (R-2) BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 21.05.2025 Heard Mr. R. Ali, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, Assam for the State. Also heard Mr. A. S. Ali, learned counsel for the Page No.# 2/6 respondent No. 2/informant of Sarhebari Police Station Case No. 110/2024/father of the minor victim girl. 2) The petitioner, namely, Rajak Ali @ Rezzak Ali @ Rezak Ali, son of Abbas Ali, resident of village-Kawaimari 1 No. Block, Police Station-Sarthebari, District-Barpeta has filed this application on 13.02.2025 under Section 483 BNSS, 2023 seeking his bail in Special (POCSO) Case No. 160/2024, arising out of Sarthebari Police Station Case No. 110/2024, registered under Sections 61(2)/140(3)/65(1) BNS, 2023 read with Section 4 of the POCSO Act, 2012, in which, he was arrested on 22.08.2024 and is in custody since then. 3) The petitioner submitted that in the meanwhile, the evidence of the informant of the case as PW-1 and the minor victim girl as PW-2 have already been recorded by the learned Special Judge (POCSO), Barpeta in Special (POCSO) Case No. 160/2024; as such, considering his detention in custody since 22.08.2024, the petitioner should be release on bail in said Special (POCSO) Case No. 160/2024. 4) The petitioner has also urged before the Court that while arresting him on 22.08.2024, the authorities from Sarthebari Police Station did not comply with the provisions of Section 47 of the BNSS, 2023 by arresting him without informing him the grounds of arrest and thereby, violated his right under Article 22(1) of the Constitution of India. 5) In this regard, Mr. Ali, learned counsel appearing for the petitioner relied on the decisions of the Hon’ble Suprme Court in the cases of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254 and Vihaan Kumar Vs. State of Haryana & Anr., reported in (2025) SCC OnLine SC 269. 6) Perused the records of said Special (POCSO) Case No. 160/2024 along with the records of Sarthebari Police Station Case No. 110/2024 that were called for by the Court vide order dated 19.02.2025. 7) On perusal of the records of the case, it is seen that on the night of 17.08.2024, when the minor victim girl, aged about 15 years went out of her home to answer nature’s call, the accused petitioner along with two others forcefully kidnapped her, took her in a car and the accused petitioner herein committed forceful sexual intercourse with her on the night of 17.08.2024 itself. Subsequently, on the next day, the victim girl was recovered from the house Page No.# 3/6 of one Jahanara Begum, a relative of the accused petitioner; by the villagers when she was brought back. 8) The said FIR of the respondent No. 2 dated 20.08.2024 was accordingly registered as Sarthebari Police Station Case No. 110/2024 under Sections 61(2)/140(3)/65(1) BNS, 2023 read with Section 4 of the POCSO Act, 2012. 9) The petitioner was arrested on 21.08.2024 around 8:50 PM and he was produced before the learned Special Judge (POCSO) -cum- Additional Sessions Judge, Barpeta on 22.08.2024 in said Sarthebari P.S. Case No. 110/2024. 10) During investigation of the case, statement of the minor victim girl was recorded under Section 183 BNSS, 2023 on 21.08.2024 before the learned Judicial Magistrate First Class, Barpeta, in which the minor victim girl implicated the accused petitioner of committing forceful sexual intercourse with her in the house of Jahanara Begum, the accused petitioner’s aunt. 11) The minor victim girl was also medically examined on 20.08.2024. 12) During investigation, Police seized the original Birth Certificate of the victim girl issued by the Registrar of Births and Deaths, Kawaimari State Dispensary, district-Barpeta on 08.04.2009 vide registration No. 141-091 indicating the date of birth of the victim girl as 28.03.2009; as such, on the date of the incident, i.e., on 17.08.2024, the victim girl was 15 years and 4 months old, a minor under the POCSO Act, 2012. 13) After completion of the investigation of the case, Police submitted charge sheet in said Sarthebari P.S. Case No. 110/2024 on 30.09.2024 vide Charge Sheet No. 108/2024 against the petitioner under Sections 61(2)/140(3)/65(1) of BNS, 2023 read with Section 4 of the POCSO Act, 2012. Thereafter, said Sarthebari P.S. Case No. 110/2024 was re-registered and re-numbered as Special (POCSO) Case No. 160/2024 before the Court of the learned Special Judge (POCSO) -cum- Additional Sessions Judge, Barpeta. 14) Charge under Sections 64/87 BNS, 2023 read with Section 4 of the POCSO Act, 2012 was framed against the petitioner on 05.12.2024 by the learned Special Judge (POCSO) -cum- Additional Sessions Judge, Barpeta. Page No.# 4/6 15) From the charge sheet of the case, it is seen that there are about 10 (ten) named prosecution witnesses and as per the records available before the Court as on 18.03.2025, evidence of 2 (two) prosecution witnesses have been recorded by the Court of the learned Special Judge (POCSO) -cum- Additional Sessions Judge, Barpeta in said Special (POCSO) Case No. 160/2024, including the evidence of the minor victim girl. 16) However, from the case records, it is seen that at the time of arrest of the petitioner on 21.08.2024, one Hannanur, brother of the petitioner was present and Notice under Section 48 BNSS, 2023 was also issued to said Hannanur on 21.08.2024, obtaining his acknowledgment. 17) However, on perusal of the records, it is seen that while issuing the said Notice under Section 47 BNSS, 2023 to the petitioner on 21.08.2024, which the petitioner acknowledged by putting his signature; the said Notice was not in compliance with the provisions of Section 47 BNSS, 2023, as it did not contain the grounds of arrest, as being established in the cases of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254 and Vihaan Kumar Vs. State of Haryana & Anr., reported in (2025) SCC OnLine SC 269 passed by the Hon’ble Supreme Court. 18) Considering such materials in the case records and since the police personnel of Sarthebari Police Station, while arresting the petitioner on 21.08.2024 did not comply with the provisions of Section 47 BNSS, 2023 and thereby violated the provisions of Article 22(1) of the Constitution of India, the Court found that the petitioner is entitled for his bail in said Special (POCSO) Case No. 160/2024, arising out of Sarthebari Police Station Case No. 110/2024. 19) Accordingly, the petitioner, namely, Rajak Ali @ Rezzak Ali @ Rezak Ali, son of Abbas Ali be released on bail in said Special (POCSO) Case No. 160/2024, arising out of Sarthebari Police Station Case No. 110/2024, on furnishing a bail bond of Rs. 2,00,000/- (Rupees Two Lakhs), with 2(two) local sureties, each of the like amount both of which should be permanent residents of District-Barpeta, to the satisfaction of the learned Special Judge (POCSO) -cum- Additional Sessions Judge, Barpeta subject to the conditions that the petitioner, named above — i) shall not leave the territorial jurisdiction of the learned Special Judge (POCSO) Page No.# 5/6 -cum- Additional Sessions Judge, Barpeta without obtaining prior written permission from the said authority, till disposal of said Special (POCSO) Case No. 160/2024; ii) shall regularly attend the Trial before the learned Special Judge (POCSO) -cum- Additional Sessions Judge, Barpeta in said Special (POCSO) Case No. 160/2024 and shall co-operate with the said Special Court during the trial of the said case till its disposal; iii) shall not hamper and/or tamper with the evidence of the case; iv) shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade them from disclosing such facts to the Court; v) shall not harm/threat the minor victim girl, her parents or anyone of her family members by him or by anyone acting on his behalf in any manner; vi) shall not come to the vicinity of the minor victim girl or anyone of her family and vii) shall not involve himself in any criminal activities in the future. 20) Violation of any of the aforesaid terms and conditions by the petitioner, namely, Rajak Ali @ Rezzak Ali @ Rezak Ali, son of Abbas Ali the bail granted to him in said Special (POCSO) Case No. 160/2024, arising out of Sarthebari Police Station Case No. 110/2024 shall stand automatically vacated. 21) It is also made clear that the learned Special Judge (POCSO) -cum- Additional Sessions Judge, Barpeta shall be at liberty to impose any other conditions, as it deems fit and proper at the time of releasing the accused petitioner on bail in said Special (POCSO) Case No. 160/2024, arising out of Sarthebari Police Station Case No. 110/2024 to procure his attendance till the conclusion of the trial of said Special (POCSO) Case No. 160/2024. 22) It is observed that this order relates to bail of the accused petitioner, namely, Rajak Ali @ Rezzak Ali @ Rezak Ali, son of Abbas Ali in said Special (POCSO) Case No. 160/2024, Page No.# 6/6 arising out of Sarthebari Police Station Case No. 110/2024 and not on merits of the case. 23) Petitioner, named above, be released on bail accordingly, if not required in any other Criminal Case. 24) With the above observation and direction, this bail application stands allowed to the extent above. JUDGE Comparing Assistant