Page No.# 1/8 GAHC010036532025 2025:GAU-AS:5874 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./494/2025 GANESH SAHA @ TENDAL S/O- LATE GOBIND SAHA, VILL- PAKABETABARI PAM, PS. BARPETA, DIST- BARPETA, ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM 2:SALEHA KHATUN W/O. MANIRUL ISLAM VILL. CHAKIRBHATHA P/O. KHABLARBHITHA P/S. AND DIST. BARPETA PIN-781352 Advocate for the Petitioner : MR H A AHMED, MR. R ALI Advocate for the Respondent : PP, ASSAM, MS P DAS (AMICUS CURIAE, R-2) BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 13.05.2025 Heard Md. Rahmat Ali, learned counsel for the petitioner and Mr. Kamal Krishna Parashar, learned Additional Public Prosecutor, Assam for the State. Also heard Mr. Priyanki Das, learned Amicus Curiae appearing for the respondent No. 2/informant/mother of the minor victim girl. Page No.# 2/8 2. The petitioner, namely, Ganesh Saha @ Tendal, son of late Gobind Saha, resident of Village-Pakabetabri Pam, P.S.-Barpeta, District-Barpeta, on 19.02.2025 has filed this application under Section 483 BNSS, 2023 praying for his bail in Special (POCSO) Case No. 136/2024 arising out of Barpeta Police Station Case No. 238/2024 under Section 376(AB) IPC read with Section 6 of the POCSO Act, in which he was arrested on 11.06.2024 and is in custody since then. 3. As per the FIR dated 11.06.2024 lodged before the Officer-in-Charge of Barpeta Sadar Police Station by the informant, respondent No. 2 herein the case is that her daughter who is about 3 years old at around 10:45 AM on 10.06.2024 went to a nearby shop of one Nokul Moni Das to purchase chips. While her minor daughter was in the said shop, the accused petitioner induced her by paying some money and telling her that he shall also pay her money to buy chips and took her to his house, where the accused petitioner sexually assaulted her minor daughter in the absence of any person in his house. Later, when her minor daughter returned to home, the informant enquired from her why she was late and then she told her in detail and how the accused petitioner sexually assaulted her. Said FIR of the informant was accordingly registered as Barpeta Police Station Case No. 238/2024 under Section 376(AB) IPC read with Section 6 of the POCSO Act. 4. The Court on 25.02.2025 called for the scanned legible copy of the records from the Court of the learned Special Judge (POCSO), Barpeta. 5. Considering his detention in custody since 11.06.2024, the petitioner has prayed for his bail in said Special (POCSO) Case No. 136/2024 arising out of Barpeta P.S. Case No. 238/2024. 6. By filing an additional affidavit, it is also submitted on behalf of the petitioner that no notice under Sections 50 and 50A of the CrPC was served on the accused petitioner or his relative at the time of his arrest in said Barpeta P.S. Case No. 238/2024. 7. On perusal of the records, it is seen that on receipt of the information from the informant of the case, police authorities from Barpeta immediately informed the concerned Child Welfare Committee (CWC), Barpeta about the incident. 8. On the same day, i.e., on 11.06.2024 the minor victim girl was produced before the Page No.# 3/8 Fakaruddin Ali Ahmed Medical College & Hospital, Barpeta for her medical examination and the concerned Doctor who medically examined the victim girl in his report dated 11.06.2024 found the following injuries – (i) Redness around labia majora. (ii) Redness around the hymenal orifice. (iii) There is evidence of injury which is described in the genital examination. (iv) There is no evidence of recent sexual intercourse detected on her person but there is rubbing against her private parts. 9. On 12.06.2024 the minor victim girl was produced before the learned Judicial Magistrate First Class, Barpeta and her statement under Section 164 CrPC was recorded, in which she implicated the petitioner and also explained as to how the accused petitioner committed sexual assault on her. 10. During investigation, police seized the birth certificate of the victim girl issued by the Registrar of Birth and Deaths, Fakaruddin Ali Ahmed Medical College & Hospital, Barpeta issued on September, 2021 itself, which indicates the date of birth of the victim girl as 05.02.2021. As such, on the date of the incident on 10.06.2024, the minor victim girl was about 3 years 4 months old, as such a minor under the POCSO Act. 11. Police after completion of the investigation, submitted charge-sheet before the learned Special Judge (POCSO), Barpeta and on 17.09.2024 the learned Special Judge (POCSO), Barpeta in said Special (POCSO) Case No. 136/2024 arising out of Barpeta P.S. Case No. 238/2024 took cognizance of the offences under Section 376(AB) IPC read with Section 8 of the POCSO Act. On proper application of the concerned Investigating Officer of the case indicating that instead of Section 376(AB) IPC read with Section 6 of the POCSO Act in the charge-sheet, it was inadvertently typed as Section 376 AB IPC read with Section 8 of the POCSO Act and prayed for necessary correction of the penal Sections. By order dated 24.09.2024 the learned Special Judge (POCSO), Barpeta corrected the same. 12. In the additional affidavit filed by the petitioner on 21.04.2025, he claimed that at the time of his arrest on 11.06.2024 in said Barpeta P.S. Case No. 238/2024 under Section 376(AB) IPC read with Section 4 of the POCSO Act he was not served any ground of arrest as required under Section 50, CrPC (47 BNSS), except the Police Station Case Number and Sections in Page No.# 4/8 connection with which he was arrested and apart from that no grounds/reasons was stated. For such reasons, the petitioner prayed for his bail in said Special (POCSO) Case No. 136/2024 arising out of Barpeta P.S. Case No. 238/2024 for violation of the provisions of Section 50, CrPC (47 BNSS) and the law laid down by the Hon’ble Supreme Court in the cases of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254, Vihaan Kumar Vs. State of Haryana & Anr., reported in (2025) SCC OnLine SC 269 and Asish Kakkar Vs. UT of Chandigarh, decided on 25-03-3035 in Criminal Appeal No. 1518/2025. 13. From the records of the case, it is also seen that on 11.06.2024 due Notice under Section 50 of the CrPC was issued upon the petitioner that was duly received by him acknowledging the same, which is as follows – NOTICE TO THE ARRESTEE U/S- 50 Cr.PC Ref: Barpeta PS Case No. 238/24 U/S-376-AB R/W Sec 4 of POCSO Act. To, Ganesh Saha (42Y) S/O- Lt. Gobinda Saha Vill- Pakabetbaripam PS- Barpeta Dist- Barpeta (Assam) You are hereby informed that you are under arrest in connection with above noted reference case is Non-Bailable to Police. So, you are forwarded to the Court. You may submit petition before Hon’ble Court for your bail. I/O of the Case S/D- Illegible SI(P) Jagriti Daimari Barpeta PS Dt- 11/06/2024 Signature of Arrestee: S/D- Ganesh Saha 14. From the above it can be seen that said Notice under Section 50 CrPC that was issued and served on 11.06.2024 contains details of the Police Station, the relevant Case Number of the Page No.# 5/8 concerned Police Station, the penal Sections under which provision he was arrested and that the said case is non-Bailable by police and therefore he had been forwarded to the Court and that he may submit petition before the Court for his bail. 15. This shows that the Investigating Officer of said Barpeta P.S. Case No. 238/2024 has complied with the requirements of Section 50 CrPC, communicating the petitioner with the particulars of the offence under Section 376(AB) IPC read with Section 4 of the POCSO Act for which he has been arrested that is non-Bailable, informing him further that he may approach the Court for his bail. 16. Moreover, from the case records it is also seen that the concerned Investigating Officer of said Barpeta P.S. Case No. 238/2024 on 11.06.2024 also served notice to the Guardian (as required under Section 50A of the CrPC) to one Madan Saha, brother of the accused petitioner, informing him about the arrest of the petitioner on 11.06.2024 in said Barpeta P.S. Case and that the petitioner will be produced before the Hon’ble Court within 24 hours. It is also seen that said Madan Saha, guardian of the petitioner duly received the said Notice. 17. From the above, it is seen that the Investigating Officer of Barpeta P.S. Case No. 238/2024 while arresting the petitioner on 11.06.2024 duly complied with the provisions of Sections 50/50A of the CrPC and did not violate Article 22 of the Constitution and thereby followed the observations laid down by the Hon’ble Supreme Court in the cases of Prabir Purkayastha (Supra) and Vihaan Kumar (Supra). 18. At this stage, Mr. Ali, learned counsel appearing for the petitioner submitted that the petitioner was arrested on 11.06.2024 and was forwarded and placed before the learned Special Judge (POCSO), Barpeta in said Barpeta P.S. Case No. 238/2024 on 11.06.2024 itself, but the charge-sheet in said Barpeta P.S. Case was submitted on 10.09.2024, after completion of mandatory requirement of custody of 90 days. In that regard, Mr. Ali placed the petitioner’s first forwarding dated 11.06.2024 (Annexure-2 to this bail application) and the charge-sheet dated 10.09.2024 (Annexure-4 to this bail application). Mr. Ali, learned counsel relied on the decision of the Hon’ble Supreme Court in the case of Rakesh Kumar Paul -Vs- State of Assam reported in (2017) 15 SCC 67. 19. On the other hand, in this issue, Mr. B Sharma, learned APP, Assam placed the decisions of the Hon’ble Supreme Court in the cases of Sanjay Dutt -Vs- State through CBI, Bombay Page No.# 6/8 reported in (1994) 5 SCC 410, Uday Mohanlal Acharya -Vs- State of Maharashtra reported in (2001) 5 SCC 453, and Bikramjit Singh -Vs- State of Punjab reported in (2020) 6 SCC 616 submitted that in the case of Rakesh Kumar Paul, bail application of the petitioner was pending and the charge-sheet was filed after 60 days. Mr. Mr. Sharma, learned APP, Assam submitted that in the case in hand, there was no such bail application of the petitioner that was pending till the date of filing of the charge-sheet in the case on 10.09.2024. Therefore, Mr. Sharma submitted that considering the decisions of the Hon’ble Supreme Court in the cases of Sanjay Dutt (Supra), Uday Mohanlal Acharya (Supra) and Bikramjit Singh (Supra) submitted that as there was no such bail application of the petitioner was pending on 10.09.2024 at the time of filing of the charge- sheet in said Barpeta P.S. Case No. 238/2024, therefore at such a belated stage, while the trial of the case is going on, the petitioner is not entitled to claim for his default bail. 20. On being enquired, Mr. Ali, learned counsel appearing for the petitioner submitted that he has no instruction regarding pendency of any such bail application of the petitioner at the time of filing of charge-sheet in the case on 10.09.2024. 21. It is seen from the records of the case that after filing the charge-sheet in the case on 10.09.2024, cognizance in said Special (POCSO) Case No. 136/2024 arising out of Barpeta P.S. Case No. 238/2024 was taken on 17.09.2024 under Section 376 AB IPC read with Section 6 of the POCSO Act. 22. From the records of the case, it is also seen that from the date of first production of the accused petitioner on 13.06.2024, bail application was filed on his behalf on 14.10.2024 only, i.e., the date on which said Special (POCSO) Case No. 136/2024 was fixed for consideration of charge. On said 14.10.2024, the learned Special Court (POCSO) issued notice to the informant, legal representative of the victim pertaining to said bail application of the accused petitioner, fixing the matter on 28.10.2024. But as on 28.10.2024 service of notice on the informant did not return, fresh notice was issued to the informant of the case and the matter was fixed on 11.11.2024. On 11.11.2024, the learned Special Judge (POCSO), Barpeta rejected the bail application of the petitioner in said Special (POCSO) Case No. 136/2024. 23. On perusal of the case records, it is seen that there are prima facie materials against the petitioner regarding his involvement in the alleged crime. It is also seen that there are no violations of the provisions of Sections 50 & 50A of the CrPC as well as the provisions of Article 22 Page No.# 7/8 of the Constitution. 24. Relying on the Constitution Bench decision of the Hon’ble Supreme Court in the case of Sanjay Dutt (supra) and finding no such bail application of the petitioner pending at the time of filing of charge-sheet in the case on 10-09-2024, the case of the petitioner for his default bail also cannot be considered. 25. 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. 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. 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.” 26. In the case in hand, as per the records of Special (POCSO) Case No. 136/2024 available up to 28.02.2025 we have seen that the petitioner was arrested on 11.06.2024, produced before the learned Special Judge (POCSO), Barpeta after his arrest on 11.06.2024 itself, charge-sheet in Page No.# 8/8 the case was submitted on 10.09.2024 and cognizance of the offence under Section 376 AB IPC read with Section 6 of the POCSO Act was taken on 17.09.2024. Considering the above, it cannot be said that the right of the accused petitioner to have the speedy trial of the case has been infringed. 27. For the reasons above and considering the materials in the case records, the Court is of the opinion that detention of the petitioner in custody since 11.06.2024 cannot be considered for his bail in said Special (POCSO) Case No. 136/2024 arising out of Barpeta P.S. Case No. 238/2024. 28. Accordingly, this bail application of the petitioner, namely, Ganesh Saha @ Tendal, in said Special (POCSO) Case No. 136/2024 arising out of Barpeta P.S. Case No. 238/2024, stands rejected. 29. The Court appreciates the service rendered by Ms. Priyanki Das, learned Amicus Curiae appearing on behalf of the respondent No.2/informant of the case in adjudication of this bail application. The Gauhati High Court Legal Services Committee shall pay the remuneration, to Ms. Priyanki Das on raising a bill by her. JUDGE Comparing Assistant