Page No.# 1/6 GAHC010039492025 2025:GAU-AS:4784 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./567/2025 MAINUL HOQUE ISLAM @ MD MAINUL ISLAM @ HOQUE S/O MD. NUR JAMAL R/O MORNOI GAON P.S. BIHPURIA DIST.LAKHIMPUR, ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP BY THE PP, ASSAM 2:MD NUR HUSSAIN S/O MD. ABDUL MALEK R/O DAULATPUR P.S. BIHPURIA DIST. LAKHIMPUR ASSA Advocate for the Petitioner : MS. S G BARUAH, MR. B BORGOHAIN,MR B SAIKIA,MR. S NEOG Advocate for the Respondent : PP, ASSAM, MS ASFIA AHMED (R-2),MAHIBUR RAHMAN (R-2) Page No.# 2/6 BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 22.04.2025 Heard Ms. S G Baruah, learned counsel for the petitioner and Mr. B Sharma, learned Additional Public Prosecutor, Assam for the State. Also heard Mr. M Rahman, learned counsel appearing for the respondent No. 2/informant of the case. 2. The petitioner, namely, Mainul Hoque Islam @ Md. Mainul Islam @ Hoque, son of Md. Nur Jamal, resident of village-Mornoi Gaon, P.S.-Bihpuria, District-Lakhimpur has filed this application under Section 483 BNSS, praying for his bail in Special (POCSO) Case No. 109/2024 arising out of Bihpuria Police Station Case No. 165/2024 corresponding to G.R. No. 766/2024, in which charge under Sections 366/376 IPC read with Section 6 of the POCSO Act was framed against him on 18.11.2024 and the matter is presently pending before the Court of the learned Special Judge (POCSO), Lakhimpur, North Lakhimpur in the trial stage. 3. It is contended by the petitioner that the victim girl who is more than 17 years of age was having love affair with him and on the date of the incident there was a marriage ceremony of their relative at Moricha Pathar, to which he took her with him and did not commit any such act as alleged in the FIR. It is also stated that as the victim girl was less than 18 years of age he did not marry her at that stage and the informant after more than 5 months of the alleged incident lodged the FIR of the case, more so, when the eldest daughter of the informant had left her matrimonial home. 4. The petitioner also stated that he has already agreed to marry the victim girl and to that extent, an agreement was also entered into between them. 5. Ms. Baruah, learned counsel for the petitioner has submitted that in the meanwhile, prosecution has recorded the evidence of four of its witnesses including the informant and Page No.# 3/6 the victim girl. 6. From the evidence of the prosecution witnesses so far recorded, Ms. Baruah also pointed out certain discrepancies. Considering all these, Ms. Baruah has prayed for bail of the petitioner on any stringent conditions that may be imposed by the Court while granting bail to the accused petitioner. 7. The Court by order dated 03.03.2025 called for the scanned legible copy of the records of said Special (POCSO) Case No. 109/2024 from the Court of the learned Special Judge (POCSO), Lakhimpur, North Lakhimpur along with the copy of the records of Bihpuria P.S. Case No. 165/2024. 8. It is seen that the FIR of the case was lodged by the informant on 24.09.2024 alleging that on 05.04.2024 in the morning around 6:30 AM the accused petitioner took away his minor daughter aged about 17 years to the house of his maternal uncle at Moricha Pathar and forcefully raped her and also threatened her that if she reveals the same to others, she will be killed by him. In the said FIR dated 24.09.2024 it was also alleged by the informant that in his absence the accused petitioner came to his house and on two occasions he had committed rape on his minor daughter. Further, the accused petitioner called upon the grandfather of the victim girl on phone and handed over her to him and thereby sent her to her residence from Moricha Pathar. 9. Said FIR dated 24.09.2024 was accordingly registered as Bihpuria Police Station Case No. 165/2024 under Sections 366/376 IPC read with Section 6 of the POCSO Act. 10. It is seen that the petitioner was arrested on 25.09.2024 in said Bihpuria P.S. Case No. 165/2024 and is in custody since then. 11. From the records of the case, it is seen that during investigation of the case statement of the victim girl under Section 183 BNSS was recorded on 25.09.2024 by the learned Judicial Magistrate First Class, North Lakhimpur, Lakhimpur and she was also medically examined at Lakhimpur Medical College and Hospital on 25.09.2024. Further, during investigation of the case, police seized the original birth certificate of the victim girl registered on 08.12.2006 and issued on 10.02.2007 by Senior Medical and Health Officer, Registrar of Births and Deaths, Page No.# 4/6 Lakhimpur Hospital, indicating the date of birth of the victim girl as 27.11.2006. As such, on the date of the incident on 05.04.2024, the victim girl was aged about 17 years 4 months. 12. In her statement under Section 183 BNSS before the learned JMFC, Lakhimpur, North Lakhimpur, the victim girl implicated the petitioner that he forcefully took her away to Moricha Pathar, though he stated that he shall take her for a ride only. At Moricha Pathar the petitioner took her to the house of his maternal uncle, wherein she was confined in a room and was subjected to forceful sexual intercourse by the petitioner. 13. The victim girl also stated before the learned Magistrate that the accused petitioner threatened her that if she reveals the incident of rape to others, she will be killed by him. As her father lives away from their house, the accused petitioner also committed rape on her on two occasions in her own house. But out of fear she could not do anything. On the third occasion, when he again tried to do such illegal act, her mother and she resisted. Then he threatened them that the marriage of her elder sister shall be interfered by him. She stated that her elder sister with her brother-in-law stays near the house of the accused petitioner. She further stated that her elder sister was thrown out of her house because she did not bear any child to her brother-in-law for 3 years. Therefore, the father of the victim girl lodged the FIR of the case as on earlier occasions he did not lodge the FIR to the incident out of fear that it might cause disturbance in the marital life of her elder sister. 14. It is seen from the records of the case that police after completion of investigation of the case submitted charge-sheet on 30.09.2024 against the petitioner under Sections 366/376 IPC read with Section 6 of the POCSO Act and on 18.11.2024 charge under Sections 366/376 IPC read with Section 6 of the POCSO Act was framed against the petitioner in said Special (POCSO) Case No. 109/2024. 15. It is also seen that as on 18.03.2025, evidence of four prosecution witnesses have already been recorded by the learned trial Court, i.e., the Court of learned Special Judge (POCSO), Lakhimpur, North Lakhimpur in said Special (POCSO) Case No. 109/2024, including the informant, the victim girl, her elder sister as well as the concerned Doctor of Lakhimpur Medical College & Hospital, Lakhimpur who medically examined the victim girl on 25.09.2024. 16. The accused petitioner was of 24 years of age at the time of the incident, whereas the Page No.# 5/6 victim girl was 17 years old. 17. 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, dacioty 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.” 18. Their Lordships in said X -Vs.- State of Rajasthan further held that — “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.” 19. After hearing the learned counsels for the parties and considering the decisions of the Hon’ble Apex Court, noted above, this Court found that the right of the accused petitioner to have speedy trial has not been infringed and his detention since 25.09.2024 cannot be considered for his bail in said Special (POCSO) Case No. 109/2024. 20. Accordingly, for the reasons above, the bail of the petitioner, Mainul Hoque Islam @ Md. Mainul Islam @ Hoque, in said Special (POCSO) Case No. 109/2024 arising out of Bihpuria Police Station Case No. 165/2024 pending before the Court of the learned Special Judge (POCSO), Lakhimpur, Lakhimpur, stands rejected at this stage. 21. It is made clear that the learned Trial Court while adjudicating the said Special Page No.# 6/6 (POCSO) Case No. 109/2024 arising out of Bihpuria P.S. Case No. 165/2024 shall not be influenced by any of the observations or findings, made hereinabove in this bail application. JUDGE Comparing Assistant