Page No.# 1/5 GAHC010046712025 2025:GAU-AS:6221 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./670/2025 RAJESH PAIN S/O- AMAL CH DAS, R/O- VILL- NAYACHARA PT III, PS AND DIST- KOKRAJHAR (BTR), ASSAM VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:BIREN CH. BARMAN S/O MIRIK CH. BARMAN R/O GHILAGURI NARAYANPUR P.S. AND DIST. BONGAIGAON ASSAM PIN-73380 MOBILE NO. 813483570 Advocate for the Petitioner : MR. M KHAN, MS J AKTAR Advocate for the Respondent : PP, ASSAM, MR. A RAHMAN (R-2) Page No.# 2/5 BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK 19/05/2025 Heard Ms. J Aktar, learned counsel for the petitioner and Mr. B Sarma, learned Additional Public Prosecutor, Assam for the State respondent No. 1. Also heard Mr. A Rahman, learned counsel for the respondent No. 2/informant of the case, father of the victim girl. 2. The petitioner, namely, Rajesh Pain, son of Amal Ch. Das, resident of Village-Nayachara Pt- III, P.S. & District-Kokrajhar (BTR), has filed this application under Section 483 of BNSS, 2023, on 03.03.2025, praying for his bail in Special (POCSO) Case No. 9(BGN)/2025 arising out of Bongaigaon P.S. Case No. 357/2024 registered under Section 64(2)(f) of BNS, 2023 read with Section 6 of POCSO Act, wherein he was arrested on 31.10.2024 and is in custody since then. 3. The contention of the petitioner herein is that considering his length of detention since 31.10.2024, he should be considered for his bail in said Special (POCSO) Case No. 9(BGN)/2025 arising out of Bongaigaon P.S. Case No. 357/2024. 4. It is also contended by the petitioner that since the trial of the case has already begun after filing of the charge-sheet in said Special (POCSO) Case No. 9(BGN)/2025, there is no chance of hampering/tampering of the evidences by the accused petitioner and as such, he has prayed for his bail in said Special (POCSO) Case No. 9(BGN)/2025 arising out of Bongaigaon P.S. Case No. 357/2024. 5. By order dated 10.03.2025, records of Special (POCSO) Case No. 9(BGN)/2025 was called for from the Court of learned Special Judge (POCSO)-cum-Sessions Judge, Bongaigaon. 6. Petitioner is the own brother-in-law of the victim girl. 7. As per the FIR dated 31.10.2024 lodged before the Officer-in-Charge of Bidyapur Police Outpost by the respondent No. 2/informant, the case is that his eldest son-in-law had forceful sexual intercourse with his minor daughter aged about 17 years by threatening her and thereby she became pregnant for about 2/3 months and on coming to know about the same, the Child Unit of Bongaigaon recovered the victim girl. The said FIR dated 31.10.2024 was initially registered as Bidyapur Outpost G.D. Entry No. 565 dated 31.10.2024 and on being forwarded to the Bongaigaon Police Station, it was registered as Bongaigaon P.S. Case No. 357/2024 under Section 64(2)(f) of BNS, 2023 read with Page No.# 3/5 Section 6 of POCSO Act. 8. The petitioner was arrested on 31.10.2024 and was produced before the learned Special Judge (POCSO)-cum-Sessions Judge, Bongaigaon on the same date. 9. After completion of the investigation of the case, police submitted the charge-sheet in said Bongaigaon P.S. Case No. 357/2024 on 27.11.2024 vide Charge-Sheet No. 248/2024 under Section 64(2)(f) of BNS read with Section 6 of the POCSO Act against the petitioner of committing such crime against the minor victim girl. 10. It is seen from the records of the case that police during investigation of the case seized the original birth certificate of the victim girl issued by the Registrar of Births and Deaths, Senior Medical Officer, Balajan Public Health Center, District-Kokrajhar on 07.08.2007 indicating the date of birth of the minor victim girl as 08.07.2007. 11. During her statement under Section 183 BNSS recorded by the learned Sub-Divisional Judicial Magistrate, Bongaigaon on 02.11.2024, the victim girl stated that she is about 17 years old and that the petitioner, who is her own brother-in-law, used to have regular physical relation with her for about one year for which she became pregnant of about 5/6 months. The victim girl was medically examined on 01.11.2024 and she was found pregnant of 33 weeks and 2 days. The Doctor found that considering her pregnancy of 33 weeks and 2 days, the last physical relation could have been in the month of March, 2024 and/or minimum of 7 months back. Considering the same and the date of birth of the victim girl as 08.07.2007, it can be seen that at the time of the incident, the victim girl was less than 17 years of age and just above 16, as such, a minor under the provisions of the POCSO Act. 12. It is seen that the Court of learned Special Judge (POCSO), Bongaigaon on 05.03.2025 framed charge under Section 64(2)(f) of BNS, 2023 read with Section 6 of POCSO Act. 13. Ms. Aktar, learned counsel for the petitioner placed the certified copy of the evidence of the victim girl recorded on 13.05.2025 as PW2 in which she indicated that she is having a 6 months old boy child from the side of the petitioner. 14. During her cross-examination by the defence on behalf of the petitioner, she stated that she was having a love affair with her own brother-in-law and had physical relation with him with her own consent and that the date of birth mentioned in the birth certificate has been wrongly mentioned and that her father before lodging the FIR of the case did not consult with her. Page No.# 4/5 15. Mr. Rahman, learned counsel for the respondent No. 2/informant submitted that the informant does not have any objection if the petitioner is released on bail, he being his eldest son-in- law. 16. On perusal of the records of the case as well as his arrest memo and first forwarding report, it is seen that at the time of arrest of the petitioner, he was 31 years old and father of two children, whereas, the victim girl as per the birth certificate and medical report was 17 years old (less than 17 years). 17. It is seen that as per the charge-sheet dated 27.11.2024, there are 7 nos. of prosecution witnesses out of which the prosecution has adduced 2 of its witnesses, who were thoroughly cross- examined by the defence. 18. 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, 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.” 19. 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.” 20. After hearing the learned counsels for the parties and considering the materials available in the case records as well as the decision of the Hon’ble Supreme Court in the case of X -Vs.- State of Rajasthan (Supra), the Court is of the view that the detention of the petitioner since 31.10.2024 Page No.# 5/5 cannot be considered for his bail in said Special (POCSO) Case No. 9(BGN)/2025 as it is found that the right of the accused petitioner to have a speedy trial has not been infringed. 21. Accordingly, this bail application of the petitioner, Rajesh Pain, son of Amal Ch. Das, in said Special (POCSO) Case No. 9(BGN)/2025 arising out of Bongaigaon P.S. Case No. 357/2024 pending before the Court of learned Special Judge (POCSO)-cum-Sessions Judge, Bongaigaon stands rejected. JUDGE Comparing Assistant