Page No.# 1/5 GAHC010046852025 2025:GAU-AS:6871 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./743/2025 BIPLAB MANDAL AND ANR S/O GOSHAL MANDAL R/O VILL-NEWLARBHITHA P.S. SARTHERBARI DIST. BARPETA, ASSAM 2: BHUMIDHAR SARKAR S/O KHUSHIMOHAN SARKAR R/O VILL NEWLARBHITHA P.S. SARTHEBARI DIST. BARPETA ASSA VERSUS THE STATE OF ASSAM AND ANR REP BY THE PP, ASSAM 2:KAMINI SARKAR W/O ARJUN SARKAR R/O VILL- ERAMARI P.O. ERABAMUNDI P.S. SARTHEBARI DIST. BARPETA ASSAM PIN-78131 Advocate for the Petitioner : MR. S A AHMED, A. KHANAM,MR. F A AHMED Advocate for the Respondent : PP, ASSAM, MR E AHMED (R-2) Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 28.05.2025 Heard Mr. S A Ahmed, learned counsel for the petitioners and Mr. P Borthakur, learned Additional Public Prosecutor, Assam for the State. Also heard Mr. E Ahmed, learned counsel appearing for the respondent No. 2/informant of the case/mother of the minor victim girl. 2. The petitioners, namely, (i) Biplab Mandal, son of Goshal Mandal, resident of village- Newlarbhitha, P.S.-Sarthebari, District-Barpeta and (ii) Bhumidhar Sarkar, son of Khushimohan Sarkar, resident of village-Newlarbhitha, P.S.-Sarthebari, District-Barpeta have filed this application under Section 483 BNSS, praying for their bail in Special POCSO Case No. 129/2023 arising out of Sarthebari Police Station Case No. 80/2023 under Section 376(DA) IPC read with Section 6 of the POCSO Act, in which they were arrested on 27.04.2023 and are in custody since then. 3. By order dated 17.03.2025, the Court called for the relevant case records. 4. As per the FIR dated 27.04.2023 lodged before the Officer-in-Charge of Sarthebari Police Station, the case is that the minor daughter of the informant on 26.04.2023 after attending her school went to her uncle’s house and had lunch. While returning home from her uncle’s house, the accused petitioners induced her and took her to a field where both of them raped her. Thereafter, both the accused petitioners brought the minor victim girl to the road and leaving her there, fled away from that place. 5. Said FIR of the case was accordingly registered as Sarthebari Police Station Case No. 80/2023 under Section 376(DA) IPC read with Section 6 of the POCSO Act. 6. Petitioners submitted that since 27.04.2023 they are in custody and in the meanwhile evidence of all the vital witnesses have been recorded by the concerned Trial Court including the minor victim girl and as such, their further custodial detention in said Special POCSO Case No. 129/2023 is not warranted. 7. Perused the records of Special POCSO Case No. 129/2023 along with the records of Page No.# 3/5 Sarthebari P.S. Case No. 80/2023. 8. From the records of the case, it is seen that during investigation of the case the statement of the minor victim girl under Section 164 CrPC was recorded by the learned Judicial Magistrate First Class, Barpeta on 27.04.2023, in which she implicated the petitioners. 9. During investigation, police seized the Birth Certificate of the minor victim girl issued by the Registrar of Birth and Death, Sorukhetri Public Health Centre on 10.02.2009 vide Registration No. 59/2009, indicating the date of birth of the minor victim girl as 23.01.2009. 10. Considering the Birth Certificate of the minor victim girl, her age on the date of the incident on 26.04.2023 is found to be only 14 years 3 months, as such a minor on the date of the incident. 11. The petitioners in the meanwhile were arrested on 27.04.2023. 12. After completion of the investigation, Charge-Sheet in said Sarthebari P.S. Case No. 80/2023 was submitted on 20.09.2023 vide Charge-Sheet No. 98(A)/2023 under Section 376(DA) IPC read with Section 6 of the POCSO Act against the petitioners. Thereafter, the said Sarthebari P.S. Case No. 80/2023 has been registered as Special POCSO Case No. 129/2023. 13. Charge under Section 6 of the POCSO Act was framed against the petitioners on 30.08.2023. 14. From the records of the case, it is seen that out of 9 named prosecution witness, prosecution has adduced evidence of 8 of its witnesses, who were thoroughly cross- examined by the defence on behalf of the petitioners. 15. It is seen that evidence of only the Investigating Officer of the case is yet to be recorded. 16. From the charge-sheet of the case, it is seen that the accused petitioner No. 1 was 28 years and the accused petitioner No. 2 was of 22 years at the time of filing of the charge- sheet on 20.09.2023, whereas the minor victim girl was only 14 years of age at the time of Page No.# 4/5 the incident. 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 — “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.” 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 petitioners to have speedy trial has not been infringed. 20. As such, detention of the petitioners since 27.04.2023 cannot be considered for their bail in said Special POCSO Case No. 129/2023 arising out of Sarthebari P.S. Case No. 80/2023. 21. For the reasons above, the bail of the petitioners, (i) Biplab Mandal, son of Goshal Page No.# 5/5 Mandal and (ii) Bhumidhar Sarkar, son of Khushimohan Sarkar, in said Special POCSO Case No. 129/2023 arising out of Sarthebari P.S. Case No. 80/2023 pending before the Court of the learned Special Judge (POCSO) cum Additional Sessions Judge, Barpeta, stands rejected. 22. It is observed that this order relates to bail of the accused petitioners, namely, (i) Biplab Mandal and (ii) Bhumidhar Sarkar, in said Special POCSO Case No. 129/2023 arising out of Sarthebari P.S. Case No. 80/2023 and not on merits of the case, where the trial of said Special POCSO Case No. 129/2023 is presently pending for adjudication before the Court of the learned Special Judge (POCSO) cum Additional Sessions Judge, Barpeta. 23. It is also made clear that the learned Trial Court while adjudicating the said Special POCSO Case No. 129/2023 arising out of Sarthebari P.S. Case No. 80/2023 shall not be influenced by any of the observations or findings, made hereinabove in this bail application. JUDGE Comparing Assistant