Page No.# 1/7 GAHC010057062026 2026:GAU-AS:5966 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./841/2026 WAJID HUSSAIN ALIAS MUNNA SO LATE HYDER HUSSAIN, RO BORGURI, ANIRUDDHA DEV NAGAR, PS TINSUKIA, DIST TINSUKIA, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:SMT BIRUSMONI BOURI W/O SHRI BRISHNU BOURI R/O NOKHRAI BASTI UNDER TINSUKIA PS DIST TINSUKIA ASSA Advocate for the Petitioner : MR Z KAMAR, MR S J CHOUDHURY,MR. BISWAJIT TALUKDAR,P D CHOUDHURY Advocate for the Respondent : PP, ASSAM, MR. U CHOUDHURY, LEGAL AID COUNSEL R-2 BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 30.04.2026. Heard Mr. Z. Kamar, learned senior counsel, assisted by Mr. P.D. Choudhury, learned counsel for the accused; Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent No. 1; and Mr. U. Choudhury, learned Page No.# 2/7 Legal Aid Counsel for the informant/respondent No. 2. 2. This application, under Section 483 of the BNSS, is preferred by accused, namely Wajid Hussain @ Munna, who has been languishing in jail hazot in connection with the POCSO Case No. 92(T)/2024, under Section 376(1)/354-A(2) of the IPC read with Section 4 of the POCSO Act, pending before the court of learned Additional Sessions Judge cum Special Judge (POCSO), Tinsukia, arising out of Tinsukia PS Case No. 107/2024, under Section 376 of the IPC read with Section 4 of the POCSO Act, for granting bail. 3. The gravamen of the allegation against the accused, which has been alleged in the FIR of Tinsukia PS Case No. 107/2024, is that on 07.04.2024, at about 09:00 am, he asked the informant to accompany him to his house for carnal relation and assured her to pay for the same and then, she reported the matter to his wife. Thereafter, her sister, Smti 'X' (name withheld), aged 17 years, informed her that about 15 days back, the accused forcefully took her to his house, from Simulguri, in a vehicle and established carnal relation with her for about 15 minutes and thereafter, he left her at bypass. 4. Mr. Kamar, learned counsel for the accused, firstly, submits that this is the third bail application, preferred by the accused, on the ground that while dismissing the earlier bail applications, on 27.01.2025 & 17.09.2025, this Court had directed the learned trial court to make an endeavor to complete the trial as soon as practicable. But, despite such observation, the learned trial court could not dispose of the same and that the accused is behind the bar since 15.06.2024 and his right to speedy trial is violated. 4.1. Secondly, Mr. Kamar submits that the vital witnesses have already been examined and there remains to examine only the police officials and as such, there is no question of tampering the witnesses. Page No.# 3/7 4.2. Thirdly, on merit of the case, Mr. Kamar submits that the victims turned hostile and they have not implicated the accused with the offence and that the age of the victims is also above 18 years and that the trial was delayed due to no fault of the accused. And under such circumstances, Mr. Kamar has contended to allow this application. 5. Per-contra, Mr. Borthakur, learned Additional Public Prosecutor, has vehemently opposed the petition. He submits that this application has been filed without assigning any new and good ground, while the first and second application were dismissed by this Court on 27.01.2025 & 17.09.2025. 5.1. Mr. Borthakur further submits that the scanned copy of the record indicates that as many as 8 witnesses have examined so far and that though the victims turned hostile, yet this Court is not entitled to appreciate the evidence at this stage. Moreover, in the statement, under Section 161 of the CrPC, the victims have implicated the accused with the charges. 5.2. Mr. Borthakur also submits that the accused is a habitual offender and that in respect of similar offences, he was arrested earlier. Mr. Borthakur further submits that the accused is an employee of the office of the Deputy Commissioner, Tinsukia and there is every likelihood of influencing the witnesses and under such circumstances, Mr. Borthakur has contended to dismiss this petition. 6. On the other hand, Mr. U. Choudhury, the learned Legal Aid counsel for the respondent No. 2 (informant), submits that the accused has not assigned any new ground in this third bail application. He further submits that the learned trial court was lying vacant for quite sometimes and now, new presiding officer has been appointed and as such, there is every possibility of conclusion of trial within a short period. 6.1. Mr. U. Choudhury further submits that the accused is an influencing Page No.# 4/7 person, working in the office of the Deputy Commissioner, Tinsukia and that he is a habitual offender and he was arrested earlier in connection with Tinsukia PS Case No. 518/2023, registered under Section 166(A)/342/354-A/506/34 of the IPC read with Section 8/17/18 of the POCSO Act and the said case has been charge-sheeted and thereafter, it has been registered as POCSO Case No. 115(T)/2023 and that in the said case, he was arrested on 01.09.2023 and released on bail on 08.01.2024. 6.2. Mr. U. Choudhury also submits that while the accused was on bail in the said case, he committed the offence of the present case and that he also failed to appear in the earlier POCSO case, for which, Non-Bailable Warrant of Arrest was issued against him and subsequently, he surrendered and he was remanded to the jail hazot. 6.3. Mr. U. Choudhury further submits that the Medical Officer (PW8) also supported the case of the prosecution, though the victims turned hostile. He also submits that the statement of the victims, recorded under Section 161 and 164 of the CrPC, shows the commission of the offence by the accused. 6.4. Mr. U. Choudhury also submits that whether there is evidence or not, against the accused, it has to be decided at the end of the trial, not while considering the bail application and under such circumstances, Mr. U. Choudhury has contended to dismiss this application. 7. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the application as well as the documents placed on record and also perused the scanned copy of the record received from the learned trial court. 8. Indisputably, this is the third bail application, preferred by the accused. The earlier bail applications were dismissed on 27.01.2025 & 17.09.2025. It appears that in the said orders, this Court has asked the learned trial court to make Page No.# 5/7 an endeavor to complete the trial as soon as practicable. But, in spite of such observation, the trial could not be completed. 8.1. However, Mr. U. Choudhury, learned counsel for the respondent No. 2 (informant), has pointed out that the POCSO Court at Tinsukia was lying vacant for sometimes and new incumbent has been appointed very recently and now, the case will proceed in accordance with law. And admittedly, this delay is not attributable to the accused. 8.2. Further, it appears that both the victims turned hostile. But, after declaring them hostile, with permission of the court, the prosecution side had cross-examined both the witnesses and brought the statement on record, made by them, before the IO. 8.3. It also appears that though 8 witnesses have been examined so far, yet it is well settled proposition of law that while considering the bail application, this Court is not entitled to appreciate the evidence so brought on record. 9. Though Mr. Kamar, learned counsel for the accused, submits that he has to argue the case on merit on the basis of the evidence so brought on record, yet to appreciate his submission this Court has to gone through the evidence so brought on record, which is impermissible, in view of the decision of Hon’ble Supreme Court in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and another, reported in (2005) 2 SCC 42 and also in the case of State of Karnataka vs. Sri Darshan etc., reported in (2025) 9 SCR 194. 9.1. In the later case, it has been held that courts must not conduct mini trial or make findings on the merit of the case such as assessing evidence and its credibility on pre-judging acquittal. 9.2. It is also a well settled proposition of law that Section 29 of the POCSO Act is applicable while considering the bail application. Page No.# 6/7 9.3. Though Mr. Kamar has pointed out that the victims are major, yet to appreciate his submission also, this Court has to appreciate the evidence, which is not permissible as held in the preceding paragraph. 9.4. Even for the sake of argument if it is accepted that the victims were major at the time of commission of the offence, yet it appears that besides Section 4 of the POCSO Act, the case has also been registered under Section 376 of the IPC. 10. Further, it appears that the accused is a habitual offender and another case, being POCSO Case No. 115(T)/2023, is pending before the same POCSO Court at Tinsukia, which was registered under Section Section 166(A)/342/354- A/506/34 of the IPC read with Section 8/17/18 of the POCSO Act and while the accused was on bail in the said case, he had committed the offence of the present case. And there is every possibility of committing such offence again if granted bail. Further, he has defaulted in appearing before the court in the said case and for which, Non-Bailable Warrant of Arrest was issued against him. Thus, his conduct also appears to be not at all satisfactory. Though Mr. Kamar, learned counsel for the accused, submits that the accused is not flight risk, yet such submission left this Court unimpressed. 11. There is no dispute regarding the nature and gravity of the offence, which is undoubtedly serious in nature and in view of the involvement of the accused in similar kind of offence and his conduct and also his position, being an employee of the office of the Deputy Commissioner, Tinsukia, this Court is of the view that, at this stage, the privilege of bail cannot be extended to the accused. 11.1. Moreover, out of 12 charge-sheeted witnesses, 8 witnesses have already been examined and only the police officials are remained to be examined and presiding officer has already been appointed in the POCSO Court at Tinsukia Page No.# 7/7 and as such, now, there is every possibility of completing the trial within a short period. 12. Accordingly, the petition stands dismissed. JUDGE Comparing Assistant