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GAHC010189052024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/2492/2024
AMIR HUSSAIN
S/O LATE AFSOR ALI
R/O VILL- DHUPAGURI PATHAR
P.S. DHING
DIST. NAGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP BY THE PP, ASSAM
2:NUR NEHAR BEGUM
W/O SAIFUL ISLAM
R/O VILL- DHUPAGURI PATHAR
P.S. DHING
DIST. NAGAON
ASSAM
PIN NO. 78212
Advocate for the Petitioner : MR. R MAJUMDAR, MR. JUNM LASKAR,MS. J GHOSH
Advocate for the Respondent : PP, ASSAM, MR. S BISWAS, legal aid counsel(R-2)
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BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date :
29.11.2024
Heard Mr. R. Majumdar, learned counsel for the applicant. Also heard Ms. N.
Das, learned Additional Public Prosecutor for the State respondent No. 1 and Mr.
S. Biswas, learned Legal Aid counsel for the respondent No. 2.
2. Apprehending arrest in connection with Dhing P.S. Case No. 170/2023,
under Sections 376/511 of the IPC, read with Section 8 of the POCSO Act, this
application under Section 482, BNSS has been preferred by the applicant,
namely, Amir Hussain, for grant of pre-arrest bail.
3. Notably, Dhing P.S. Case No. 170/2023 has been registered on the basis
of an FIR lodged by one Nur Nehar Begum on 12.09.2023.
4. The gravamen of the allegation made in the FIR dated 12.09.2023, is that
on that day, at about 10 a.m., the applicant herein called the minor daughter of
the first informant, aged about 8 years, to the bank of the pond situated
backside of her house and gave her a sum of Rs. 10/- and asked her to do
indecent work with him and also to open her pant being worn by her, but
somehow, she managed to escape.
5. Mr. Majumdar, learned counsel for the applicant submits that the applicant
is innocent and no way involved with the offence alleged in the FIR and before
filing of the FIR by the first informant, the applicant herein and some other
persons had lodged one complaint against the informant and to wreak
vengeance, the first informant herein lodged the present FIR, and that the
investigation of the case has already been completed and charge-sheet has
been submitted before the learned trial Court and summon has been issued and
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the next date is fixed for service report. Mr. Majumdar also submits that there
was no skin to skin to contact with the victim girl with that of the applicant as
required under Section 7 of the POCSO Act, and that there is material
contradiction in the statement of the victim girl recorded under Sections 161 as
well as 164, CrPC. Mr. Majumdar further submits that the applicant will appear
before the learned trial Court and will face the trial and till the date of his
appearance, he may be granted interim protection and therefore, it is contended
to allow this application.
6. On the other hand, Ms. Das, learned Additional Public Prosecutor, by
referring to the scanned copy of the record received from the learned trial
Court, especially to the statement of the victim girl, recorded under Section 164,
CrPC, submits that the allegations levelled against the applicant are serious in
nature and at this stage, the privilege of pre-arrest bail may not be extended to
the applicant.
7. Mr. Biswas, learned Legal Aid counsel for the respondent No. 2 has also
vehemently opposed the application and by referring to two decisions of Hon’ble
Supreme Court in the cases of Abhishek vs. State of Maharashtra and
Ors., reported in (2022) 8 SCC 282 and Prem Shankar Prasad vs. State
of Bihar and Anr., reported in (2022) 14 SCC 516, Mr. Biswas submits
that since the applicant has not cooperated with the investigating agency and
was absconding and charge-sheet has been submitted against him showing him
as absconder, he has forfeited his right to get the privilege of pre-arrest bail. Mr.
Biswas also submits that of course some contradictions are there in the
statements of the victim girl recorded under Section 161 as well as 164, CrPC
and the weightage has to be given to the statement under Section 164, CrPC,
and that the allegations in the statement under Section 164, CrPC are serious in
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nature and therefore, it is contended to dismiss the application.
8. Having heard the submissions of learned Advocates of both sides, I have
carefully gone through the application and the documents placed on record and
also perused the scanned copy of the record received from the learned trial
Court.
9. It appears that the case was registered under Sections 376/511 of the IPC,
read with Section 8 of the POCSO Act and having gone through the statements
of the victim girl recorded under Sections 161 as well as 164, CrPC, this Court is
unable to agree with the submission of Mr. Majumdar that there was no skin to
skin contact of the applicant with the victim girl. Moreover, that is not the
requirement of Section 7 of the POCSO Act and the submission of Mr. Majumdar,
in this regard, is found to be devoid of substance and misleading. Further, the
statement of the victim girl recorded under Section 164, CrPC indicates that the
allegations are more serious in nature, rather than the allegations made in the
FIR and the statement recorded under Section 161, CrPC.
10. Though, Mr. Majumdar submits that there was dispute between the
informant and the applicant and the applicant had filed a complaint before the
police against the first informant, yet no case has been registered upon the said
complaint and as such, the contention of Mr. Majumdar cannot be taken into
account.
11. I have also gone through the decisions referred by Mr. Biswas, learned
Legal Aid counsel for the respondent No. 2 and it appears that there is
substance in his submission and the decisions referred by him strengthen his
submission.
12. Having considered above and also considering the nature and gravity of
the offence and the punishment prescribed for the same, this Court is of the
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view that this is not a fit case where the privilege of pre-arrest bail can be
granted to the applicant and accordingly, the anticipatory bail application stands
dismissed. The applicant shall have to surrender before the learned trial Court
within a period of 15 days from today.
JUDGE
Comparing Assistant