In this pre-arrest bail application under Section 438 Cr.PC, the High Court examined the allegations in a case involving the minor victim. Finding that the victim was a minor who could not consent, the court rejected the plea for bail.
Application for pre-arrest bail rejected; prayer for bail of the petitioner denied; case diary returned.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010027172021
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/502/2021
ABADAT KHAN
S/O RAMJAN KHAN, VILL-KAWAIMARI 9 NO. BLOCK, P.S.-SARTHEBARI, DIST-BARPETA, ASSAM
VERSUS
THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. R ALI
Advocate for the Respondent : PP, ASSAM
B E F O R E
HON’BLE MR. JUSTICE HITESH KUMAR SARMA
16-03-2021
This is an application, filed under Section 438 of the Cr.PC. seeking pre-arrest bail of the accused-petitioner, namely, Abadat Khan, in connection with Sarthebari P.S. Case No.361 of 2020 registered under Sections 365/34 of the Indian Penal Code.
Heard Mr. H.A. Ahmed, learned counsel for the petitioner. Also heard Ms. S.H. Borah, learned Additional Public Prosecutor, Assam appearing for the State Respondent.
Case diary produced has been perused including the statements of the victim recorded
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under Sections 161 as well as 164 of the Code of Criminal Procedure. In her statement recorded under Section 161 of the Code of Criminal Procedure, the victim has categorically stated that she eloped with the accused petitioner on her own. That being so, the allegation of alleged kidnapping is not attracted in the instant case.
However, in her statements recorded under Section 164 of the Code of Criminal procedure, she has alleged that the accused petitioner had committed sexual intercourse with her. She is admittedly a girl below 18 years of age. Although the victim was in love with the accused petitioner, yet she cannot accord consent to sexual intercourse, she being a minor.
That being so, in the considered view of this Court, this is not a fit case for grant of privilege of pre-arrest bail to the petitioner.
Accordingly, the prayer for pre-arrest bail of the petitioner is rejected.
Return the case diary.
JUDGE
Comparing Assistant
3 issues framed by the court
Whether the petitioner is entitled to pre-arrest bail under Section 438 Cr.PC given the minor status of the victim.
Whether the victim's admission of elopement and subsequent allegation of non-consensual sexual intercourse precludes bail.
Whether the instant case is a fit case for grant of privilege of pre-arrest bail.
2 provisions across 2 enactments
Abadat Khan
The State of Assam represented by the Public Prosecutor, Assam
Hitesh Kumar Sarma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
