Allowed

Abul Hussain v. the State of Assam

Gauhati HC11 Aug 2021AB/996/2021

Case brief

AI extract

What is this about?

The Gauhati High Court granted anticipatory bail to a petitioner remotely implicated in a POCSO case involving his son. The judgment noted the delay in FIR filing and evidence inconsistencies, concluding that bail would not hinder the investigation.

What did the court decide?

The petitioner shall be released on pre-arrest bail upon arrest by furnishing a bond of Rs. 25,000/- with one surety, subject to specific conditions.

Abul Hussain Vs the State of Assam — Child Sexual Offences (POCSO) | Gauhati HC (2021)

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GAHC010056482021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : AB/996/2021

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ABUL HUSSAIN

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S/O LT. OSIMUDDIN, R/O VILL-KHULABANDHA, P.S.-KACHUMARA, DISTBARPETA, ASSAM

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VERSUS

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THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

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Advocate for the Petitioner : MR. S U AHMED

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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11.08.2021

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Heard Mr. S. U. Ahmed, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Addl. Public Prosecutor, Assam appearing for the State respondent and Ms. M.R. Devi, learned counsel for the informant.

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This second petition under Section 438 Cr.P.C., is filed for granting the

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privilege of pre-arrest bail to the petitioner, namely Abul Hussain apprehending arrest in connection with Kachumara P.S. Case No. 175/2020 u/ss 365/376/420/34 of the IPC added Sections 120B/366A of the IPC r/w Section 6 of the POCSO Act.

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The Case diary, as called for, is placed before the Court.

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The earlier pre-arrest bail application of the petitioner was rejected by this Court vide order, dated 25.02.2021, passed in A.B. No. 205/2021.

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Mr. S. U. Ahmed, learned counsel for the petitioner, submits that the petitioner is the father of the prima accused Abdul Wahidur Rahman, who is a government employee and aged about 56 years. Mr. Ahmed submits that the petitioner’s said son has love relationship with the victim minor girl, aged about 17 years, and both the families are waiting for their marriage on her attaining the age of marriage. According to Mr. Ahmed, both the prime accused and the victim girl eloped on their own on 09.05.2020 and after inordinate delay, the F.I.R. was filed before the S.P., Barpeta on 04.12.2020 and after further long delay, the victim’s statement under Section 164 Cr.P.C. was recorded on 12.01.2021 which show the falsity of the allegation against the present petitioner, who was not even remotely concerned with the alleged incident.

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Mr. P. Borthakur, learned Addl. Public Prosecutor, submits that the case diary reveals love relationship between the petitioner’s son and the victim 17-year-old girl. Mr. Borthakur also submits that the case diary indicates social settlement of the incident by creating an agreement that they would marry when the victim attains majority and so far the petitioner’s case is concerned, there is just a reference that he instigated his son to rape her. The medical report, however, does not support the victim’s allegation.

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Ms. M.R. Devi, learned counsel for the informant/respondent No. 2 has admitted the basic facts/pleas raised by the petitioner with reference to the averments of the affidavit filed.

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The F.I.R. reveals the allegation that the informant’s minor daughter was kidnapped forcefully on 08.05.2020 at about 1.00/1.30 noon and was taken to the house of the FIR named accused No. 2. It is alleged that there, the FIR named accused No. 1 committed forceful sexual intercourse on the victim at night. After the incident, the FIR named accused No. 3, i.e., the father of the accused No. 1 promised to perform marriage of the victim with the accused No. 1 when the victim becomes major. In this regard, the accused No. 3 also executed a Declaration before the Notary, Barpeta on 19.05.2020 and both the father of the victim and the accused executed it. But later on, the accused No. 2 and 3 with a criminal intention to cheat the informant and the victim, performed the marriage of the accused No. 1 with another lady and thereby, they have spoiled the life of the victim girl.

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On meticulous scrutiny of the case diary including the statements of the alleged victim girl, recorded under Sections 161 and 164 Cr.P.C. it transpires that basically the said incident occurred between the victim and the petitioner’s son and others and the petitioner is roped into it by one implicating sentence of instigation in her aforesaid statement under Section 164 Cr.P.C. On careful consideration of the multiple aspects of the case touching the role of the petitioner as have come in the evidence so far collected, this Court is of the opinion that if the privilege of pre-arrest bail is granted to the petitioner, the ongoing investigation in the case is unlikely to be hindered in any manner.

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Therefore, it is provided that in the event of arrest, the petitioner, named above, shall be released on pre-arrest bail, in connection with the above noted

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case on furnishing bail bond of Rs. 25,000/- (Rupees Twenty Five Thousand) with one surety of like amount to the satisfaction of the arresting authority, subject, of course, to the following conditions:

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(i) That the petitioner shall appear before the Investigating Officer within 7 days, failing which on the 8^th day, this pre-arrest bail order shall automatically come to an end; and

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(ii) That the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

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Return the case diary.

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This disposes of the anticipatory bail application.

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JUDGE

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Comparing Assistant

Abul Hussain v. the State of Assam

Case brief

What is this about?

What did the court decide?

Abul Hussain v. the State of Assam

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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