The Gauhati High Court dismissed an application for anticipatory bail in connection with rape and POCSO charges where the child victim was over 13 years old. The Court held that Section 438(4) Cr.P.C. bars such bail in such cases.
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.
Page No.# 1/3
GAHC010114972022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1618/2022
AFAZ UDDIN AND 2 ORS. S/O LATE SADAR ALI PERMANENT RESIDENT OF VILL- FAKALI PATHAR P.S. JURIA, DIST. NAGAON, ASSAM
2: ABDUL MOZID @ ABDUL MOZIT S/O LATE SADAR ALI PERMANENT RESIDENT OF VILL- FAKALI PATHAR P.S. JURIA
DIST. NAGAON ASSAM
3: INAMUL HOQUE S/O AFAZ UDDIN PERMANENT RESIDENT OF VILL- FAKALI PATHAR P.S. JURIA
DIST. NAGAON ASSA VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM
Advocate for the Petitioner : MS S S ZIA
Advocate for the Respondent : PP, ASSAM
Page No.# 2/3
BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
01.09.2022
Heard Ms. S. Zia, learned counsel for the petitioners. Also Heard Mrs. S. H. Borah, learned Addl. Public Prosecutor, Assam appearing for the State respondent.
This petition under Section 438 Cr.P.C., is filed for granting the privilege of pre-arrest bail to the petitioners, namely, 1. Afaz Uddin 2. Abdul Mozid @ Abdul Mozit 3. Inamul Hoque, apprehending their arrest in connection with Juria P.S. Case No. 203/2022 registered u/s 376(3) IPC read with Section 4 of POCSO Act .
The Case diary, as called for, is placed before the Court.
The F.I.R. reveals the allegation of rape upon the victim girl, who is aged about 11 years by the FIR named accused petitioner No.1.
As per the Birth Certificate, the date of birth of the victim girl is 07.01.2009 and as such, her age on 24.05.2022, that is, on the date of occurrence was 13 years 4 months.
The petitioners are named in the F.I.R. The victim in her statements recorded under Sections 161 and 164 Cr.P.C. has implicated the petitioners.
In view of the bar in Section 438(4) Cr.P.C., no anticipatory bail is maintainable in the backdrop of facts.
Hence, the pre-arrest bail stands dismissed.
Return the case diary.
Page No.# 3/3
This disposes of the anticipatory bail application.
JUDGE
Comparing Assistant
1 issue framed by the court
Whether anticipatory bail is maintainable under Section 438 Cr.P.C. given the serious nature of POCSO allegations.
2 provisions across 1 enactments
Afaz Uddin and 2 Ors.
The State of Assam (represented by the PP, Assam)
Ajit Borthakur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
