Allowed

Manish Gattani and Anr. v. the State of Assam

Gauhati HC1 Feb 2022AB/85/2022

Case brief

AI extract

What is this about?

High Court granted pre-arrest bail to petitioners in a POCSO case. Court held that no injury was detected in the medical report, two eye-witnesses did not support accusations, and evidence suggested the incident was due to rivalry.

What did the court decide?

Grant of pre-arrest bail on furnishing bond of Rs. 15,000 each with suitable surety on conditions to appear before IO and not hamper investigation.

Manish Gattani and Anr. Vs the State of Assam — Child Sexual Offences (POCSO) | Gauhati HC (2022)

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GAHC010005242022

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

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Case No. : AB/85/2022

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MANISH GATTANI AND ANR. S/O SRI SHYAM SUNDAR GATTANI, R/O BABUPATTY, P.O. AND P.S.JORHAT, DIST- JORHAT, ASSAM, PIN-785001

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2: NAWABUDDIN ANSARI S/O LATE HABIBULLAH ANSARI R/O ROYAL ROAD P.O. AND P.S.-JORHAT DIST- JORHAT ASSAM PIN-78500 VERSUS

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THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

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Advocate for the Petitioner : MR. T K MISRA

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Advocate for the Respondent : PP, ASSAM

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B E F O R E

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HON’BLE MR. JUSTICE HITESH KUMAR SARMA

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01-02-2022

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The Court proceedings have been conducted through VideoConference due to Covid-19 pandemic.

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This is an application, filed under Section 438 of the Cr.PC.

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seeking pre-arrest bail of the accused-petitioners, namely, 1) Manish Gattani, and 2) Nawabuddin Ansari, in connection with Jorhat Police Station Case No.2505/2021 registered under Sections 506/500 of the Indian Penal Code, read with Section 12 of the POCSO Act.

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Heard Mr. T.K. Misra,, learned counsel for the petitioners. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam appearing for the Respondent State.

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The fact of the case, as appears from the FIR dated 12.11.2021, is that on 2^nd and 3^rd November, 2021, taking advantage of absence of any person, the younger son of the informant, aged about 11 years, was sexually assaulted by Sri Manish Gattani, Nabab Uddin Ansari and Gautam Ghosh. It has also been stated that the video of removing the pant of the victim by accused Nabab Uddin Ansari was captured in the camera.

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It has been submitted by the learned counsel for the petitioners that no non-bailable offence under Section 12 of the POCSO Act has been made out in the instant case on the basis of the facts indicated in the FIR itself. It has further been submitted that the case is the outcome of a long standing business rivalry and a acrimonious relationship between the petitioner No.1 and the informant, i.e. the father of the victim. It has further been submitted that the instant FIR has been lodged on 12.11.2021 although another FIR was lodged by the informant of the instant case against the petitioners on fabricated allegation on 11.11.2021 i.e. one day prior to the lodging of the present FIR, alleging, inter alia, that the present petitioners, one Shri Tapan Kalita and one Shri Akash

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Bora, had stolen number of crackers from his shop at the time of Diwali. It was also alleged in the FIR dated 11.11.2021 that while the petitioner No.1 was confronted by the informant as regards stealing of the crackers, he was assaulted physically in front of all persons. The Jorhat Police Station Case No.2498/2021 under Sections 380/323/506/34 of the Indian Penal Code was registered against the petitioners in relation to the said allegations. It has further been averred in the petition as well as submitted that in respect to the said incident dated 11.11.2021, the present petitioners had filed an FIR to the FIR of the informant with the Jorhat Police Station.

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There are some other allegations also made against the informant of this case by the petitioners in the statements made in this bail application. The learned counsel for the petitioners has also submitted that in respect of the case registered on the basis of the FIR dated 11.11.2021, referred to above, the petitioners were granted pre-arrest bail under Section 438 of the Code of Criminal Procedure by the learned Additional Sessions Judge, Jorhat, vide order dated 11.1.2022 passed in Misc. Crl. Case No.515 of 2021, copy of which has been placed before this Court during the course of hearing.

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This is the second application for pre-arrest bail of the petitioners. Their first such bail application was rejected by this Court, vide order dated 17.12.2021 passed in A.B. No.3933/2021. It appears from the said rejection order that the order was basically passed on the statement of the victim recorded under Section 164 of the Code of Criminal Procedure implicating the petitioners.

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To a pointed query, learned counsel for the petitioners has submitted

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that there is rivalry between the parties and that another FIR was lodged by the present petitioners in respect of the incident dated 11.11.2021, prior to the FIR lodged by the informant of this case. The said facts were not brought to the notice of this Court and the order rejecting the prayer for bail does not reflect that any such facts were considered by this Court earlier. The medical certificate of the victim was also not considered by this Court earlier, as submitted by the learned counsel for the petitioners.

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I have perused the case diary produced. On perusal of the case diary, particularly the medical certificate of examination of the victim as available therein, it is found that there was no evidence of sexual assault and no injury was also detected. It has also come out that although the incident had taken place on 2^nd and 3^rd November, 2011, yet the FIR was lodged on 12.11.2021 and the medical examination of the victim was done on 15.11.2021.

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On perusal of the case diary, it is further found that two eye witnesses to the occurrence are found to be not supporting the accusation leveled against the petitioners. The said two witnesses are found to have stated that the petitioner No.2 had removed the pant of the victim out of fun. It has also come out that such act of fun was done earlier also. There is no instance that any further action which can be treated to be sexual assault is assigned to the present petitioners by the witnesses. Such facts were not brought to the notice of the Court while the matter was taken up for consideration in the earlier bail application.

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Therefore, on consideration of the materials in the case diary, taken together with the medical report, indicated above, this Court is of the view

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that this is a fit case for grant of privilege of pre-arrest bail to the petitioners.

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Accordingly, it is provided that in the event of arrest of the petitioners above named, in connection with the case aforementioned, they shall be released on bail on their furnishing bail bond of Rs.15,000/- each, with a suitable surety each of the like amount, to the satisfaction of arresting authority.

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The direction for pre-arrest bail is subject to the conditions that the petitioners :

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(a) shall appear before the Investigating Officer of concerned Police Station, within ten days from today and shall co-operate with the investigation;

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(b) shall not hamper with the investigation, or tamper with the evidence of the case;

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(c) 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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The petition stands disposed of accordingly.

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Return the case diary.

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JUDGE

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Comparing Assistant

Manish Gattani and Anr. v. the State of Assam

Case brief

What is this about?

What did the court decide?

Manish Gattani and Anr. v. the State of Assam

Case brief

What is this about?

What did the court decide?

What the court decided

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