The Gauhati High Court rejected a bail application under Section 439 Cr.P.C. in a POCSO case involving rape and trafficking of minors. The Court held that trial is incomplete and evidence is pending, making bail unsuitable.
Accused to remain in custody; liberty to file fresh bail application at appropriate stage.
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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GAHC010156622022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1943/2022
ASHADUL ISLAM @ HOQUE S/O INNAS ALI R/O KAPAHARTARI P.S. AND DIST. BARPETA, ASSAM
VERSUS
THE STATE OF ASSAM REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. D F A AHMED
Advocate for the Respondent : PP, ASSAM
BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
05.09.2022
Heard Mr. J. Laskar, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Addl. Public Prosecutor for the State/respondent.
By this petition under Section 439 Cr.P.C., the accused petitioner, namely, Ashadul Islam @ Hoque, has prayed for grant of bail in connection with
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Special POCSO Case No. 94/2021 u/s 366A/372/34 of the IPC read with Section 4 of POCSO Act.
The scanned copy of case record, as called for, is placed before this Court.
Mr. J. Laskar, learned counsel appearing for the accused petitioner, submits that the accused petitioner has been behind the bars for more than 4 months in connection with the case and as a result, he has not been able to prepare his defence. Therefore, Mr. Laskar submits that the accused may be directed to be released on bail subject to any condition.
Opposing the bail application Mr. R. J. Baruah, learned Additional Public Prosecutor, submits that there were two minor victim sisters and out of them only one victim has been examined. Therefore, Mr. Baruah submits that release of the accused on bail at the present stage of trial where the evidence of the prosecution side is going on, may likely to hamper the remaining part of trial of the case.
The F.I.R lodged by the informant who is also a victim along with her minor sister aged about 14 years alleged that on 01.04.2018 accused petitioner on the pretext of arranging their marriage brought them to Kayakuchi and handed her and her minor sister to other accused persons namely, Habibar Rahman and Jahangir. The said two accused took them to Guwahati on the next day and after confining both of them in a room raped them. Later, both the accused persons took them to Bongaigaon and confined there in a room till 06.04.2018 where they again raped them. On 08.04.2018, the said two accused persons sold them to a trafficker, but somehow they managed to run away.
A perusal of the case record reveals that after framing of the charges
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under Sections 366 /370 /109 /376 /34 of the IPC on 03.06.2022, the learned trial court has examined only one prosecution witness (minor victim girl) on 12.07.2022 out of 6 listed witnesses.
The case diary reveals that there are more material prosecution witnesses to be examined. Therefore, this Court is of the opinion that if the liberty of bail is granted to the accused petitioner at the present stage of trial of the case, the remaining part of trial of the case may likely to be hampered.
Accordingly, the bail application of the accused petitioner stands rejected.
It is, however, provided that the accused shall have liberty to file fresh bail application at an appropriate stage of trial of the case.
The learned trial court shall make an endeavor for expeditious trial of the case.
This disposes of the bail application.
JUDGE
Comparing Assistant
3 issues framed by the court
Whether bail should be granted to the accused at the present stage of trial given the procedures.
If granting bail would hamper the evidence collection and trial process.
Whether the accused should be released pending the completion of the trial.
3 provisions across 3 enactments
ASHADUL ISLAM @ HOQUE
THE STATE OF ASSAM
AJIT BORTHAKUR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
