Dismissed

Md. Umar Ali @ Oumar Ali v. the State of Assam and Anr.

Gauhati HC1 Dec 2023AB/3126/2023

Case brief

AI extract

What is this about?

This order dismisses an application for anticipatory bail under Section 438 Cr.P.C. The High Court held that since the material on record, including the victim's statement, established a prima facie case of aggravated sexual assault under IPC 376AB read with POCSO, the application could not be entertained.

What did the court decide?

Anticipatory bail application under Section 438 Cr.P.C. dismissed; CD to be returned.

Md. Umar Ali @ Oumar Ali Vs the State of Assam… — Child Sexual Offences (POCSO) | Gauhati HC (2023)

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Page No.# 1/2

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GAHC010205072023

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

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Case No. : AB/3126/2023

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MD. UMAR ALI @ OUMAR ALI S/O LATE HASEM ALI, VILL.- PHALIAMARI, P.S.- MAYONG, DIST.- MORIGAON (ASSAM).

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VERSUS THE STATE OF ASSAM AND ANR. REP. BY P.P., ASSAM.

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2:JAKIR HUSSAIN S/O LATE SUKUR MAMUD VILL.- PHALIAMARI HABI P.O.- SANDAHKHAITI P.S.- MAYONG DIST.- MORIGAON (ASSAM) PIN- 782121

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Advocate for the Petitioner : MR. N J DUTTA

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Advocate for the Respondent : PP, ASSAM

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BEFORE

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THE HON’BLE MR JUSTICE ARUN DEV CHOUDHURY O R D E R

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01.12.2023

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This is an application filed under Section 438 Cr.P.C. by the petitioner, Md.

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Page No.# 2/2

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Umar Ali @ Oumar Ali seeking anticipatory bail in connection with Mayong PS case No. 93/2023 under Section 376AB/354 IPC read with Section 4/6 of POCSO Act.

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As the case is registered under Section 376AB, a question has been raised by the learned Additional Public Prosecutor regarding the maintainability of the present case. Regarding the maintainability, Mr. NJ Dutta, learned counsel for the petitioner relying on a decision of the Hon’ble High Court of Kerala in the case of Ajith Murali Mohanan M.K. vs State of Kerala and Anr passed in Bail Appl. No.1490 of 2023 submits that when no prima-facie case is made out, the court can very well exercise the power under Section 438 Cr.P.C. and also relies on a decision of the Hon’ble Apex Court pronounced in the case of Prithvi Raj Chouhan Vs Union of India reported in 2020 SCCOnLine SC 159 .

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There is no quarrel on such proposition of law that when an absolutely false case has been filed or it is an abuse of the process of the court and that no case at all is made out, this court can very well entertain a petition under Section 438 Cr.P.C. However, in the case in hand, after perusal of the material on record including the statement of the victim recorded under Section 164 Cr.P.C., it is clear that a case as alleged is made out.

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Accordingly, the present bail application stands dismissed.

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CD be returned back.

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JUDGE

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Comparing Assistant

Md. Umar Ali @ Oumar Ali v. the State of Assam and Anr.

Case brief

What is this about?

What did the court decide?

Md. Umar Ali @ Oumar Ali v. the State of Assam and Anr.

Case brief

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What the court decided

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