Guljar Hussain Vs the State of Assam and Anr.

Heard Mr. M.H. Ahmed, learned counsel for the petitioner. Also heard Mr. D.P. Goswami, learned Addl. P.P. appearing for the State respondent and Mr. S. Nawaz, learned Amicus Curiae for the respondent no.2.

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This petition has been filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, whereby the petitioner, namely, Guljar Hussain prayed for granting pre-arrest bail, apprehending arrest in connection with Laharighat P.S. Case No.21/2025 under Section 61(2)(a)/65(1)/89/329(4)/332(b)/332(c) BNS r/w Section 6 of PCSO Act, 2012.

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The case arose out of the FIR dated 27.01.2025 lodged against the five accused including the present accused. The main allegation is against the present accused (A-1) stating that he committed rape upon the victim aged about 13 years.

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The learned counsel for the petitioner submits that the birth certificate shown by the victim side indicating her age as 24.10.2010 is fake and that her actual date of birth is 24.10.2006.

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A report was called for regarding the same and in this context, the learned prosecution submits that the office of the Registrar birth and deaths stated that the original records has been lost during shifting and therefore, they are not in a position to verify to confirm regarding the said certificate.

¶22

The petitioner side also relies upon a transfer certificate wherein, the date of birth is mentioned as 24.10.2006. In this context, Mr. S. Nawaz, learned Amicus Curiae referring to the judgement of P. Yuvaprakash Vs. State rep. by Inspector of Police reported in 2023 INSC 676 submits that in the

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context of Section 64 of the JJA Act, 2015 – the Hon’ble Supreme Court in the said judgement in para-14 has excluded a transfer certificate from consideration regarding date of birth.

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It is also pointed out by the learned Amicus Curiae submits that as per Section 66 482(4) BNSS, 2023 in an alleged offence of rape upon a girl below 16 years, anticipatory bail would not be maintainable.

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The learned Addl. P.P. also opposes the bail application.

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Upon perusing the materials and considering the matter – I am of the considered view that since it is not definite that birth certificate is fake, therefore, it cannot be said that prima facie there are no materials in support of the allegation that the girl was aged below 16 years.

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Accordingly, in such a situation, the instant bail petition would not be maintainable and accordingly, the same stands dismissed and disposed of.

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JUDGE

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Comparing Assistant

Guljar Hussain v. the State of Assam and Anr.

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Guljar Hussain v. the State of Assam and Anr.

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