Rakibul Islam Vs the State of Assam and Anr.

Heard Mr. B. Sinha, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, Assam for the opposite party No.1. Also heard Ms. S. Nath, learned counsel appearing on behalf of Smti. P. Agarwal, learned Amicus Curiae for the informant/opposite party No.2.

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2. The petitioner, namely, Rakibul Islam , son of Shahinur Islam, resident of VillageCharkasaripara, P.O.-Fulerchar Pt-IV, Police Station-Sukchar, District-South SalmaraMankachar, Assam has filed this application under Section 483 BNSS, 2023, on 09.01.2025 seeking bail in Sukchar Police Station Case No.65/2024 corresponding to G.R. No. 444/2024 registered under Sections 65(2)/351(2) BNS, 2023, read with Section 6 of the POCSO Act, in which, he was arrested on 17.10.2024 and is in custody since then.

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3. As per the FIR dated 13.10.2024 lodged by the informant/opposite party No.2 before the Sukchar Police Station, the case is that around 05:30 p.m. on the evening of 12.10.2024 the accused petitioner took away his minor daughter from the house of informant’s brotherin-law at Beparipara inducing her to give a packet of ‘Kurkure’ and took her to the bridge at Beparipara. Finding no one there, the accused petitioner took his minor daughter under the bridge and sexually assaulted his 5 years old minor daughter, trying to penetrate his genital in her private part and when the minor victim girl made hue and cry, the accused petitioner fled away. When the guardian of the accused petitioner was informed, he fled away from the village. The said FIR dated 13.10.2024 of the informant was registered as Sukchar Police Station Case No.65/2024 corresponding to G.R. No. 444/2024 under Sections 65(2)/351(2) BNS, 2023, read with Section 6 of the POCSO Act.

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4. The accused petitioner was subsequently taken into custody on 17.10.2024 in said Sukchar P.S. Case No. 65/2024 and was produced before the learned Chief Judicial Magistrate, South Salmara-Mankachar on 17.10.2024 itself.

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5. As the petitioner is in custody since 17.10.2024, by filing this bail application he is seeking bail in said Sukchar P.S. Case No. 65/2024 considering the length of his detention.

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6. By order dated 10.01.2025, the records of said Sukchar P.S. Case No. 65/2024, corresponding to G.R. No. 444/2024 was called for.

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7. On perusal of the records, it is seen that the statement of the minor victim girl under Section 183 BNSS was recorded on 16.10.2024 by the learned Sub-Divisional Judicial Magistrate(M), Hatsingimari, South Salmara. In her statement under Section 183 BNSS before the learned SDJM(M), Hatsingimari, South Salmara, the victim girl implicated the petitioner of committing sexual assault on her on the date of the incident.

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8. From the records, it is also seen that after completion of the investigation of the case, police on 29.11.2024 submitted the charge-sheet in said Sukchar P.S. Case No. 65/2024 against the petitioner under Sections 75(2)/351(2) BNS, 2023 read with Sections 8/10 of the POCSO Act.

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9. From the records of the case, it is also seen that police have seized the Birth Certificate of the victim girl, issued by the Registrar of Birth and Death, Gazarikandi Public Health Centre on 23.11.2020 indicating her date of birth as 08.11.2020. As such, on the date of the incident, i.e., on 12.10.2024, the victim girl was about 5 years old.

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10. After filing of the charge-sheet in the case, the Court of learned Special Judge (POCSO), South Salmara-Mankachar on 06.12.2024 took cognizance of the offence under Sections 75(2)/351(2), BNS read with Section 8 of the POCSO Act and the said Sukchar P.S. Case No. 65/2024 was accordingly, registered as Special (POCSO) Case No.251/2024.

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11. From the case records, it is also seen that on 03.01.2025, charge under Section 351(2) BNS, 2023, read with Section 8 of the POCSO Act was framed against the petitioner and 26.03.2025 is the next date for evidence.

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12. The Hon’ble Apex Court in the case of X Vs. State of Rajasthan, reported in (2024) INSC 909 = 2024 STPL 12498 SC have held that—

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“In serious offences like rape, murder, dacioty etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High

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Court should be loath in entertaining the bail application of an accused of the case.”

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13. Their Lordships in said X Vs. State of Rajasthan further held that—

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“15. Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim.

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We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that right of the accused to have a speedy trial has been infringed.”

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14. In the case in hand it is already noticed that after filing the FIR on 13.10.2024, the petitioner was arrested on 17.10.2024 and the charge-sheet in the case was submitted on 29.11.2024. Thereafter, cognizance of the offence against the petitioner was taken on 06.12.2024 and charge under Section 351(2) BNS, 2023, read with Section 8 of the POCSO Act was framed against the accused petitioner on 03.01.2025. Now, the matter is fixed for evidence on 26.03.2025.

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15. Considering the above and the decision of the Hon’ble Apex Court in the Case of X Vs. State of Rajasthan, the Court is of the opinion that considering the date of detention of the petitioner in custody since 17.10.2024 it cannot be said that the right of the accused petitioner to have a speedy trial of the case has been infringed.

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16. For the reasons above this Court of the view that considering his detention in custody since 17.10.2024, the petitioner, named above, is not entitled for his bail in said Special (POCSO) Case No.251/2024 arising out of Sukchar P.S. Case No. 65/2024, pending before the Court of learned Special Judge (POCSO), South Salmara-Mankachar.

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17. Accordingly, this bail application of the petitioner, Rakibul Islam , son of Shahinur

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Islam in said Special (POCSO) Case No.251/2024 arising out of Sukchar P.S. Case No. 65/2024 , pending before the Court of learned Special Judge (POCSO) South SalmaraMankachar, stands rejected .

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JUDGE

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Rakibul Islam v. the State of Assam and Anr.

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Rakibul Islam v. the State of Assam and Anr.

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