Utpola Bose Vs the State of Assam

Heard Mr. F Z Mazumder, learned counsel for the petitioner and Mr. Bankim Sarma, learned Additional Public Prosecutor, Assam for the State respondent.

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2. The petitioner, namely, Utpola Bose, daughter of Sri Tapash Bose, resident of House No. 52, 2^nd Green Woodland, Lal Ganesh, Odalbakra, Police Station-Dispur, Guwahati, District-Kamrup (Metro), has filed this application under Section 483 BNSS, 2023, seeking bail in Sessions Special Case No.

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112/2023 arising out of Paltanbazar Police Station Case No. 193/2023 facing charge under Section 370(5) of the IPC and under Sections 80 & 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015, pending before the Court of learned Special Judge (POCSO)-cum-Additional Sessions Judge, Kamrup (Metro), Guwahati, in which she was arrested on 13.05.2023 and is in custody since then.

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3. As per the FIR dated 05.05.2023 lodged before Paltanbazar Police Station, the case is that the accused couple, namely, Dr. Sangeeta Dutta and Dr. Walliul Islam, in assistance of their maid, had physically assaulted their three years old minor girl child, tied her up under direct sunlight in the terrace of the 5^th floor of their residence, did not provide her any food or water and kept her in an inhuman condition. The said FIR was accordingly registered as Paltanbazar Police Station Case No. 193/2023 under Sections 307/325/341/34 IPC read with Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 with added Sections 366(A)/367/368/376(AB) IPC with added Section 80 of the JJ Act and added Sections 6/17/21 of the POCSO Act.

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4. It is submitted by Mr. Mazumder, learned counsel for the petitioner that up to 03.10.2024 only three out of 64 named prosecution witnesses have been examined so far. It is submitted that it is not known as to when the prosecution will be able to adduce the evidence of remaining 61 witnesses. As such, considering her detention in custody since 13.05.2023 for about 1 year 10 months, Mr. Mazumdar, learned counsel for the petitioner has prayed to grant bail to the petitioner, Utpola Bose in said Sessions Special Case No. 112/2023, pending before the Court of learned Special Judge (POCSO) -cum- Additional Sessions Judge, Kamrup (Metro), Guwahati submitting that the petitioner shall appear before the said Trial Court on the date fixed and shall comply with any terms and conditions that may be imposed by the Court while considering her bail in the case.

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5. Mr. Mazumder, learned counsel contended that the Hon’ble Apex Court have held that the Court must ensure that an accused is not kept in custody for an unreasonable period as prolonged incarceration of an accused awaiting trial unjustly deprives him/her right to life and personal liberty under Article 21 of the Constitution of India particularly in a case where such incarceration extends over an unreasonably long period without conclusion of trial.

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6. In support of his contention, Mr. Mazumder, learned counsel for the petitioner placed reliance on the judgment of the Hon’ble Supreme Court in the cases of Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State of Uttar Pradesh, decided on 18.07.2024, reported in 2024 INSC 534; Partha Chatterjee Vs. Directorate of Enforcement, decided on 13.12.2024, reported in 2024 INSC 975 and the decision of the Delhi High Court in the case of Rihan Vs. the State (GNCTD), decided on 20.11.2023.

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7. Mr. B Sarma, learned Additional Public Prosecutor, Assam from the records placed that many witnesses, who are also prosecution witnesses named in the chargesheet of the case, in their statements under Section 164 CrPC before the learned Magistrate at Kamrup (Metro), Guwahati implicated the petitioner of her involvement in surrogacy as well as trading of child and those prosecution witnesses are yet to adduce evidence before the Trial Court.

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8. Mr. B Sarma, learned Addl. P.P. has placed before the Court those Section 164 CrPC statements of the concerned witnesses who implicated the petitioner in the alleged crime.

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9. As such, Mr. Sarma, learned Addl. P.P., submitted that till the examination of those relevant witnesses, who implicated the petitioner, Utpola Bose; she should not be released on bail.

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10. The Court by order dated 23.09.2024 called for the scanned copies of the records of said Sessions Special Case No. 112/2023 along with the copy of the case diary of Paltanbazar Police Station Case No. 193/2023.

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11. From the records of the case, it is seen that after completion of the investigation of the case, charge-sheet in said Paltanbazar P. S. Case No. 193/2023 was submitted on 03.07.2023 before the Court of learned Sessions Judge, Kamrup (Metro), Guwahati against five of the accused persons of the case, including the present petitioner, Utpola Bose under Section 370 IPC read with Section 80/81 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

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12. By order dated 04.07.2023, the learned Sessions Judge, Kamrup (Metro), Guwahati transferred the said Paltanbazar P.S. Case No. 193/2023 to the Court of learned Special Judge (POCSO) -cum- Additional Sessions Judge, Kamrup (Metro), Guwahati for its disposal as the said chargesheet of the case also contains charges under the POCSO Act against some of the co-accused of the case. On filing of such chargesheet in said Paltanbazar P.S. Case No. 193/2023, it was renumbered as Sessions Special Case No. 112/2023 before the Sessions/POCSO Court, i.e. the Trial Court.

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13. On 24.06.2024, the Court of learned Special Judge (POCSO), Kamrup (Metro), Guwahati in said Sessions Special Case No. 112/2023 framed charge under Section 370 IPC read with Section 80/81 of the Juvenile Justice (Care and Protection of Children) Act against the petitioner.

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14. From the records of the case as well as the chargesheet filed in it, the accusation against the petitioner, Utpola Bose by the prosecution is that — she was having a hostel at Lal Ganesh and from it she was running a surrogacy center where she gave shelter to the women who had consented for

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surrogacy. From the statement of the witnesses recorded under Section 164 CrPC as well as 161 CrPC, it is revealed that the present petitioner purchased the minor victim boy of the case from a lady of Maligaon, Guwahati through one Asha worker by making payment of Rs.12,000/- each to them. The petitioner also purchased the minor victim girl from another lady through two different Asha workers by paying huge amount of money. After purchasing both the baby boy as well as the baby girl, i.e., the victims in this case, the petitioner kept them in her house. The accused Doctor couple later came to the house of the petitioner and purchased both the baby boy and the baby girl, the victims, during their infant stage by paying Rs.50,000/- for each of them, totaling an amount of Rs.1,00,000/- to the petitioner. The case record also reflects that the petitioner illegally operated the said surrogacy center and used to pay about Rs.2,00,000/- to each of the surrogated mother after giving birth to the babies and thereafter, she used to sale those babies to others.

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15. It is already noted above that charge-sheet in the case has been filed in time without delay, charges have also been framed against the five accused persons of the case including the petitioner and the concerned POCSO Court have also started recording of evidence of prosecution witnesses who were thoroughly cross-examined by the defence.

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16. In the case of X Vs. Rajasthan, reported in 2024 INSC 909 = 2024 STPL 12498 SC, the Hon’ble Supreme Court have held that — Ordinarily in serious offences, once the trial commences and the prosecution starts examining its witnesses, the Court be it the Trial Court or the High Court should be loath in entertaining the bail application of the accused.

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17. In the said case of X Vs. Rajasthan, the Hon’ble Apex Court have also held as follows:

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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

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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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18. It is noted above that FIR of the case was filed on 05.05.2023, Chargesheet in the case was submitted on 03.07.2023, the concerned Court, after transfer of the case, framed charge on 24.06.2024 and as on 03.10.2024 evidence of three of the prosecution witnesses have already been recorded and the said case is now pending in the stage of recording of evidence before the Court of the learned Special Judge (POCSO) -cum- Additional Sessions Judge, Kamrup (Metro), Guwahati. As such, it cannot be said that the trial of the case has been unduly delayed for which the right of the accused petitioner to have a speedy trial has been infringed and for that she is entitled for bail.

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19. After hearing the parties and considering the entire aspect of the matter, this Court is of the opinion that her detention since 13-05-2023 cannot be considered for bail of the petitioner in said Sessions Special Case No. 112/2023 arising out of Paltanbazar Police Station Case No. 193/2023, at this stage.

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20. Accordingly, this bail application of the petitioner, Utpola Bose, daughter of Tapash Bose in Sessions Special Case No. 112/2023 arising out of Paltanbazar Police Station Case No. 193/2023, pending before the Court of learned Special Judge (POCSO) -cum- Additional Sessions Judge, Kamrup (Metro), Guwahati, stands rejected.

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JUDGE

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Utpola Bose v. the State of Assam

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Utpola Bose v. the State of Assam

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