Abul Basar and Anr v. The State of Assam and Anr

ORDER

13.03.2024. Heard Shri H Ali, learned counsel for the applicant, namely, Merajul Islam in AB/4344/2023 and Shri N Uddin, learned counsel for the applicants, namely, 1. Abul Basar and 2. Khusid Alom in AB/294/2024, who have filed this anticipatory bail application under Section 438 of the Cr.PC praying for pre-arrest bail in connection with Kampur PS Case No. 125/2023 under Sections 354(B)/328/34 of the IPC, read with Section 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

¶2Initially, a common petition, being AB/2945/2023 was filed by the Page No.# 3/4 applicants which, however, was rejected by this Court vide order dated

18.10.2023. Such rejection was after perusal of the Case Diary which included the statement of the alleged victim under Section 164 of the Cr.PC.

¶3Shri N Uddin, learned counsel for the applicants in AB/294/2024 has submitted that there is a long and unexplained delay of 13 days in lodging the FIR which itself raises serious doubts on the veracity of the case lodged against the applicants. It is also submitted that towards their claim that they are Village Defence Party (VDP) members, certificates to that effect have also been annexed to this petition.

¶4Shri H Ali, learned counsel for the applicant in AB/4344/2023 while supporting the submissions made by Shri Uddin, learned counsel, has further submitted that so far his client is concerned, there is no specific allegation to connect the applicant with the alleged offence. It is further submitted that the applicants were part of the VDP and have detected the alleged victim with two other boys and on such detection, had handed over the alleged victim to her parents and only as a counter blast, the instant FIR has been lodged.

¶5Shri KK Das, learned Addl. Public Prosecutor, Assam has, at the outset, submitted that the prayer for anticipatory bail having been rejected once, unless new grounds are made out and urged, there may not be a scope even to examine such a prayer. He submits that so far as the documents in support of the contention of the applicants that they belong to the VDP, this Court in the earlier order had already taken note of the submission and had also come to a finding that even if the applicants are members of the VDP that will not absolve them from any criminal liability. Page No.# 4/4

¶6Be that as it may, the Case Diary produced has been carefully perused which includes the statement made by the alleged victim under Section 164 of the Cr.PC. Though there appears that there has been a delay of 13 days in lodging the FIR, the FIR itself states the reasons for such delay and in any case, in an offence under the POCSO Act, the question of delay can be a question of determination, at best in the trial and not in the stage of consideration of an application for anticipatory bail.

¶7In view of the above, both the anticipatory bail applications are rejected.

¶8Let the Case Diary be returned to the learned Addl. PP.

JUDGE Comparing Assistant

Page No.# 1/4 GAHC010288262023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/4344/2023 MERAJUL ISLAM S/O ABDUL HANIF VILL- NALIPARA PS. KAMPUR DIST. NAGAON, ASSAM VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM 2:MD. JANAB ALI S/O SAMAR ALI VILL- TUKTOKI P.S. DHING DIST.NAGAON ASSA Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : PP, ASSAM AB/294/2024 ABUL BASAR AND ANR. S/O ABDUL SALAM R/O VILL- NALIPAR P.S. KAMPUR DIST. NAGAON ASSAM Page No.# 2/4 2: KHUSID ALOM S/O SAFIQUL SALAM R/O VILL- NALIPAR P.S. KAMPUR DIST. NAGAON ASSAM VERSUS THE STATE OF ASSAM AND ANR. REP. BY THE PP ASSAM 2:MD. JANAB ALI S/O SAMAR ALI VILL- TUKTOKI P.S. DHING DIST. NAGAON ASSAM ------------ Advocate for : MR H R A CHOUDHURY Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR. BEFORE HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI