Rafikul Islam v. The State of Assam and Anr

ORDER Date : 12-03-2024 Heard Mr. G. Chamuah, learned counsel for the petitioner as well as Mr. MP Goswami, learned APP for the State.

¶2The petitioners, namely, (1) Rafikul Islam and (2) Abu Shama who are apprehending arrest in connection with Jogighopa P.S. Case No. 368/2019 under sections 366/376(3) I.P.C. read with section 6 of the POCSO Act corresponding to the Special (P) case no.49(J)/2021, have filed this application under section 438 Cr.P.C., praying for pre-arrest bail.

¶3The learned APP submits that if the offence is committed under section 376(3) or section 376 AB or section 376 DA or section 376 DB IPC the prayer for pre-arrest bail does not lie as per provision of section 438(4) Cr.P.C.

¶4The learned counsel for the petitioner submits that he has nothing to say if there is a procedural bar to consider the pre-arrest bail in connection with the alleged offence.

¶5I have considered the submission of the learned counsel for the parties. I have also perused the provision of section 438(4) Cr.P.C. which reads as follows:

"(4) Nothing in this section shall apply to any case involving the arrest of any person Page No.# 3/3 on accusation of having committed an offense under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860)."

¶6In view of the above, the bail application is dismissed and disposed of accordingly.

JUDGE Comparing Assistant

Page No.# 1/3 GAHC010027132024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/350/2024 RAFIKUL ISLAM S/O JUMAR ALI R/O VILL- LATIBARI P.O. AND P.S. ABHAYAPURI DIST. BONGAIGAON, ASSAM PIN-783382 2: ABU SHAMA S/O KADER ALI R/O VILL- NALDOBA P.O. AND P.S. ABHAYAPURI DIST. BONGAIGAON ASSAM PIN-78338 VERSUS THE STATE OF ASSAM AND ANR. REP. BY ITS PP, ASSAM 2:AZID ALI S/O LT. BHUMOR ALI R/O VILL -MALEGARH PATHAR P.O. AND P.S.- JOGIGHOPA DISTRICT- BONGAIGAON ASSAM PIN-78338 Advocate for the Petitioner : MR G CHAMUAH Advocate for the Respondent : PP, ASSAM Page No.# 2/3 BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI