Abikul Sheikh @ Afikul Sheikh v. The State of Assam and Anr

ORDER Date : 18.06.2024 Heard Mr. A. Choudhury, learned counsel for the petitioner. Also heard Mr. R. J. Boruah, learned Additional Public Prosecutor for the State respondent No.1 and Mr. S. Islam, learned counsel for the respondent No.2.

This is an application under Section 438 of the Code of Criminal Procedure for granting the privilege of pre-arrest bail to the accused petitioner, who is apprehending arrest in connection with Bongaigaon P.S. Case No. 76/2024, under Section 376/511 of the Indian Penal Code, read with Section 8 of the POCSO Act, 2012.

CD has already been received. Perused the same. Heard both the sides.

It is submitted by Mr. A. Choudhury, learned counsel for the petitioner that from the plain reading of the FIR itself, it is seen that there is no attempt of committing rape on the victim, though the case has been registered under Section 376/511 of the Indian Penal Code, read with Section 8 of the POCSO Act, 2012, as it seems to be quite improbable that any person can tend their cows in the night hours at around 10.30 PM. At best, the case may attract Section 354(A) of the Indian Penal Code, which is a bailable offence or may attract under Section 8 of the POCSO Act, wherein the Police should take the resort of Section 41 of the Code of Criminal Procedure. Further, he submitted that the girl proposed the accused petitioner to marry her to which he refused and for that reason only the FIR has been lodged with some false allegation Page No.# 3/4 against the present accused petitioner. He is a boy of 23 years of age and neighbor of the informant and will corporate with the Investigating Officer in further investigation of this case, if he is granted with the privilege of pre-arrest bail.

In this context, Mr. R. J. Boruah, learned Additional Public Prosecutor for the State respondent, has submitted that from the materials available in the Case Diary, it is a case under Section 376/511 of the Indian Penal Code, however, there are also materials to attract the case under Section 8 of the POCSO Act as the victim was admittedly minor at the time of the alleged incident.

Mr. S. Islam, learned counsel for the respondent No.2, also submitted in this regard that there may not be an attempt of rape but the girl was molested and therefore it attracts Section 8 of the POCSO Act, as the girl being a minor of 13 years of age. Accordingly he raised objection and submitted that it is not a fit case wherein the accused petitioner can be granted with the privilege of pre-arrest bail.

Considering the entire submissions made by the learned counsels for both the sides, materials available in the Case Diary as well as the other aspects of the case, I find it a fit case to extend the privilege of pre-arrest bail to present accused petitioner. Accordingly, it is provided that in the event of arrest of the accused/petitioner, namely, Abikul Sheikh @ Afikul Sheikh, in connection with Bongaigaon P.S. Case No. 76/2024, under Section 376/511 of the Indian Penal Code, read with Section 8 of the POCSO Act, 2012, he shall be enlarged on pre-Page No.# 4/4 arrest bail on his executing a bond of Rs. 20,000/- (Rupees twenty thousand) only with one surety of like amount to the satisfaction of the arresting authority, subject to the following conditions:

(I) that the petitioner shall appear before the Investigating Officer of the case within a period of 1 (one) week from today;

(ii) that the petitioner shall fully co-operate with the investigation of the case and shall appear before the Investigating Officer as and when required in connection with the investigation of the aforesaid P.S. Case; and

(iii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

The anticipatory bail application stands disposed of in terms above. The Case Diary be sent back.

JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010050472024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oAB/667/2024o ABIKULoSHEIKHo@oAFIKULoSHEIKHo S/OoLATEoJOYNALoABEDINo VILL-oGHILAGURIo P.S.oBONGAIGAONo DIST.oBONGAIGAON,oASSAMo PIN-783372 VERSUSo THEoSTATEoOFoASSAMoANDoANR.o REP.oBYoTHEoPP,oASSAM 2:TARAoBHANUoBIBI oW/OoSAJAHANoALIo VILL-oGHILAGURIo P.S.oBONGAIGAON o DIST.oBONGAIGAON oASSAMo PIN-78337o AdvocateoforotheoPetitionerooooo:oMRoHoRoAoCHOUDHURYo AdvocateoforotheoRespondento:oPP,oASSAMoo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/4 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA