Azaharul Islam @ Ajaharul Islam v. The State of Assam and Anr

ORDER Date : 11.09.2024

Heard Mr. M.A.I. Hussain, learned counsel for the petitioner. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor for the State and Page No.# 2/6 Mr. A. Islam, learned counsel for the respondent No. 2.

¶2By this petition filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner, namely, Azaharul Islam @ Ajaharul Islam, has prayed for granting pre-arrest bail, apprehending arrest in connection with Dhing P.S. Case No. 128/2024 under Section 376(2)(i) of IPC r/w Section 4 of POCSO Act, 2012.

¶3The learned counsel for the petitioner submits that the petitioner and the victim girl are cousins and that the victim has expressed affection towards the petitioner. The petitioner attempted to convince the victim that such a relationship was not feasible and that his family would not accept it. It is also submitted that the victim girl threatened the petitioner by stating that if he did not accept her, she would take drastic measures. It is further submitted that the FIR was lodged more than one month after the incident. The petitioner is no way involved in the alleged offence as stated in the FIR. The petitioner is ready to co-operate with the investigation and considering the background of the case, benefit of pre-arrest bail may be extended to the petitioner.

¶4On the other hand, Mr. Gogoi, learned Additional Public Prosecutor has produced the case diary along with the statement of the victim girl recorded under Section 164 Cr.P.C. It is submitted that the petitioner is very much involved in the alleged offence and there is sufficient incriminating materials found in the case diary against the petitioner. Considering the nature of the offence, custodial interrogation of the petitioners is required. Page No.# 3/6

¶5Learned counsel for the respondent No. 2 has also raised objection in granting bail to the petitioner.

¶6I have considered the submissions made by the learned counsel for the parties. I have also perused the case diary.

¶7It appears from the statement of the victim girl recorded under Section 164 Cr.P.C. that, on the date of the incident, the petitioner had sexually abused the victim and after the incident, she attempted to commit suicide.

¶8In the decision of the Apex Court reported in [2022 SCC OnLine SC 1529] Sumitha Pradeep v. Arum Kumar C.K. and Ano, when a High Court granted anticipatory bail to an accused, the matter was challenged before the Apex Court, the Apex Court set aside the order granting anticipatory bail, after referring the order with particular mention, as stated in paragraph Nos. 10 to 16 as under: "10. The High Court, while granting anticipatory bail to the respondent No. 1 herein (original accused), observed in para 9 of the impugned order something which has really disturbed us. Para 9 reads thus:- "9. With the above principle in mind, when the facts of the case are noticed, it is revealed that the petitioner is the maternal uncle of the victim to whose house the victim went in December, 2021. On

14.12.2021, the victim is alleged to have been asked to sit on the lap of the petitioner, who thereafter is alleged to have hugged and Page No.# 4/6 kissed the victim on her cheeks. Though on the one side, there is a possibility of such hugs and kisses being manifestations of affection by an uncle, one cannot ignore the possibility of such show of 'affections' being coloured by sexual overtones. However, those are all matters for investigation."

¶11In our considered opinion, the observations made in Para 9 of the impugned order are totally unwarranted and have been made overlooking the specific allegations contained in the FIR, duly supported with the Statement of the victim - girl child under Section 164 of the Code.

¶12In a case containing such serious allegations, the High Court ought not to have exercised its jurisdiction in granting protection against arrest, as the Investigating Officer deserves free-hand to take the investigation to its logical conclusion. It goes without saying that appearance before the Investigating Officer who, has been prevented from subjecting Respondent No. 1 to custodial interrogation, can hardly be fruitful to find out the prima facie substance in the allegations, which are of extreme serious in nature.

¶13The fact that the victim girl is traumatized to such a high degree that her academic pursuits have been adversely impacted alone, coupled with the legislative intent especially reflected through Section 29 of the POCSO Act, are sufficient to dissuade a Court from exercising its discretionary jurisdiction in granting pre-arrest bail. Page No.# 5/6

¶14It may be true, as pointed out by learned counsel appearing for Respondent No. 1, that charge-sheet has already been filed. It will be unfair to presume on our part that the Investigating Officer does not require Respondent No. 1 for custodial interrogation for the purpose of further investigation.

¶15Be that as it may, even assuming it a case where Respondent No. 1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail.

¶16We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the High Court granting anticipatory bail to the accused should be quashed and set aside. In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be Page No.# 6/6 considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."

¶9Going by the ratio in the case of Sumitha Pradeep (supra), this Court is of the view that this is not a fit case to grant the privilege of pre-arrest bail to the petitioner. Therefore, the benefit of pre-arrest bail may not be considered to the petitioner and prayer is rejected accordingly.

¶10The pre-arrest bail application stands disposed of accordingly.

¶11Return the case diary.

JUDGE Comparing Assistant

Page No.# 1/6 GAHC010168872024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/2178/2024 AZAHARUL ISLAM @ AJAHARUL ISLAM S/O- GIASS UDDIN @ GIAS UDDIN, R/O- VILL.- MOIRADHAJ, P.O. ROWMARI BILL, P.S. DHING, DIST. NAGAON, ASSAM VERSUS THE STATE OF ASSAM AND ANR TO BE REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM 2:HASIM UDDIN S/O- LATE SHARIF UDDIN R/O- VILL.- MOIRADHAJ P.O. ROWMARI BILL P.S. DHING ASSAM PIN- 782123 Advocate for the Petitioner : MR. M A I HUSSAIN, N ISLAM Advocate for the Respondent : PP, ASSAM, MD. S ALI (R-2),MS S PARBIN(R-2),MR. N ISLAM(R-2) BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI