Rafikul Sk @ Rafikul Islam v. The State of Assam and 2 Ors

ORDER

12.02.2024 Heard Mr M Hussain, learned counsel for the petitioner, Rafikul Sk @ Rafikul Islam.

¶2The petitioner has filed this application under Section 438 CrPC, with prayer for pre-arrest bail, as he is apprehending arrest in connection with Kokrajhar PS Case No. 329/2021, under Section 376 DA IPC, read with Section 4 of the POCSO Act.

¶3Heard Mr B B Gogoi, learned Additional Public Prosecutor for the State of Assam and Mr A Alim Sk, learned counsel for the respondent Nos. 2 and 3.

¶4The respondent Nos. 2 and 3 are the informant and victim respectively.

¶5The respondent No. 2 lodged an FIR with the Police at Kokrajhar Police Station with allegations against the present petitioner that he forcefully committed sexual assault upon the victim, who was 13 years of age.

¶6An additional affidavit is filed by respondent Nos. 2 and 3 that his case was initiated against the petitioner on misunderstanding. The respondent No. 3 is not a minor, but she is 21 years old.

¶7It is submitted on behalf of the petitioner that Section 376 DA IPC is not applicable Page No.# 3/3 as this is not a case of gangrape.

¶8An affidavit sworn in by the respondent No. 2 is marked as Annexure-A of the petition, which clearly reveals that there was a love affair between the petitioner and the respondent No. 3. On a misunderstanding and a bonafide mistake, the respondent No. 2 has lodged this FIR against the petitioner.

¶9I have considered the submissions at the Bar with circumspection.

¶10I have perused the Case Diary.

¶11Investigation has progressed to a considerable extent.

¶12The petitioner is a local resident and he has pledged to cooperate with the investigation.

¶13It is also submitted that the petitioner being a local resident is not a flight risk.

¶14Considering all aspects and in view of my foregoing discussions, petition is allowed. In the event of his arrest, the petitioner shall be enlarged on bail of Rs. 50,000/-with a suitable surety of the like amount to the satisfaction of the arresting authority under the conditions that:-

i) the petitioner shall appear before the IO within 10 (ten) days and cooperate with the investigation.

¶15Bail Application stands disposed of.

¶16Send back the Case Diary. JUDGE Comparing Assistant

PageoNo.#o1/3 GAHC010186442023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oAB/2944/2023o RAFIKULoSKo@oRAFIKULoISLAMo S/OoLT.oNATULoSHEIKH,o VILL.-oBANGALDOBAoPART-oII,oP.O.-oNAYEKGAON,oP.S.-oKOKRAJHAR,o DIST.-oKOKRAJHAR,oBTR,oASSAM,oPIN-o783370. VERSUSo THEoSTATEoOFoASSAMoANDo2oORS.o REP.oBYoTHEoP.P.,oASSAM. 2:TAHAJoALI oS/OoLT.oALABAKSAoSHEIKH o VILL.-oBANGALDOBAoPART-oII oP.O.-oNAYEKGAON oP.S.-oKOKRAJHAR oDIST.-oKOKRAJHAR oBTR oASSAM oPIN-o783370. 3:XXX oD/OoTAHAJoALI o VILL.-oBANGALDOBAoPART-oII oP.O.-oNAYEKGAON oP.S.-oKOKRAJHAR oDIST.-oKOKRAJHAR oBTR oASSAM oPIN-o783370o Page No.# 2/3 Advocate for the Petitioner : MR. M HUSSAIN Advocate for the Respondent : PP, ASSAM BEFORE HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND