Mohammad Ali v. The State of Assam and Anr

PageoNo.#o1/6 GAHC010204792024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oAB/2719/2024o MOHAMMADoALIo S/OoABUoSHAMAo@oABUoSHAMAoALI,oR/OoVILL-oHARIRCHAoPART-I,oP.O.- MADRASAPARA,oP.S.-MERERCHAR,oDIST-oBONGAIGAON,oASSAM VERSUSo THEoSTATEoOFoASSAMoANDoANRo REPRESENTEDoBYoTHEoPUBLICoPROSECUTOR,oASSAM 2:MOMTAJoKHATUN oW/OoJAYNALoABDIN oVILL-oBAGULAMARI oP.O.-LANGLA oP.S.-KALGACHIA oDIST-oBARPETA oASSAo AdvocateoforotheoPetitionerooooo:oMRoAoKoAZAD,oMR.oIoHUSSAINo AdvocateoforotheoRespondento:oPP,oASSAM,oMRoNoJAMALo(R-2)oo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo BEFORE HONOURABLEoMRS.oJUSTICEoMALASRIoNANDI ORDERo Dateo:oo14.11.2024 o o Heard1Mr.1A.K.1Azad,1learned1counsel1for1the1petitioner.1Also1heard1Mr. D.P. 1 Goswami, 1 learned 1 Additional 1 Public 1 Prosecutor 1 for 1 the Page No.# 2/6 State/respondent No.1 and Mr. N. Zamal, learned counsel for the respondent No. 2.

¶2By this petition filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner, namely, Mohammad Ali, has prayed for granting pre-arrest bail, apprehending arrest in connection with Kalgachia P.S. Case No. 96/2024 under Section 87/65(1)/115(2) of BNS, 2023 r/w Section 6 of POCSO Act, 2012.

¶3The learned counsel for the petitioner submits that whatever stated by the informant in the FIR is false and concocted. The petitioner is in a relationship with the victim. After the alleged incident, the matter was resolved between the petitioner and the informant, stipulating that the petitioner would marry the victim girl upon reaching the age of majority. The petitioner is ready to co-operate with the investigation and considering the age of the petitioner, benefit of pre-arrest bail may be extended to the petitioner.

¶4On the other hand, Mr. Goswami, learned Additional Public Prosecutor has produced the case diary along with the statement of the victim girl recorded under Section 164 Cr.PC(183 of BNSS) and submits that the victim is a minor girl and she has implicated the petitioner. It is also pointed out that the victim is a minor girl as per birth certificate seized by the investigating officer. As such, he prayed that benefit of pre-arrest bail may not be considered to the petitioner.

¶5Mr. Zamal, learned counsel for the respondent No. 2 has submitted that the informant has no objection in granting pre-arrest bail to the Page No.# 3/6 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.PC(183 of BNSS) that the victim had been sexually abused by the petitioner. It also appears that the victim became pregnant due to physical relationship with the petitioner. It is also stated by the victim that the petitioner gave some medicine for termination of pregnancy and her pregnancy was terminated.

¶8In the decision of the Apex Court reported in [2022 SCC OnLine SC 1529] Sumitha Pradeep v. Arum Kumar C.K. and Another, 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:

¶10The 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 Page No.# 4/6 lap of the petitioner, who thereafter is alleged to have hugged and 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 Page No.# 5/6 exercising its discretionary jurisdiction in granting pre-arrest bail.

¶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. Page No.# 6/6 Custodial interrogation can be one of the relevant aspects to be 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 not inclined to grant the privilege of pre-arrest bail to the petitioner. Therefore, the benefit of pre-arrest bail is rejected.

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

¶11Return the case diary.

JUDGE Comparing Assistant