Montu Phukan v. The State of Assam

ORDER

02.01.2023

Heard Mr. R. Islam, learned counsel for the accused and Mr. B.B. Gogoi, learned Addl. P.P. for the State respondent.

¶2This application under Section 439 of the Code of Criminal Procedure, 1973, Page No.# 2/3 is preferred by accused, namely, Montu Phukan, who has been languishing in jail hazot in connection with the Sivsagar P.S. Case No. 394/2022, under Section 366 of the IPC, for granting bail.

¶3The said case has been registered on the basis of an FIR lodged by one Sri Munin Bora, on 20.10.2022, to the effect that his daughter Smti X [name withheld] aged 15 years is missing since 3 pm of 18.10.2022, and later on, he came to know that his daughter has been kidnapped by one Montu Phukan of Dimow Masoi, Sivsagar.

¶4Mr. Islam, learned counsel for the accused submits that the accused was arrested on 25.11.2022, and since then he is behind the bar for last 40 days and that there was love affairs between the accused and the victim and that the victim is a major girl and as such, no offence under section 4 of the POCSO Act and 366 of the IPC is attracted here in this, and therefore, it is contended to allow this petition.

¶5On the other hand Mr. Gogoi, learned Addl. P.P. by producing the case diary, submits that as per the birth certificate collected by the IO, the age of the victim girl is 15 years and though she stated in her statement under section 164 of the Cr.P.C. that she got married with the accused and that there was some relation between her and the accused, yet, at the relevant time she was 15 years old, and therefore, it is contended to dismiss the petition.

¶6Having heard the submission of learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the case diary with the assistance of Mr. Gogoi. Page No.# 3/3

¶7It appears from the case diary that during the course of the investigation the IO has collected the birth certificate of the victim. As per the birth certificate, issued by the Department of Health Services Sivsagar, her date of birth is

09.12.2007, and as such, at the time of occurrence she was a 'child' as defined in section 2[d] of the POCSO Act.

¶8Further it appears from her statement recorded under section 164 of the Cr.P.C. that her age is 15 years and she has implicated the accused with the offence alleged under section 4 of the POCSO Act.

¶9In view of the materials collected so far in the case diary as well as the age of the victim, this court is of the view that this is not a fit case where the privilege of bail can be extended to the accused.

¶10Accordingly the petition stands dismissed.

¶11The case diary be returned. JUDGE Comparing Assistant

Page No.# 1/3 GAHC010255302022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3455/2022 MONTU PHUKAN S/O- KULA PHUKAN, R/O- DEMOW , MASOI, P.S- DEMOW, DIST- SIVASAGAR, ASSAM, PIN-785662 VERSUS THE STATE OF ASSAM REP. BY PP, ASSAM Advocate for the Petitioner : MR R ISLAM Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN