Mainul Hoque v. The State of Assam and Anr

ORDER Date : 19.02.2024

Heard Mr. I. Haque, learned counsel for the petitioner. Also heard Page No.# 2/2 Mr. M.P. Goswami, learned Addl.P.P. for the State. This is an application made under Section 438 Cr.P.C., seeking pre-arrest bail by the petitioner, namely, Mainul Hoque, apprehending arrest in connection with Tamarhat P.S. Case No. 122/2023(corresponding to GR Case No. 1500/2023), registered under Section 376(3) IPC r/w Section 4 of POCSO Act. Mr. Goswami, learned Addl.P.P. submits that this bail application is not maintainable due to bar under Section 438(4) of Cr.P.C. Mr. Haque, learned counsel for the petitioner submits that as there is provisional bar, he has nothing to say regarding maintainability of the bail application. Section 438(4) Cr.P.C. provides that 'nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code.' I have considered the submissions made by the learned counsel for the parties. It appears that the case is registered under Section 376(3) IPC along with POCSO Act. Hence, in view of the provision as mentioned above, the present bail application under Section 438 Cr.P.C. is not maintainable and disposed of accordingly. JUDGE Comparing Assistant

Page No.# 1/2 GAHC010261712023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/3977/2023 MAINUL HOQUE S/O- ABU BAKKAR ALI, R/O- VILLAGE- BARUNDANGA, P.O. BARUNDANGA, P.S. TAMARHAT, DIST.- DHUBRI, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY PUBLIC PROSECUTOR 2:SRI MONOWAR HUSSAIN S/O- HAJARAT ALI R/O- VILLAGE- BARUNDANGA P.O. BARUNDANGA P.S. TAMARHAT DIST.- DHUBRI ASSA Advocate for the Petitioner : MR I HAQUE Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MRS. JUSTICE MALASRI NANDI