26.03.2025 Heard Mr. Mahammad Ali Sheikh, learned counsel for the petitioner and Mr. Bhaskar Sharma, learned Additional Public Prosecutor, Assam for the State, opposite party No. 1. Also heard Ms. Manisha Karen Brown, learned Amicus Curiae for the informant, opposite party No. 2.

2. Apprehending his arrest, the petitioner, namely, Atabur Rahman, son of late Jonab Ali, resident of Village - Sagunbari, Police Station - Moirabari, District - Morigaon, Assam, has filed this application on 27.01.2025 under Section 482 BNSS, seeking pre-arrest in Special (POCSO) Case No. 179/2024 arising out of Dhing Police Station Case No. 162/2024 registered under Sections 61(2)/ 126(2)/137(2)/74/70(2)/109/78 BNS read with Section 6 of the POCSO Act, corresponding to G.R. No. 2960/2024.

3. The Court on 30.01.2025 called for the scanned copy of said Special (POCSO) Case No. 179/2024 and also the copy of Dhing Police Station Case No. 162/2024 from the Court of learned Special Judge (POCSO) -cum- Additional Sessions Judge, Nagaon.

4. Perused the records of the case.

5. The petitioner is a charge-sheeted accused in Special (POCSO) Case No. 179/2024 arising out of Dhing P.S. Case No. 162/2024 under Sections 61(2)/126(2)/137(2)/74/70(2)/109/238 BNS read with Section 6 of the POCSO Act, pending before the Court of learned Special Judge (POCSO) -cum- Additional Sessions Judge, Nagaon.

6. As per the FIR dated 22.08.2024 lodged by the informant/opposite party No. 2, Sub-Inspector of Police, Dhing Police Station before the Officer-in-Charge of Dhing Police Station, the case is that on 22.08.2024 around 06:53 PM an information was received at Dhing Police Station from a person Page No.# 3/9 Abhishek Kumar Das through his Mobile Phone No. 9954339015 informing that a minor girl was found lying unconscious near the roadside at Borbheti Village, the road connecting Borbheti to Bhakatgaon, Dhing near Crematorium (Shib Mandir) under Dhing Police Station and it was suspected that the victim girl was raped by some unknown miscreants. Said information was accordingly recorded as Dhing Police Station G D Entry No 384 dated 22.08.2024 and the informant along with other police personnel including lady constable proceeded to the place of occurrence.

7. On reaching the place of occurrence it was found that the victim girl was lying in the lap of a woman belonging to Borbheti Village. Looking at the condition of the victim girl she was immediately moved to Dhing FRU (First Referral Unit) for her treatment. After her preliminary treatment, the Dhing FRU referred the victim girl to the Nagaon Medical College and Hospital wherein she was accordingly admitted for treatment.

8. In the place of occurrence, two young boys, Dipankar Nath and Surajit Nath of Borbheti Village were the first to witness and found the victim girl in a traumatized state and those two boys on questioning the victim girl could came to know that three miscreants conspired and followed her from the institution wherein she was taking tuition classes and when she reached the place of occurrence she was wrongfully restrained and was dragged to a roadside bush and they raped her. One of the miscreants had hold her hands, another put a handkerchief in her mouth so that she could not scream and the other miscreants pull down her pant and inner garments and committed rape on her. The miscreants also attempted to kill her in order to hide their identities, but could not do it because of the passing vehicles and as the miscreants got frightened, they fled away in the motorcycle.

9. The said information was given to those two boys by the victim herself, which they got it recorded in their mobile phones that was given with the said FIR.

10. As the victim girl was in the hospital for her treatment for which she was unable to lodge the FIR, in the interest of the investigation, the complainant opposite party No. 2 lodged the FIR so that the process of investigation starts without undue delay. Accordingly, the said FIR was lodged against the unknown miscreants under Sections 61(2)/126(2)/137(2)/74/70(2)/109/78 BNS read with Section 6 of the POCSO Act that was registered as Dhing Police Station Case No. 162/2024.

11. During the investigation of the case, after getting sufficient evidence, police apprehended one Toffazul Islam on 23.08.2024 in connection with the case and they were to produce him before the Magistrate on 24.08.2024. On 24.08.2024 early morning vide Dhing P.S. G D Entry No 415 dated 24.08.2024 said accused person was taken to the place of occurrence for crime scene identification and to arrest the co-accused persons.

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12. During such act, the accused Toffazul Islam tried to flee away from the police custody suddenly by pulling the rope of the handcuff from the hand of the constable Pankaj Bharali and because of that the said constable sustained injuries on his hand. Meanwhile, the side accused Toffazul Islam ran towards the pond adjacent to the crime spot and jumped in it with an intention to flee away by swimming taking advantage of the darkness. Immediately search operation was made on the bank of the said pond and its nearby areas, but he was not found. As such, SRDF team of Dhing Fire and Emergency Station was informed. Later, after a long search, the SRDF team recovered the dead body of said accused Toffazul Islam from the said pond.

13. After the recovery of the dead body, the Circle Officer of Dhing Revenue Circle was informed for conducting the Inquest over the dead body of said Toffazul Islam and the guardian of the said deceased was also informed. Accordingly, after identification of the deceased by his guardian, inquest of the deceased was done under videography in their presence. Thereafter, the dead body of the said deceased was sent to Bimala Prasad Chaliha Hospital, Nagaon for postmortem examination on the person of the said deceased, which too was accordingly done by a team of doctors and forensic experts under videography. On completion of his postmortem examination, the dead body of said deceased was handed over to his guardian for cremation. The authorities concerned observed all legal formalities and the National Human Rights Commission was also informed, as per the protocol, about the said deceased Toffazul Islam.

14. During investigation of the case, two other accused persons, namely, Foridul Islam, a driver by profession, son of Abdul Rashid and Golap Hussain, a barber by profession, son of Mohammad Ali, both are resident of Village-Borbheti, Police Station-Dhing, Nagaon were identified who were involved in the said Dhing P.S. Case No. 162/2024 and on 06.09.2024 they surrendered before police and were accordingly, arrested and both of them were produced before the Magistrate on 07.09.2024.

15. During their police remand for two days since 07.09.2024, the accused Foridul Islam disclosed that the motorcycle No. AS-01-P-1695 that was used for commission of the crime was kept with his brother-in-law Atabur Rahman, the petitioner at Sagunbari under Moirabari Police Station and he directed the petitioner to dismantle the said motorcycle and sale it as scrape for causing disappearance of evidence. On the basis of said statement of the accused Foridul Islam police personnel from Dhing Police Station led by the complainant proceeded to the said Sagunbari Village under Moirabari P.S. and as led by the accused Foridul Islam discovered the dismantled parts of the said motorcycle that was used in the commission of the crime including -- (i) one oil tank of motorcycle with name Hero Honda; (ii) one seat cover of Splendor motorcycle; (iii) one plastic seat Page No.# 5/9 support; (iv) one number plate bearing Registration No. AS-01-P-1695 (rear); (v) one number plate bearing Registration No. AS-01-P-1695 (front); (vi) one Meter casing; (vii) one headlight cover with right indicator and (viii) one blue colour plastic sack and all those were seized in presence of independent witnesses.

16. During investigation police traced out the previous owner of the Super Splendor motorcycle bearing Registration No. AS-01-P-1695 and the sale deed carried out by the accused Foridul Islam.

17. During investigation of said Dhing P.S. Case No. 162/2024 the petitioner Atabur Rahman, brother-in-law of the accused Foridul Islam, in whose house the dismantled parts of the said motorcycle that was used in the commission of the crime, evaded arrest and did not appear before the investigating authority of said Dhing P.S. Case No. 162/2024 inspite of due information.

18. After completion of the investigation of the case, police in said G.R. No. 2960/2024 arising out of Dhing P.S. Case No. 162/2024 submitted the chargesheet on 30.11.2024 vide No. 194/2024 against the accused persons of the case namely, (i) Foridul Islam, (ii) Golap Hussain and (iii) Atabur Rahman, the petitioner under Sections 61(2)/126(2)/137(2)/74/70(2)/109/78 BNS read with Section 6 of the POCSO Act, wherein the petitioner was shown as an absconder.

19. From the records of the case it is also seen that on 05.12.2024 the learned Special Judge (POCSO), Nagaon took cognizance of the offences under Sections 61(2)/126(2)/137(2)/74/70(2)/109/78 BNS R/W Section 6 of the POCSO Act in said G.R. No. 2960/2024 arising out of Dhing P.S. Case No. 162/2024 against them and directed to register and number it as Special (POCSO) Case. Accordingly, the said G.R. No. 2960/2024 (Dhing P.S. Case No. 162/2024) was registered and numbered as Special (POCSO) Case No. 179/2024.

20. In its said order dated 05.12.2024 the learned Special Judge (POCSO), Nagaon found that the accused persons of the case (i) Foridul Islam and (ii) Golap Hussain are in judicial custody, whereas in the Chargesheet the Investigating Officer of the case shown the third accused Atabur Rahman, i.e., the petitioner as an absconder. As such by the said order dated 05.12.2024 the learned Special Judge (POCSO), Nagaon issued Summons to the said third accused Atabur Rahman, petitioner for his appearance in the case.

21. From the records of the case it is further seen that on 17.01.2025 and 30.01.2025 the petitioner by filing petitions before the Court of learned Special Judge (POCSO), Nagaon took time in said Special (POCSO) Case No. 179/2024, which were allowed by the said Trial Court and by order dated 30.01.2025, the said Court fixed the matter on 13.02.2025 for appearance, copy and consideration of Page No.# 6/9 charge. In the meanwhile, the petitioner has filed this application on 27.01.2025.

22. The petitioner contended that police cannot declare him as an absconder as shown in the chargesheet of the case. He also stated that as in the meanwhile investigation is complete and chargesheet in the case has been filed showing him to be one of the accused, therefore, his custodial detention in the case is not warranted. He further stated that his pre arrest bail in said Special (POCSO) Case No. 179/2024 should be considered by the Court as maximum punishment that may be imposed upon him is seven years. It is also submitted that he shall abide by any stringent conditions that may be imposed upon him by the Court if his pre arrest bail in the said Special case is considered. It is also urged by the petitioner that he is in the business of scrap materials and did not commit any such act in disappearance of evidence of offence as alleged in the case.

23. Mr. B Sharma learned Additional Public Prosecutor appearing for the State submitted that the petitioner did not co-operate with the investigation of the case and never appeared before the Investigating Officer of the case in spite of giving him sufficient information in that regard and he evaded arrest. Mr. Sharma also stated that the petitioner could not show any valid reasons to consider the case for his anticipatory bail in said Special (POCSO) Case No. 179/2024 arising out of Dhing P.S. Case No. 162/2024 wherein he is a charge sheeted accused. Mr. Sharma in support of his argument relied on the Judgment of the Hon'ble Apex Court in the case of Sumitha Pradeep -Vs- Arun Kumar C.K. and Another, reported in (2022) 17 SCC 391.

24. Ms. M K Brown, learned Amicus Curiae submitted that from the chargesheet it can be seen that the petitioner is involved in the case in destroying the evidence of offence and he is the brother-in-law of one of the accused persons of the case. She stated that if pre arrest bail is granted to the petitioner in the case, where charge is yet to be framed against the accused persons, there is all probability that there shall be threat perception on the minor victim and she will not be free from anxiety as already she was very traumatized due to the incident occurred to her for which she was treated by psychologist for her mental health, as can be seen from the case records.

25. In the case in hand the petitioner is one of the charge-sheeted accused. The Court of learned Special Judge (POCSO), Nagaon on 05.12.2024 took cognizance of the offences under Sections 61(2)/126(2)/137(2)/74/70(2)/109/78 BNS read with Section 6 of the POCSO Act in Special (POCSO) Case No. 179/2024 and issued Summons to him. The petitioner on receipt of summons of the said Special case filed petitions before the learned Special Judge and took time for his appearance.

26. In a case relating to pre-arrest/anticipatory bail, where charge-sheet in the case had already Page No.# 7/9 been submitted, the Hon'ble Supreme Court in the case of HDFC Bank Ltd. -Vs- J.J. Mannan, reported in (2010) 1 SCC 679 have held that --

27. The case in hand relates to committing rape on a minor girl and causing disappearance of evidence of offence, wherein the petitioner is a charge-sheeted accused, already noted above. In a case relating to the offence under the Protection of Children from Sexual Offences Act, 2012 and anticipatory bail of an accused involved in it, where the claim was that custodial interrogation of the accused is not required, in the case of Sumitha Pradeep (supra), cited by Mr. B Sharma, learned Additional Public Prosecutor for the State, the Hon'ble Supreme Court have held that the same does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail, which is as follows --

Page No.# 8/9 "12. We 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 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."

28. For the reasons above, the Court is of the view that the petitioner is not entitled for his pre- arrest bail in said Special (POCSO) Case No. 179/2024 arising out of Dhing Police Station Case No. 162/2024.

29. Accordingly, this pre-arrest application of the petitioner, namely, Atabur Rahman, son of Late Jonab Ali, in said Special (POCSO) Case No. 179/2024 arising out of Dhing Police Station Case No. 162/2024 stands rejected.

30. The petitioner is directed to appear and surrender before the Court of learned Special Judge (POCSO), Nagaon in said Special (POCSO) Case No. 179/2024 and pray for his regular bail in the said Special (POCSO) Case arising out of Dhing Police Station Case No. 162/2024.

31. The assistance rendered by Mr. Bhaskar Sharma, learned Additional Public Prosecutor, Assam and Ms. Manisha Karen Brown, learned Amicus Curiae is highly appreciated.

32. The Gauhati High Court Legal Services Committee shall pay the remuneration to Ms. Manisha Karen Brown, learned Amicus Curiae as being appointed by the Court who appeared for the Page No.# 9/9 respondent No.2/informant of the case and assisted the Court in adjudication of this pre-arrest bail application, on raising a bill.

JUDGE Comparing Assistant