Gauhati High Court
Dhiraj Kr. Kakati vs The State Of Assam on 13 August, 2021
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GAHC010044292021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/763/2021
DHIRAJ KR. KAKATI
S/O LATE HARISH CH KAKATI, R/O VILL-GAJIA, BARPETA, P.O.-GAJIA, P.S.-
BARPETA, DIST-BARPETA, ASSAM, PIN-781314
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. D K DAS
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 13-08-2021
1) Heard Mr. D. K. Das, learned counsel for the petitioner. Also heard Mr. D. Das,
learned Additional PP for the State.
2) Case diary called for by this Court earlier has been received and the same is
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produced before this Court. As such this matter is taken up for disposal today in the presence
of both the counsels.
3) This anticipatory bail petition is filed by the petitioner Shri Dhiraj Kr. Kakati,
apprehending arrest in connection with Barpeta Police Station Case no. 2617/2020 under
section 8 of the POCSO Act. The case was registered on the basis of FIR dated 14.12.2020
filed by the informant Smt. Chaya Das wife of one Shri Dipak Das.
4) It is alleged in the FIR by the informant that the son of the informant who is
student of class 10 in Gazia High School, Barpeta went to the school on 12.12.2020 to get a
certificate in order to get his Aadhar Card issued. Around 11.30 am the accused person (who
is a Head Master in the said school) very tactfully asked the informant's son to bring a glass
of water. There was no other person in the queue and the informant's son was the last
person. When the informant's son went inside the office room to bring the glass of water,
while he was cleaning the glass utensil, the accused in order to fulfil his evil intention grabbed
the minor son and kissed him both his cheeks twice. He even asked him to touch his private
organs. The informant's son was ashamed and scared. Even after stiff resistance the accused
still continued to forcibly persist with his intention. Somehow, the informant's son managed to
escape from his clutches and eventually narrate the whole incident to his friends and female
teachers of the school and as well as to the informant and family members when he returned
home from school. The informant therefore filed the FIR and sought appropriate action
against accused person.
5) The learned counsel for the petitioner submits that the entire allegation is false and
concocted and that it has been lodged to harass and take undue advantages of the petitioner.
The learned counsel for the petitioner submits that the petitioner is a respected teacher. He is
the Headmaster of the said school. In recognition of his dedicated service, a certificate of
excellence was awarded to him by Govt. of Assam, copy of which is enclosed as Annexure-B
to the instant AB petition.
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6) The learned counsel for the petitioner submits that there was an agreement
between the informant's husband and the petitioner to arrive at a compromise in relation to
the incident of the obscene behavior at Gajia High School. The learned counsel referring to
the agreement (Annexure -D) to the petition submits that in the presence of witnesses
named therein, the matter has been mutually compromised between the informant's family
and the petitioner. The learned counsel for the petitioner has also referred to the notarized
affidavits executed by the witnesses to the said mutual settlement arrived at by and between
the petitioner and the informant's family in support of his contention.
7) The further contention of the learned counsel for the petitioner is that the mandate
and the directions of the Supreme Court in Arnesh Kumar Vs. State of Bihar (2014) 8
SCC 273 has not been followed by police and as a consequence of which, no section 41 A
notice has been issued by the police although the punishment prescribed for Section 8 of the
POCSO is up to five years.
8) I have heard the learned counsels for the parties and have also carefully perused
the case diary produced in the Court as well as the pleadings on record.
9) It is seen that the instant matter is the second bail petition which has been
preferred by the petitioner. The earlier petition being AB 215/2021 has been rejected by a co-
ordinate Bench of this Court vide order dated 15.02.2021 which is enclosed as Annexure-C to
the bail petition.
10) The case diary reveals that the police had visited his place of residence a number of
times but he was not available. It is also seen from the birth certificate of the victim boy
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issued from the office of the D.H. S., Court of Assam, that his date of birth is shown as
25.11.2005 and as such his age will be about 15 years at the time of occurrence and
therefore he is a minor.
11) Perusal of the case diary also reveals the statements of several witnesses who
substantiate the allegations made in the FIR. The witnesses comprise of fellow students of
the victim boy as well as his teachers in school.
12) Under the POCSO Act, 2012 under Section 2 (d) a child has been defined to mean
any person below the age of eighteen years.
13) Under Section 7 sexual assault has been defined as :
"7. Sexual Assault- whoever, with sexual intent touches the vagina, penis, anus or
breast of the child or makes the child touch the vagina, penis, anus or breast of such
person or any other person, or does any other act with sexual intent which involves
physical contact without penetration is said to commit sexual assault."
14) Under Section 8 Punishment for sexual assault has been defined as :
"8. Punishment for sexual assault - whoever, commits sexual assault, shall be punished
with imprisonment of either description for a term which shall not be less than three
years but which may extend to five years, and shall also be liable to fine."
15) It is also seen from the pleadings that the petitioner and the informant's family, a
mutual understanding/settlement has been arrived at regarding the said allegation.
Therefore, it is evident that there is a presumption against the petitioner that the allegations
made in the FIR could be prima facie correct.
16) Further as discussed above, this is the second bail application preferred by the
petitioner pursuant to the rejection of the bail petition vide the order dated 15.02.2021
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passed in AB No. 215/2021. No new ground has been specifically urged.
17) In that view of the matter and also in view of the incriminating materials available in
the Case Diary this Court is of the view that petitioner is not entitled for grant of privilege of
anticipatory bail under Section 438 Criminal Procedure Code (CrPC) as prayed for.
18) The prayer for anticipatory bail is therefore, rejected.
19) Having said that, since the petitioner has referred to judgment of Arnesh Kumar
(Supra) and submitted that mandate of Arnesh Kumar has not been followed, this Court is
of the view that there can be no doubt that the judgment of the Apex Court for Arnesh
Kumar (Supra) is binding on the state and its officers.
20) The Apex Court, however in Arnesh Kumar (Supra) has held that the discretion to
arrest or not to arrest a person is to be exercised by the police officer namely, the
Investigation Officer in the concerned case. It is held by the Apex Court that the said
directions contained in Arnesh Kumar (Supra) shall be applicable in all cases where the
offence is punishable with imprisonment for a term which may be less than seven years or
which may extend to seven years with or without fine. Needless to say the directions of the
Apex Court in the said judgment will be borne in mind by the Investigating Officer during the
course of the investigation of this case.
21) The bail petition is accordingly disposed of. Case diary returned.
JUDGE
Comparing Assistant
