Abdul Rafique @ Kalu vs The State Of Assam And Anr
2022 Latest Caselaw 50 Gua

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GAHC010126862021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : I.A.(Crl.)/320/2021
                                               in
                              Criminal Appeal No.104 of 2018

            ABDUL RAFIQUE @ KALU
            S/O. LATE ABDUL JALIL, R/O. ANANDAPUR, P.O. BHAWANIPUR, P.S.
            BARPETA, DIST. BARPETA, ASSAM

            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY P.P., GHC

            2:MD. SAHIDUL ISLAM
             S/O ABDUL MALEK
            VILL. ANANDAPUR
             P.S. BARPETA, DIST. BARPETA
            ASSAM, PIN 78135

Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : PP, ASSAM

BEFORE HON'BLE MR. JUSTICE HITESH KUMAR SARMA

05-01-2022

Heard Mr. HRA Choudhury, learned senior counsel, assisted by Mr. A. Ahmed, learned counsel. Also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam, appearing for the respondent.

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This interlocutory application has been filed seeking bail of the applicant/appellant, who was convicted by the learned Special Judge under the POCSO Act (Additional Sessions Judge, Bajali, Pathsala) in connection with Spl. POCSO Case No.02 of 2017, vide judgment passed on 25.01.2018. On conviction, the applicant/appellant was sentenced to rigorous imprisonment for seven (7) years and to pay a fine of Rs.10,000/-, with a default clause, for offence punishable under Section 4 of the POCSO Act.

Learned senior counsel for the petitioner has submitted that the accused petitioner has been in custody for more than 50 per cent of the sentence period and the hearing is not in the offing and, therefore, he granted bail.

I have perused the records of the learned Court below including the judgment impugned in the connected appeal. The judgment appears to be based on evidence on record although some inconsistencies in the evidence has been brought to the notice of this Court by Mr. Choudhury, learned senior counsel for the applicant/appellant. The inconsistencies so brought to the notice of this Court needs meticulous examination to consider whether the order of conviction recorded in the judgment would stand the scrutiny of law or not. Therefore, a detail and thorough hearing of the appeal would be required for disposal of the connected criminal appeal. However, the appeal has been pending since 2018 and it is unlikely to be heard and disposed of within a short time.

I have considered the submission made by the learned counsel for the petitioner. The applicant/appellant has undergone more than 50 per cent of the sentence period. The decision rendered by the Hon'ble Supreme Page No.# 3/3

Court in the case of Saudan Singh Vs. State of Uttar Pradesh , passed in Special Leave to Appeal (Crl.) No.4633/2021, and referred to by the learned senior counsel for the petitioner, to substantiate that the broad parameter of 50 per cent of the actual sentence undergone can also be the basis for grant of bail.

Taking into account the above submission, particularly, the fact that 50 per cent of the sentence has already been undergone by the applicant/appellant, this Court is inclined to grant bail to the applicant/appellant on his furnishing bail bond of Rs.25,000/- with a suitable surety of the like amount to the satisfaction of the learned jurisdictional Special Court, which had convicted the applicant/appellant, vide the judgment referred to above, on conditions to be imposed by it.

With the above directions and observation, this interlocutory application stands disposed of.

JUDGE

Comparing Assistant