Gauhati High Court
Girish Chandra Deka vs The State Of Assam on 7 August, 2023
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GAHC010119362023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1949/2023
GIRISH CHANDRA DEKA
S/O- LATE MUKTA RAM DEKA, R/O- KARARA, P.O. KARARA, P.S. BAIHATA
CHARIALI, DIST.- KAMRUP, ASSAM, MOB. 9864027090 EMAIL-
[email protected], PIN- 781381
VERSUS
THE STATE OF ASSAM
REP. BY P.P., ASSAM
Advocate for the Petitioner : MR A K AHMED
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
Date : 07-08-2023
1. Heard Mr. A Chaudhary, learned counsel for the petitioner. Also
heard Mr. P. Borthakur, learned Additional Public Prosecutor for the
State of Assam.
2. By this application under section 438 Cr.P.C., the petitioner,
namely, Girish Chandra Deka has prayed for granting pre arrest bail
apprehending arrest in connection with Changsari PS Case
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No.147/2023under sections 294/354/354(D)/506 IPC.
3. Mr. A Chaudhary, learned counsel for the petitioner submits
that though a case is registered under sections 294/354/354(D)/506
IPC, except section 354 IPC, all offences are bailable. He further
contends that a bare perusal of the FIR does not disclose any offence
under section 354 IPC. At best, according to the learned counsel, it
can be a case under section 354 D IPC, which is a bailable offence or
a case under section 354 A IPC, and the same is also a bailable
offence. Therefore, this is a fit case where the petitioner shall be
granted the privilege of anticipatory bail.
4. Mr. Chaudhary further contends that the petitioner has in the
meantime cooperated with the investigating officer and got his
statement recorded and therefore, no custodial interrogation is
required. It is also contended by Mr. Chaudhary that the investigating
authority has violated the direction issued by the hon'ble Apex Court
in the case of Arnesh Kr. State of Bihar reported in AIR 2014 SC
2756 and the recent judgment of the hon'ble apex court in Md.
AsfakAlam Vs. State of Jharkhand &Anr(Crl.A No.2207/2023) by not
issuing any notice under section 41Cr.P.C.
5. Per contra, Mr. P Borthakur learned Addl. PP submits that the
investigation is at a very early stage and enlarging the accused on bail
would have a negative impact on the investigation process as well as
to the society. Further according to learned Addl. PP the investigating
officer has specifically expressed that the accused may commit similar
offence, if he is released on bail and may hamper and tamper the
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witnesses if released on bail, he being the Headmaster of the school,
wherein the victim was a teacher. He further contends that the victim
has specifically implicated the petitioner in her statement recorded
before the Magistrate under section 164 Cr.P.C as well as in the
statement recorded before the police under section 161 Cr.P.C.
6. The case diary produced today is perused.
7. Now coming to the arguments advanced by Mr. Chaudhary,
learned counsel for the petitioner that no case under section 354 IPC
is made out, let this Court consider the section 350 IPC which deals
with criminal force and section 351 IPC which deals with assault. In
terms of section 354 IPC assault or use of criminal force to a women
is a sine quo non as well as the intention to outrage the modesty or
knowing that such act will bear outrage the modesty of a women is
required to be present. In terms of section 351 IPC an assault will
include any gesture or any action with the knowledge that it will make
the other person apprehend the meaning of the gesture is to harm,
injure or create fear of commission of an assault.
8. In the case is hand, the gestures and action as described in
the FIR as well as in the statement of the victim recorded under
section 164Cr.P.C and under section 161Cr.P.C have left no room of
doubt that the action on the part of the accused is an assault in terms
of section 354 IPC inasmuch as the allegation that the accused not
only touched the cloths of the victim but also his intention is quite
clear from the gesture as described in the FIR to treat it to be an
assault within the meaning of section 354 IPC.
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9. Coming to the question of issuing a notice, in the considered
opinion of this court such argument is premature in nature inasmuch
as the petitioner has not been arrested till date and therefore, at this
stage the question of issuing notice has not arisen inasmuch as it
cannot be presumed that the investigating authority shall not follow
the mandate of Arnesh Kumar (supra) and Asfak Alam (supra) if
they intend to arrest the petitioner.
10. Considering the materials available on record as well as the
stage of investigation and the nature of allegation, this court is of the
considered opinion that this is not a fit case to grant the privilege of
pre arrest bail to the accused petitioner.
11. In view of the aforesaid the instant bail application stands
rejected.
12. The interim order, if any, passed earlier stands vacated.
13. While parting with the records, it is made clear that the
observations made in the present order is only for the purpose of
determining the present application and should not be treated as
determination or the merit of the allegation.
JUDGE
Comparing Assistant
