Gauhati High Court
Page No.# 1/5 vs The State Of Assam And Anr on 21 November, 2024
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/5
GAHC010201102024
2024:GAU-AS:11374
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/2596/2024
MD NIZAM UDDIN @ NIJAM UDDIN
S/O MD. BASAROT ALI
R/O VILL- LANKA PATTY
NO. 1 WARD, P.O. AND P.S. LANKA
DIST. HOJAI, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP BY THE PP, ASSAM
2:KHEWARUN NESSA
W/O AZIR UDDIN
R/O BORJOHA GAON
P.S. LANKA
DIST. HOJAI
ASSAM
PIN-78244
Advocate for the Petitioner : P P BARUAH, MD G HUSSAIN,MR. D BORA,MR. A KHAN
Advocate for the Respondent : PP, ASSAM, MR R I BHUYAN(R-2),MR. M H SAIKIA (R-2),MS. L
WAJEEDA(R-2),MR. N H MAZARBHUIYAN(R-2)
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BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
21/11/2024
Heard Mr. P P Baruah, learned counsel for the petitioner and Ms. S H Bora, learned Additional
Public Prosecutor, Assam for the State. Also heard Mr. R I Bhuyan, learned counsel for the
informant/opposite party No. 2.
2. The petitioner, namely, Md. Nizam Uddin @ Nijam Uddin, son of Md. Basarot Ali, resident
of Village-Lanka Patty, No. 1 Ward, P.S. Lanka, District-Hojai, has filed this application under Section
482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking pre-arrest bail apprehending his arrest
in Special (POCSO) Case No.233/2024 arising out of Lanka P.S. Case No. 110/2024
registered under Section 354(A) IPC read with Section 8 of POCSO Act.
3. The petitioner is a charge-sheeted accused in said Special (POCSO) Case No.233/2024 arising
out of Lanka P.S. Case No. 110/2024.
4. It is stated by the petitioner that in the charge-sheet filed in said Lanka P.S. Case No.
110/2024, he has been shown as an absconder and the learned Special Judge (POCSO), Hojai while
taking cognizance of the offence under Section 354(A) IPC read with Section 8 of the POCSO Act by
order dated 12.09.2024 also indicated about the same.
5. Mr. Baruah, learned counsel for the petitioner submitted that the petitioner, being a teacher
in Government school, there is no such situation of his absconding from the locality and police has
wrongly filed the charge-sheet showing him to be an absconder in the case. Further, it is also urged
by Mr. Baurha, learned counsel for the petitioner that police did not issue him any notice either under
Section 41(A) Cr.P.C. or under Section 35(3) BNSS, 2023.
6. Mr. Baruah, learned counsel for the petitioner also placed before the Court that the same
informant with similar nature of allegation involving her own daughter, i.e., the present victim in the
case lodged and FIR against one Sultan Ahmed just a month prior to lodging of the FIR in the present
case.
7. Placing both the FIRs lodged by the same informant, Mr. Baruah, learned counsel for the
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petitioner tried to show the intent of the informant.
8. It is further submitted by Mr. Baruah, learned counsel for the petitioner that by order dated
30.10.2024, the learned Special Judge (POCSO), Hojai fixed the matter on 12.03.2025 for appearance
of the petitioner in said Special (POCSO) Case No.233/2024 stating that since charge-sheet has
already been filed in the case, summons has already been issued and the next date for his
appearance has been fixed on 12.03.2025 and therefore, the Court should consider for his limited bail
for the period up to 12.03.2025 for his appearance in the case before the learned Special Judge.
9. It is submitted by the petitioner that since charge-sheet has already been filed in the case,
there is no such requirement of his custodial detention for investigation of the said Special (POCSO)
Case No.233/2024 arising out of Lanka P.S. Case No. 110/2024.
10. Perused the records that was called for by order dated 26.09.2024 from the Court of learned
Special Judge (POCSO), Hojai.
11. As per the FIR of the case dated 23.03.2024, on 20.03.2024 around 2:00 PM, the charge-
sheeted accused/petitioner came to the house of the informant while she and her minor daughter
were busy in working in her nursery and he informed the informant that he had come to her house to
take rest for some time and he called them from the nursery. Thereafter, the informant, her minor
daughter and the petitioner were having a conversation in the drawing room of the informant. When
the informant left the drawing room to bring something from inside of her house, the
accused/petitioner told her minor daughter that he will show and teach her some lessons from class
text books and he accordingly asked said minor daughter to bring her text books. In that manner, the
petitioner asked the minor daughter of the informant to sit near to him and on the pretext of showing
some lessons from her text books, he touched her private parts. Immediately, the informant's minor
daughter ran inside the room making hue and cry and on being asked said minor victim informed the
informant about the illegal act committed to her by the petitioner. Accordingly, Lanka P.S. Case No.
110/2024 under Section 354(A) IPC read with Section 8 of POCSO Act was registered.
12. The records available before the Court and the charge-sheet indicate that police have seized
the birth certificate of the minor victim and along with the charge-sheet, the relevant reports including
the statement of the minor victim, medical report etc. were also submitted.
13. As per the birth certificate of the victim, her date of birth is 27.08.2012 and it was issued on
18.09.2012 by the Registrar of Birth and Death, Lanka, Nagaon, Assam. As such, from her birth
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certificate, it can be seen that the victim was a minor of 11 years 6 months at the time of the alleged
incident.
14. The charge-sheet indicated that trial of two more criminal cases are pending against the
petitioner being (i) Lanka P.S. Case No. 187/2023 under Sections 420/384/468 IPC, (PRC No.
748/2023) as well as (ii) Lanka P.S. Case No. 367/2018 under Sections 406/354(A)/376/511 IPC Sub-
Section 2 of Section 167 of 2021.
15. The charge-sheet also indicated that since the girl students of Parasuram High School made
complaint against the petitioner for his bad habits of touching the girl students of the said High School
on their person at various places, the petitioner was transferred from Parasuram High School to
Maulana Abdul Hannan Khan High School.
16. Perused the judgment of the Hon'ble Supreme Court in the case of Asha Dubey Vs. the State
of Madhya Pradesh, decided on 12.11.2024 placed before the Court by Mr. Baruah, learned counsel for
the petitioner stating that the petitioner should be considered for his anticipatory bail.
17. However, from the perusal of the said judgment of the Hon'ble Supreme Court in the case of
Asha Dubey (Supra), it is found that the same is not applicable in the present case as the case of
Asha Dubey relates to dowry prohibition and the said case was pending for further investigation.
18. But in the case in hand, the matter relates to the offence under POCSO Act and charge-sheet
in the case has already been filed. Moreover, it is only the Investigating Officer, who in the charge-
sheet has indicated the petitioner to be an absconder during the investigation of the case, but the
Court has not yet found the petitioner to be the absconder in the case in accordance with law.
19. Considering the incriminating materials in the case diary and relevant materials in the charge-
sheet, the Court is not inclined to grant pre-arrest bail to the petitioner, named above, in said Special
(POCSO) Case No.233/2024 arising out of Lanka P.S. Case No. 110/2024.
20. Since the charge-sheet in the case has already been submitted, the petitioner may approach
the appropriate forum for his regular bail in said Special (POCSO) Case No.233/2024 arising out of
Lanka P.S. Case No. 110/2024.
21. For the reasons above, this pre-arrest bail application of the petitioner, namely, Md. Nizam
Uddin @ Nijam Uddin in said Special (POCSO) Case No.233/2024 arising out of Lanka P.S.
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Case No. 110/2024 presently pending before the learned Special Judge (POCSO), Hojai, stands
rejected.
JUDGE
Comparing Assistant
