Abdul Khalek vs The State Of Assam And Anr
2025 Latest Caselaw 28 Gua

Gauhati High Court

Abdul Khalek vs The State Of Assam And Anr on 1 April, 2025

Author: Malasri Nandi

Bench: Malasri Nandi

                                                                         Page No.# 1/4

GAHC010125172024




                                                                  undefined

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

                               Case No. : Bail Appln./1857/2024

            ABDUL KHALEK
            S/O EYAD ALI
            VILL- GHORAMARA PT.I
            P.S. MERERCHAR
            DIST. BONGAIGAON, ASSAM

            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP BY THE PP, ASSAM

            2:ALTAB ALI
             S/O SK. DAUD
            VILL- DOLAIGAON UZANPARA
             P.S. BONGAIGAON
             DIST. BONGAIGAON
            ASSAM
             PIN-78338

Advocate for the Petitioner   : MR. A M AHMED, P. GHOSH,MRS S RAHANA

Advocate for the Respondent : PP, ASSAM, MS. M K BROWN, (LEGAL AID COUNSEL, R2),MS
S ISLAM(R-2),MS. T SOM(R-2)


                                  BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                          ORDER

Date : 01.04.2025

Heard Mr. A.M. Ahmed, learned counsel for the petitioner. Also heard Mr. B. Sarma, learned Additional Public Prosecutor for the State and Ms. M.K. Page No.# 2/4

Brown, learned Amicus Curiae for the respondent No. 2.

2. By this bail application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, the accused petitioner namely, Abdul Khalek, has prayed for bail in connection with Special (P) Case No. 34(BNG)/2024 [arising out of Bongaigaon P.S. Case No. 52/2024] registered under Section 354(A) IPC r/w Section 10 of POCSO Act, pending in the court of learned Special Judge, Bongaigaon.

3. The matter relates to sexual assault towards 12 years old victim girl.

4. The learned counsel for the petitioner has submitted that the informant and the victim girl have already been examined by the learned trial court. It is also submitted that the petitioner has been languishing in judicial custody for last 390 days since his arrest on 06.03.2024. It is further submitted that in the offence under Section 10 of POCSO Act, the maximum punishment extended to 7(seven) years. Considering the fact that the informant and the victim girl have already been examined as well as period of detention, the petitioner may be enlarged on bail.

5. On the other hand, Mr. Sarma, learned Additional Public Prosecutor submits that the victim has already been examined by the learned trial court, wherein the victim implicated the present petitioner in this case. It is also submitted that some other witnesses are yet to be examined in this case. Considering the fact as well as the nature of offence, bail may not be granted to the petitioner at this stage of trial.

6. Ms. Brown, learned Amicus Curiae for the respondent No. 2, has opposed in granting bail to the petitioner in the same tune by stating that the Page No.# 3/4

victim girl has been sexually abused by the petitioner. As such, bail may not be granted to the petitioner.

7. I have considered the submissions made by the learned counsel for the parties. I have also perused the scanned copy of trial court records including the evidence of the victim girl.

8. In the case of X Vs. State of Rajasthan & Anr. [Special Leave Petition (Criminal) No. 13378 of 2024], the Hon'ble Supreme Court held that-

"14. Ordinarily in serious offences like rape, murder, dacoity, etc.,

once the trial commences and the prosecution starts examining its witnesses, the Court be it the Trial Court or the High Court should be loath in entertaining the bail application of the accused.

15. Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim.

16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into Page No.# 4/4

the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim........."

9. It is true that the victim girl was examined before the learned trial court. However, as it appears that the victim implicated the petitioner by stating that she has been sexually abused by the petitioner. The other vital witnesses are yet to be examined. Considering the nature of the offence, this Court does not find any ground to release the petitioner on bail in the light of the judgment of Hon'ble Supreme Court in the cases of X v. State of Rajanthan & Anr. (supra), Neeru Yadav vs. State of Uttar Pradesh, (2015) V. 3 SCC 527 and Sudha Singh vs. State of Uttar Pradesh & Anr. (2021) V.4 SCC 781.

10. Accordingly, the bail application is rejected. However, learned trial court is directed to expedite the trial of the case by fixing day to day hearing, if possible. It is made clear that observation contained in the instant order is confined to the issue of bail application only and shall not affect the merit of the case.

11. In view of the above, the bail application stands disposed of.

JUDGE

Comparing Assistant