Gauhati High Court
Page No.# 1/6 vs The State Of Assam And Anr on 3 January, 2025
Page No.# 1/6
GAHC010186142024
2025:GAU-AS:63
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2758/2024
KABITA SAIKIA
W/O KRISHNA SAIKIA, R/O VILL- LATAGUA, P.S.-RUPOHI, DIST- NAGAON
AND PRESENTLY R/O HOUSE NO. 5, BY LANE-4, SWARAJ NAGAR, P.S.-
DISPUR, PIN-781005, P.O.-DISPUR, DIST- KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:ANIMA BARMAN
W/O OBEN BARMAN
R/O HOUSING COLONY ROAD
SANKARDEV NAGAR PATH
GANESHGURI
P.S.-DISPUR
P.O.- ASSAM SACHIVALAYA
DIST-KAMRUP (M)
ASSA
Advocate for the Petitioner : MR ARINDAM BARUAH, MS LUBNA CHOUDHURY,U
SWARGIARY
Advocate for the Respondent : PP, ASSAM, MS P DAS (AMICUS CURIAE, R-2)
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BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 03.01.2025
Heard Mr. A. Baruah, learned counsel for the petitioner. Also heard Mr. R.
J. Baruah, learned Additional Public Prosecutor for the State respondent No. 1
and Ms. P. Das, learned Amicus Curiae for the respondent No. 2.
2. This is an application under Section 483 of the BNSS, 2023 praying for
grant of bail to the accused, who has been arrested in connection with Sessions
(Spl.) Case No. 22/2023, under Section 6 of the POCSO Act, 2012, pending
before the Court of learned Special Judge, POCSO, Kamrup(M).
3. Scanned copy of the LCR has already been received. Perused the same.
Heard both sides.
4. It is submitted by Mr. Baruah, learned counsel for the petitioner, that there
are lots of contradictions in the evidences of the witnesses and the statement of
the victim recorded under Section 164 Cr.P.C. wherein only allegation of touch
was brought against the accused. But, subsequently, the case was improved and
the victim made the statement with the allegation of penetration. Further he
submitted that there is also material contradiction in the evidence of the doctor
with the statement made in the F.I.R. He further submitted that the accused is
behind the bar for last 2 years, 2 months & 27 days and till date, 5 (five)
numbers of witnesses are already been examined out of 8 (eight) numbers of
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witnesses including the I.O. More so, 2 (two) witnesses, namely, one Minu and
Nandita, were repeatedly served with summons, but they have not appeared
before the Court which cause delay in disposal of the case and the accused is
still behind the bar and there is no fault on the part of the accused though there
is a delay of more than 2 years in disposal of the case. He further submitted
that the accused also wants to adduce his defence evidence and for the defence
preparation, he may be enlarged on bail.
5. Mr. Baruah further relied on a decision of Hon'ble Apex Court which was
reported vide (2022) 10 SCC 51 (Satender Kumar Antil Vs. Central
Bureau of Investigation & Anr.) and basically emphasized on paragraph No.
52 of the said judgment, wherein it has been held that any sessions triable case,
the trial should normally be concluded within 2 (two) years. He accordingly
submitted that since this is a case under POCSO Act, there is time limit for
completion of the trial by the learned Special Judge. However, even after the
expiry of 2 (two) years, the prosecution is yet to examine 3 (three) witnesses
including the I.O. which may take further considerable time for completion of
the trial.
6. He further relied on another decision of Hon'ble Apex Court passed in the
case of Shri Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab [(1980) 2
SCC 565], wherein also, the Hon'ble Apex Court has held that an accused
person who enjoys freedom is in a much better position to look after his case
and to properly defend himself than if he were in custody. As a presumably
innocent person he is therefore entitled to freedom and every opportunity look
after his own case.
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7. Mr. Baruah further submitted that as the victim and informant has already
been examined by the prosecution, there is no probability of any hampering or
tampering with the evidence of witnesses. Rather, the accused will regularly
appear before the learned Trial Court below and will face the trial. Accordingly,
he prayed that the present accused may be enlarged on bail.
8. Mr. R. J. Baruah, learned Additional Public Prosecutor, submitted in this
regard that the victim is undoubtedly a minor girl of 7/8 years of age and she
implicated the accused in her deposition as PW-3. Accordingly, he submitted
that at this stage, the accused may not be released on bail otherwise there may
be probability of tampering the evidences of other witnesses.
9. Ms. P. Das, learned Amicus Curiae for the respondent No. 2, also submitted
that from the deposition of the PW-3, i.e. the victim, there is a clear allegation
brought against the present accused to attract Section 6 of the POCSO Act.
More so, in the case history recorded by the doctor, it also speaks about the
same. She further submitted that the victim girl is of 7/8 years of age and
accordingly she submitted that if the accused is released on bail at this stage, it
may hamper or tamper with the further trial of the case. She accordingly raised
objection and submitted that this is not at all a fit case wherein the accused
should be enlarge on bail.
10. After hearing the submissions made by the learned counsels appearing on
behalf of the parties, I have also perused the case record and the annexures
filed along with the petition including the deposition of the witnesses and the
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medical report. It is an admitted fact that the victim was a girl of 7/8 years of
age at the relevant time of incident and her deposition also implicated the
accused. Further it is seen that the case is still at the stage of trial and 3 (three)
witnesses are yet to be examined in this case. But the most vital witnesses, i.e.
the victim and the informant, have already been examined by the prosecution
and hence, the question of hampering or tampering with the evidences of vital
witnesses does not arise at this stage.
11. In view of above and also considering the length of detention already
undergone by the accused and further considering the fact that some more time
may be required for completion of trial and also in view of the observation made
by the Hon'ble Apex Court, without going by the merit of the case, I find it a fit
case to allow the accused to go on bail.
12. Accordingly, it is provided that on furnishing a bond of Rs. 50,000/-
(Rupees fifty thousand) only with one surety of like amount to the satisfaction
of the learned Special Judge, Kamrup (M), the accused, namely, Krishna Saikia,
be enlarged on bail, subject to the following conditions:
(i) that the accused shall appear before the Court of learned Special
Judge, Kamrup (M) on each and every date to be fixed by the Court;
(ii) that the accused shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing such facts to
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the Court or to any police officer; and
(iii) that the accused shall not leave the jurisdiction of the learned
Special Judge, Kamrup (M) without prior permission.
13. In terms of above, this bail application stands disposed of.
JUDGE
Comparing Assistant
