Gauhati High Court
Mofijur Hoque @ Mofidul Hoque vs The State Of Assam And Anr on 20 March, 2025
Author: Malasri Nandi
Bench: Malasri Nandi
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GAHC010240342024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3504/2024
MOFIJUR HOQUE @ MOFIDUL HOQUE
S/O ABDUL BAREK
R/O NO. 1 GARUGAON,
P.S. AND DIST. BONGAIGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP BY THE PP, ASSAM
2:AJMINA BEGUM
D/O AJIBAR RAHMAN
R/O VILL- NO. 1 GORUGAON
P.S. AND DIST. BONGAIGAON
ASSAM PHONE NO. 938707706
Advocate for the Petitioner : MR. M KHAN, MS J AKTAR,MR A K DAS
Advocate for the Respondent : PP, ASSAM, MS. R CHOUDHURY (Amicus Curiae, R-2)
BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 20.03.2025
Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Ms.
S.H. Borah, learned Additional Public Prosecutor for the State and Mr. M.
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Ahmed, learned counsel appears on behalf of Ms. R. Choudhury, 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, Mofijur
Hoque @ Mofidul Hoque, has prayed for bail in connection with Special (P)
Case No. 102 (BGN)/2024 [arising out of Bongaigaon P.S. Case No.
222/2024] registered under Section 363 IPC added Section 376(2)(n) IPC r/w
Section 6 of POCSO Act, pending in the court of learned Special Judge,
Bongaigaon.
3. The learned counsel for the accused/petitioner submits that the
petitioner has been languishing in judicial custody for last 251 days since his
arrest on 13.07.2024. It is also submitted that out of 13(thirteen) witnesses,
only 3(three) witnesses have been examined as such, it will take much time to
complete the trial. In view of the acquisition spelt out against the petitioner as
well as considering the period of detention, the petitioner may be enlarged on
bail.
4. On the other hand, Ms. Borah, learned Additional Public Prosecutor
has raised strong objection by stating that the informant and the victim had
categorically stated in their evidence that the petitioner committed rape upon
the victim girl and at the relevant time of the incident, the victim was a minor
girl. Considering the fact as well as the nature of offence, bail may not be
granted to the petitioner at this stage of trial.
5. Mr. M. Ahmed, learned counsel appears on behalf of Ms. R.
Choudhury, learned Amicus Curiae for the respondent No. 2, has opposed in
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granting bail to the petitioner.
6. 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 witnesses.
7. 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
the deposition of the victim, it will have its own impact on the
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pending trial when it comes to appreciating the oral evidence of the
victim........."
8. Having heard the learned counsel for the parties and examined the
matter in its entirety, I find that out of 13(thirteen) witnesses, only 3(three)
witnesses have been examined. Considering the gravity of the offence and
severity of punishment, 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.
9. 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.
10. In view of the above, the bail application stands disposed of.
JUDGE
Comparing Assistant
