Gauhati High Court

Page No.# 1/7 vs The State Of Assam And Anr on 28 May, 2025

Author: Manash Ranjan Pathak

Bench: Manash Ranjan Pathak

                                                                             Page No.# 1/7

GAHC010076952025




                                                                   2025:GAU-AS:6883

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

                               Case No. : Bail Appln./1167/2025

            DULAL HIRA
            SON OF SRI BIPLAB HIRA, RESIDENT OF VILLAGE PACHATIYA W/NO 2,
            P.S. MORIGAON
            DIST.MORIGAON, ASSAM

            VERSUS

            THE STATE OF ASSAM AND ANR
            REPRESENTED BY THE PP, ASSAM

            2:SRI RATNESWAR DAS
             SON OF LATE MISIMAL DAS
             RESIDENT OF BOGHORA

            SILSAKU

            P.S. MORIGAON
             DIST. MORIGAON
            ASSA

Advocate for the Petitioner   : MR. A AHMED, MR A AHMED,U U KHAN,MR. M A
CHOUDHURY

Advocate for the Respondent : PP, ASSAM, MS. D SAIKIA (AMICUS CURAIE, R-2)
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                                           BEFORE
           HON'BLE MR. JUSTICE MANASH RANJAN PATHAK


                                        O R D E R

28-05-2025

Heard Mr. A. Ahmed, learned counsel for the petitioner and Mr. P. Borthakur, learned Additional Public Prosecutor, Assam for the State. Also heard Ms. Debashree Saikia, learned Amicus Curiae for the opposite party No.2, informant, father of the minor victim girl.

2. The petitioner, namely, Dulal Hira, son of Biplab Hira, resident of Village-Pachatiya Ward No.2, Police Station-Morigaon, District- Morigaon, Assam, has filed this application under Section 483 BNSS, 2023 on 08.04.2025 praying for his bail in POCSO Case No. 101/2024, arising out of Morigaon Police Station Case No. 127/2024, registered under Sections 365 IPC, corresponding to GR No. 602/2024, in which, he was arrested on 29.06.2024 and is in custody since then.

3. As per the FIR dated 11.05.2024 prosecution case is that on 10.05.2024 around 09:00 AM minor daughter of the informant aged about 17 years went to Bongora Higher Secondary School from her residence at Bagharaa Silsako Chataipahar, but she did not return home. Even on search locally she could not be found.

4. Said FIR was accordingly registered as Morigaon Police Station Case No. 127/2024 under Section 365 IPC.

5. The petitioner was arrested on 29.06.2024 and was produced before the Court of learned CJM, Morigaon on the same day.

6. By order dated 11.04.2025 the records of said POCSO Case No. 101/2024 along with Morigaon P.S. Case No. 127/2024 were called for. The said recorded was forwarded from the Court of learned Special Judge (POCSO), Morigaon on 23.04.2025.

7. On perusal of the records it is seen that on 01.06.2024 the victim girl was recovered from an isolated house in a paddy field and on 02.06.2024 she was produced before the learned Addl. CJM, Morigaon for recording her statement under Section 164 CrPC. The minor victim girl of 17 years stated before the learned Addl. CJM on 02.06.2024 that she is a Page No.# 3/7

student of Class-X, accused petitioner is known to her father and he used to visit their residence and that way an intimacy grown up between them. On 07.05.2024 in absence of anyone in their house the accused petitioner came there and both of them had sexual relation. Even thereafter, the accused petitioner used to visit her house in absence of others and they had sexual relation again. On 10.05.2024 when she was going to her school, the accused petitioner came to her and asked her to go with him, to which she refused but somehow he enticed her and took her to Fulaguri of Nagaon in a bus and kept her in a house of his relative. During their stay they had physical relation again and both of them went to Meghalaya stayed there for about a week in the house of his paternal aunt. Even when they were at Meghalaya they had physical relation. Then, they came to his house at Pasatia and stayed there for about three days. On 01.06.2024 both of them while taking rest in a house in a paddy field and then police recovered her. Taking the advantage of paddy field the accused petitioner fled away from the said house.

8. Considering such statement of minor victim recorded under Section 164 CrPC, the I.O. of Morigaon P.S. Case No. 127/2024 submitted a prayer before the learned CJM, Morigaon along with the case diary and prayed for adding Section 376 IPC read with Section 6 of the POCSO Act along with 365 IPC.

9. By order dated 29.06.2024 Section 376 IPC read with Section 6 of the POCSO Act was added with Section 365 IPC in said Morigaon P.S. Case No. 127/2024.

10. In the meanwhile, police seized original school certificate of the victim girl issued by the Headmistress of 437 No.Bagheswari Balika L.P. School, where her date of birth was recorded as 7 years 11 months 10 days as on 31.12.2014. As such, on the date of incident in May 2024 the victim girl was 17 years, a child under the POCSO act.

11. The victim girl was medically examined on 01.06.2024 itself in STHG Civil Hospital, Morigaon.

12. After completion of investigation of the case, charge sheet in said Morigaon P.S. Case No. 127/2024 was submitted on 30.06.2024 vide Charge Sheet No. 124 under Sections 365 IPC, read with Section 376 IPC and read with Section 6 of the POCSO Act, against the petitioner.

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13. The learned Special Judge (POCSO), Morigaon on 11.07.2024 took cognizance of the offence under Section 365 IPC, read with Section 376 IPC and read with Section 6 of the POCSO Act. On 12.07.2024 charge under Section 365 IPC, read with Section 376 IPC and read with Section 6 of the POCSO Act were framed against the petitioner.

14. In the Charge Sheet prosecution named seven of its witnesses and from the records of the case, it is seen that as on 26.03.2025, prosecution adduced evidence of four of its witnesses, including informant, the victim girl and two others.

15. The petitioner stated that the victim girl is about 19 years old and both of them had love affair but the family of the informant objected to it as he was a divorce and a labour by profession. It is on the instance of the alleged victim she eloped with the petitioner.

16. According to the petitioner he did not commit any such offence as alleged as she is of 19 years old and she eloped with him at her own will. Therefore, the implication of the petitioner under the relevant sections of law is false and fabricated and with ulterior motive.

17. It is also submitted by the petitioner that at the time of his arrest 29.06.2024 the Investigating Officer of the case, did not comply with the provisions of Section 50 CrPC and thereby violated the provisions of Article 22 of the Constitution of India.

18. In this regard the petitioner annexed the Notice under Section 50 CrPC issued to him at the time of his arrest on 29.06.2024 as well as arrest memo.

19. Mr. Ahmed, learned counsel for the petitioner with regard to non compliance of Section 50 CrPC/ Section 47/48 of the BNSS, placed orders of the Co-ordinate Bench of this Court in different bail applications and submitted that in compliance of the provisions of law laid down by the Hon'ble Supreme Court in the Cases of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254 and Vihaan Kumar Vs. State of Haryana & Anr., reported in (2025) SCC OnLine SC 269.

20. Section 50 of the CrPC read as follows:-

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2)Where a police officer arrests without warrant any person other than a person Page No.# 5/7

accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

21. Notice under Section 50 CrPC issued to the petitioner on 29.06.2024 at the time of his arrest, receipt of which was acknowledged by the petitioner annexed with this petition as Annexure-VII is as follows:

"U/S 50 CrPC

To

Sri Dulal Hira, Age : 34 Yrs.

S/o Sri Biplab Hira, Village : Pachatiya Ward No.2, Police Station: Morigaon District-Morigaon (Assam).

Reference : Morigaon P.S. Case No. 127/2024 U/S : 365 IPC

You are hereby informed that you are under arrested in connection with above reference case which is non-bailable to police. So you will be forwarded to the Hon'ble Court. You may engage your advocate to submit bail petition before Hon'ble Court for bail. The cause and ground of arrest has been notified to you as well as your relative by issuing arrest memo.


       Signature of the arreste
            accused person
        Sd/- Dulal Hira                           Signature of I/O
                                                     SI(P) Raju Chetry

22. Miss Saikia, learned Amicus Curiae on the other hand placed reliance on the three Judges judgment of the Hon'ble Supreme Court in the case Madhu Limaye and others reported in 1969 (1) SCC 292.

23. The victim girl in her statement under Section 164 CrPC stated that on 01.06.2024 the accused petitioner keeping her in the house in the midst of a paddy field fled away taking the advantage of muddy land when police came to apprehend us. It is also seen that the victim girl is of 17 years old, whereas, the accused is of 34 years.

24. Both in the forwarding when the petitioner was produced before the Addl. CJM on 29.06.2024 as well as in the Charge Sheet dated 30.06.2024 filed in the case in hand the concerned Investigating Officer specifically indicated that petitioner is an accused person in Page No.# 6/7

Morigaon P.S. Case No. 129/2018 under Sections 448/294/341/302/365/342/506 IPC and also in Morigaon PS. Case No. 534/2018 under Sections 143/447/448/294/506 IPC and in said Morigaon P.S. Case No. 129/2018, the petitioner is an absconding accused, which the petitioner did not deny in this petition.

25. Petitioner was aware of committing sexual assault on the minor victim and fled away seeing police keeping the victim girl along in the house midst of a paddy field.

26. From the reading of the Notice under Section 50 CrPC it can be seen that the offence of Section 365 IPC was informed to the petitioner while he was arrested and was also informed that for his bail, he can approach the Hon'ble Court by engaging advocate.

27. For the reasons stated above, this Court is of the view that the petitioner is not entitled to the benefit of the orders of the Hon'ble Apex Court in the cases of Prabir Purkayastha (supra) and Vihaan Kumar (supra) though raised the plea that at the time of his arrest grounds of his arrest were not furnished to him.

28. Accordingly, this bail application of the petitioner, Dulal Hira, son of Biplab Hira, in said POCSO Case No. 101/2024, arising out of Morigaon Police Station Case No. 127/2024, registered under Sections 365 IPC, corresponding to GR No. 602/2024, stands rejected.

29. The assistance rendered by Ms. Debashree Saikia, learned Amicus Curiae in adjudicating this case is highly solicited. The Gauhati High Court Legal Services Authority shall pay the remuneration to Ms. Debashree Saikia, learned Amicus Curiae, on raising a bill.