Abdul Motaleb And 2 Ors. vs State Of Assam

The Court proceedings have been conducted through remote video conferencing mode due to the prevailing situation in the State due to Covid-19

pandemic.

Heard Mr. H.R.A. Choudhury, learned Senior counsel for the petitioners and Mr. T.K. Misra, learned Additional Public Prosecutor for the

respondent State of Assam.

By this application under Section 438, Code of Criminal Procedure, 1973 (CrPC), the petitioners viz. 1) Abdul Motaleb, 2) Abdul Latif @ Latif Ali,

and 3) Hajrat Ali have approached this Court seeking the benefit of pre-arrest bail, apprehending their arrest, in connection with Bilasipara Police

Station Case no. 402/2021, registered under Sections 363/376/325, Indian Penal Code (IPC) read with Section 4 of Protection of Children from Sexual

Offences Act, 2012.

In the First Information Report (FIR) lodged on 01.05.2021, the informant has inter alia alleged that in the night intervening of 28.04.2021 and

29.04.2021, at about 03-00 a.m., his minor daughter was kidnapped by the petitioner no. 1. After kidnapping her minor daughter, the petitioner no. 1

confined his daughter inside a room and committed rape upon her. Allegations are further made to the effect that when the victim raised hue and cry

the other two petitioners made the petitioner no. 1 to escape from his house and kept the victim confined in the house. The other two petitioners had

thereafter, physically assaulted her and lather on, the victim girl was recovered with the assistance of police.

Mr. Choudhury has submitted that the petitioner no. 2 is the father of the petitioner no. 1 and the petitioner no. 1 is the son-in-law of the petitioner

no. 2. It is his submission that the allegations against the petitioner no. 2 and the petitioner no. 3 are baseless. In so far as the allegations against the

petitioner no. 1 is concerned, he has submitted that there was a close relationship between the petitioner no. 1 and the victim girl. The informant had

proposed the marriage of the victim girl with the petitioner no. 1 but due to her not attaining majority, the proposal was refused by the family member

of the petitioners. It was in such background, the FIR has been lodged.

Learned Additional Public Prosecutor has submitted that he has received the concerned case diary. He has submitted, on the basis of the materials

available in the case diary collected during the investigation carried out so far, that there are sufficient materials to indicate about the involvement of

the petitioner no. 1 in committing forceful sexual assault upon the minor victim after kidnapping her. The informant in her statements, recorded under

Section 161, CrPC and under Section 164, CrPC, has clearly implicated the petitioner no. 1. In neither of the statements, the minor victim girl had

named the petitioner no. 2 implicating him in the manner, as alleged in the FIR. He has further submitted that as regards the involvement of the

petitioner no. 3 about physically assaulting the victim, the statements of the victim recorded under Section 161, CrPC and under Section 164, CrPC are

found at variance. While the victim did not implicate the petitioner no. 3 in her statement under Section 161, CrPC she had implicated him in her

statement under Section 164, CrPC.

I have considered the submissions of the learned counsel for the parties and taken note of the materials available in the case diary, as referred to by

the learned Additional Public Prosecutor, as the case diary is available with him.

In so far as the prayer for pre-arrest bail of the petitioner no. 1 is concerned, I am not inclined to extend the benefit of pre-arrest bail under Section

438, CrPC to the petitioner no. 1 as there are specific allegations against him by the victim. Accordingly, the prayer for pre-arrest bail of the petitioner

no. 1 is rejected.

Considering the fact that no serious allegations have been made against the petitioner no. 2 and the inconsistent statements made by the victim as

regards involvement of the petitioner no. 3, I am of the considered view that custodial interrogations of the petitioner nos. 2 and 3 appear not

necessary for the purpose of carrying out investigation and their release on pre-arrest bail, at this stage of investigation, are not likely to cause any

prejudicial effect in the further investigation of the case, provided they extend their assistance and co-operation in the further investigation of the case.

Accordingly, it is provided that in the event of arrest of the petitioner no. 2, Abdul Latif @ Latif Ali, and the petitioner no. 3, Hajrat Ali, in

connection with Bilasipara Police Station Case no. 402/2021 they shall be released on bail on furnishing a bail bond of Rs. 20,000/- each with one local

surety each of the like amount, to the satisfaction of the arresting authority subject to the conditions that :

[i] the petitioner nos. 2 and 3 shall appear before the Investigating Officer (I.O.) of the case within 10 (ten) days from today to record their statements

and shall cooperate with the investigation;

[ii] the petitioner nos. 2 and 3 shall thereafter, make themselves available as and when their presence are required by the I.O. in the investigation of

the case;

[iii] the petitioner nos. 2 and 3 shall not, directly or indirectly, make any inducement, threat or promise to any witness acquainted with the facts of the

case so as to dissuade them from disclosing such facts to the court or to any police officer;

[iv] the petitioner nos. 2 and 3 shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be

collected by the police; and

[v] the petitioner nos. 2 and 3 shall maintain law and order and he shall not commit an offence similar to the offence of which they are accused, or of

the commission of which they are suspected.

The bail application stands disposed of in the aforesaid terms.