Babul Das vs State Of Assam

Heard Mr. D. Baruah, learned counsel for the accused-petitioner and Mr. R.J. Baruah, learned Additional Public Prosecutor for the respondent

State of Assam.

By this application under Section 439, Code of Criminal Procedure, 1973 (CrPC), the accused-petitioner viz. Sri Babul Das has prayed for his

release on bail, as he is in custody since 25.12.2020, in connection with Namti Police Station Case no. 27/2020, registered under Section 354A, Indian

Penal Code (IPC) read with Section 8 of Protection of Children from Sexual Offences (POCSO) Act, 2012.

Mr. Baruah, learned counsel for the accused-petitioner has submitted that the accused-petitioner is in custody since 25.12.2020 and more than 5

½ months have passed since his arrest. The investigating authority after completion of investigation, had already submitted the charge sheet on

31.12.2020 against the accused-petitioner finding a prima facie case against him for commission of the offences punishable under Section 354A, IPC

and Section 8, POCSO Act. On submission of the charge sheet, Special POCSO Case no. 01/2021 has already been registered and the trial of the

case is going on. Considering the charges the accused-petitioner is facing in the trial and the prolonged period of custody of the accused-petitioner he

may be released on bail subject to imposition of any terms and conditions. It is further submitted by him that there is no complaint whatsoever against

the accused-petitioner about influencing the witnesses to depose against him.

Learned Additional Public Prosecutor has submitted that though the accused-petitioner is in custody since 25.12.2020, the prayer for bail may not be

considered at this stage considering the nature and gravity of the allegations made against him. He has further emphasized that if the accused-

petitioner is released on bail at this stage of trial, there could be possibility that he might evade the trial or adopt means to influence the witnesses, as

has been observed by the learned trial court in its order dated 22.03.2021.

The scanned copies of the case records of Special POCSO Case no. 01/2021 were requisitioned by order dated 01.06.2021 of this Court and the

same have been received.

I have considered the submissions of the learned counsel for the parties and have also gone through the documents made available with this

application and the scanned copies of the case records of Special POCSO Case no. 01/2021.

The First Information Report (FIR) was registered on 24.12.2020 as Namti Police Station Case no. 27/2020 for offences punishable under Section

354A, IPC and Section 8, POCSO Act. The said FIR was lodged by the father of the victim alleging commission of sexual assault by the accused-

petitioner upon the minor daughter of the informant. The accused-petitioner was arrested and remanded to custody on 25.12.2020 and since then, he

has remained in custody. The Investigating Officer (I.O.) of the case, during the course of investigation, had recorded the statements of the witnesses

and got the victim medically examined. The doctor, who had examined the victim, did not find any injury on the person of the victim. The statements of

the victim, her parents and one independent witness were also recorded under Section 164, CrPC. After completion of investigation, the I.O. of the

case filed the charge sheet under Section 173, CrPC finding a prima facie case against the accused-petitioner for commission of the offences under

Section 354A, IPC and Section 8, POCSO Act.

It is settled that while considering an application for bail under Section 439, CrPC the Court does not embark upon a detail evaluation of the facts on

merits since the trial is yet to be completed upon the submission of the charge sheet. For considering a prayer for bail, the Court is required to weigh

all the relevant factors like nature and gravity of the allegations, the evidence and materials which prima facie show the involvement of the accused,

the extent of his involvement in the offence alleged, possibility of the accused absconding or otherwise delaying the course of justice or evading the

process of trial, reasonable apprehension of witnesses being threatened or influenced or of evidence being tempered with, etc. In the case in hand, the

materials required to be collected to bring home the charge(s) against the accused have been collected and the prosecution is required to prove the

charges against the accused by leading evidence including oral evidence of the prosecution witnesses.

Section 354A, IPC has defined the offence of sexual harassment and provided for punishment for sexual harassment. If the accused commits the

offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) of Section 354A, he shall be punished with rigorous imprisonment for a

term which may extend to three years, or with fine, or with both. If the accused commits the offence of sexual harassment specified in clause (iv) of

sub-section (1) of Section 354A, then such an accused is liable to be punished with imprisonment of either description for a term which may extend to

one year, or with fine, or with both. The offence under Section 354A is bailable in nature. Section 7 of the POCSO Act has defined sexual assault and

Section 8 thereof has provided for the punishment for committing the offence under Section 7. As per Section 8, POCSO Act, whoever, commits

sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to

five years, and shall also be liable to fine.

The scanned copies of the case records indicate that to prove the charges against the accused-petitioner the I.O. has listed 7 (seven) nos. of

persons in the charge sheet as prosecution witnesses. Amongst the witnesses so listed, apart from the victim and both her parents the other witnesses

include two police personnel and two independent witnesses. During the course of the trial till date, the evidence of the victim and her father have

been recorded as P.W.1 and P.W.2. Other than the two police personnel, the evidence of three other witnesses including the victim’s mother, are

yet to be recorded.

It further transpires that the accused-petitioner is a neighbour to the family of the victim. But the same cannot be assumed to indicate that he is in

a position to influence the other prosecution witnesses, as indicated above, who are yet to be examined in the ensuing trial, unless some concrete

materials are available. It has not been brought to the notice of the Court by the learned Additional Public Prosecutor for the State that during the

course of investigation or during the course of ensuing trial there was any complaint as regards any attempt on the part of the accused-petitioner to

derail the course of investigation or to defeat the course of trial. The accused-petitioner was arrested on the date of the commission of the alleged

offence. In a matter regarding granting of bail or not granting of bail, the issues like the liberty of the accused, the interest of the State and the victim

of crime are to be looked into in the interest of proper administration of justice.

Upon due consideration of the nature of allegations made against the accused-petitioner and faced by him during the course of the ensuing trial;

the term of punishment likely to be imposed if he is found guilty for the offences indicated above; the period of more than 5 ½ months the accused-

petitioner is in custody; and the fact that there is no cogent material to conceive that if the accused-petitioner is released on bail he is likely to abscond

or influence the remaining witnesses who are yet to be examined, this Court is of the considered view that further custodial detention of the accused-

petitioner for the purpose of the ensuing trial is not necessary provided he does not adopt to the process of delaying the course of the trial.

Accordingly, it is directed that the accused-petitioner shall be released on bail on furnishing a bail bond of Rs. 25,000/- with one local surety of the

like amount to the satisfaction of the learned Special Judge under the POCSO Act, Sivasagar, subject to the conditions that :-

[i] the accused-petitioner shall not, directly or indirectly, make any inducement, threat or promise to any witness who is going to depose in the ensuing

trial before the Court;

[ii] the accused-petitioner shall not obstruct or hamper the course of trial by playing any mischief;

[iii] the accused-petitioner shall maintain law and order and he shall not commit an offence similar to the offence of which he is accused; and

[iv] the accused-petitioner shall regularly remain present during the trial and co-operate the Court to complete the trial for the above offences.

If breach of any of the above conditions is committed, it would be open for the learned trial court to cancel the order of bail and to commit the

accused-petitioner to custody, without being influenced by the grant of bail by this order.

The application stands disposed of in the aforesaid terms.