Md Asadul Hoque vs State Of Assam

Heard Mr. I.A. Hazarika, learned counsel for the petitioner and Mr. R.R. Kaushik, learned Additional Public Prosecutor for the respondent State of

Assam.

By this application under Section 438, Code of Criminal Procedure, 1973 (CrPC), the petitioner viz. Md. Asadul Hoque has approached this Court

seeking the benefit of pre-arrest bail, apprehending his arrest, in connection with Mayong Police Station Case No. 166/2021 registered for offences

punishable under Sections 420/376/325/34, Indian Penal Code after rejection of his prayer for pre-arrest bail made in earlier bail application, A.B. no.

3150/2021 which was preferred along with other two accused persons, named in the First Information Report [FIR], by an order dated 28.10.2021

after perusal of the materials available in the case diary produced before the Court.

In the FIR lodged on 26.08.2021, the informant named three persons as accused viz. 1] Md. Asadul Hoque i.e. the present petitioner, 2] Msstt.

Khudeja Khatun i.e. the mother of the present petitioner and 3] Md. Akbar Ali i.e. the father of the present petitioner. By the order dated 28.10.2021

passed in A.B. no. 3150/2021, the other two accused persons viz. Msstt. Khudeja Khatun and Md. Akbar Ali were granted the benefit of pre-arrest

bail under Section 438, CrPC.

In this second bail application, the petitioner has pleaded three grounds, firstly, the ingredients of the alleged offence are not attracted against him;

secondly, the petitioner is still ready to marry the informant without any condition and that the informant was having a love affair with the petitioner is

evident from the contents of the FIR itself; and thirdly, the informant is above 18 years of age as per his reliable information and the informant has

intentionally concealed her age. Thus, the benefit of +2 years margin of error, as observed in the decision of the Hon’ble Supreme Court of India

in Jay Mala vs. Government of Jammu & Kashmir, reported in [1982] 2 SCC 538, can be made applicable in the case.

In his submissions, Mr. Hazarika, learned counsel for the petitioner has urged the above pleaded grounds for extending the benefit of pre-arrest bail

to the petitioner.

It is settled that after rejection of an application for pre-arrest bail under Section 438, CrPC earlier, there is scope to file a subsequent bail

application for pre-arrest bail if there is change in the fact situation or in law which requires the earlier view being interfered with or where the earlier

finding has become obsolete.

When the previous bail application, A.B. no. 3150/2021 was taken up, the concerned case diary was produced for perusal. While passing the order

dated 28.10.2021 this Court observed as under :

“From the materials in the case diary, it is found that the date of birth of the informant is 10.05.2003. The informant has alleged that the petitioner

no. 1 had developed the relationship since last about 1 [one] year, meaning thereby, he established the physical relationship with her when she was

minor, giving her a false promise of marriage. From the statement of the informant recorded under Section 164, CrPC, available in the case diary, it is

noticed that the petitioner no. 1 had established the physical relationship with the informant and used to make her consume tablets without any

intention to marry her.â€​

In so far as the first ground is concerned, this Court had already dealt on the said aspect in the previous order dated 28.10.2021 and, thus, needs no

reconsideration.

With regard to the second ground urged on behalf of the petitioner that the petitioner is still ready to marry the informant without any condition as

the petitioner and the victim had a love affair, this Court has taken note of the fact that in the previous order dated 28.10.2021 it was observed that

from the materials in the case diary that the petitioner established physical relationship with the informant when she was minor by giving her false

promise to marry. The Hon’ble Supreme Court of India in the case of State of Madhya Pradesh vs. Madanlal, reported in [2015] 7 SCC 681, has

observed that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes

against the body of a woman which is her own temple. The decision has further observed as under :

“These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can

conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasureâ€, is lost. Dignity of a woman is

a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it

would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to

enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain

absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of

spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.â€​

In view of the above observations, this Court finds the ground that the petitioner’s readiness to marry the informant cannot be a ground to

reconsider the earlier order of rejection.

In so far as the third ground regarding age is concerned, it had already been observed in the previous order dated 28.10.2021 that the date of birth

of the informant is 10.05.2003. It was also observed that the physical relationship was established by the petitioner with the informant when she was

minor, giving her false promise to marriage. In view of availability of such prima facie material as regards the age of the informant in the already

collected materials, the decision in Jay Mala [supra] is found not relevant to be gone into for consideration of a prayer for pre-arrest bail of the

petitioner at this stage. Thus, the third ground is also not found tenable in this second application for pre-arrest bail preferred for the second time.

In view of the above discussion, this Court is not persuaded to entertain this second bail application for pre-arrest bail of the petitioner under

Section 438, CrPC. Accordingly, the same is rejected.