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2024 Supreme(Online)(GAU) 11903
HIGH COURT OF GAUHATI
Malasri Nandi, J
JOGEN CHANDRA RAJBONGSHI – Appellant
Versus
THE STATE OF ASSAM AND ANR – Respondent
Bail Appln. / 2746 / 2024
MR. A CHAUDHURY, MR. D BORA, MR. N MAHAJAN, MR. P K DAS, PP, ASSAM, MR NABENDU PATHAK (R-2), MR A CHAKRABORTY (R-2), MR. M P SARMA (R-2)
Non-compliance with notice requirements under Section 35(3) of BNSS entitles the accused to bail, emphasizing the importance of procedural adherence by investigating agencies.
Headnote:(A) Bharatiya Nagarik Suraskha Sanhita, 2023 - Section 75(1) - Protection of Children from Sexual Offences Act, 2012 - Section 12 - Bail application filed under Section 483 - Non-compliance with notice requirements under Section 35(3) of BNSS - Petitioner, a Head Master, detained since 03.09.2024, entitled to bail due to procedural lapses. (Paras 2, 3, 7, 8)
(B) Compliance with procedural mandates - Investigating agencies must adhere to Section 41 and 41A of the Code; non-compliance may warrant bail. (Paras 6, 7)
Facts of the case:
The petitioner, a Head Master, is accused of inappropriate conduct towards a minor and has been in custody since September 2024 without receiving a required notice under BNSS.
Findings of Court:
The court found that the lack of a notice under Section 35(3) BNSS entitles the petitioner to bail.
Issues: The court addressed whether the procedural requirements for notice were fulfilled before detaining the petitioner.
Ratio Decidendi: The court emphasized the necessity of compliance with statutory provisions, asserting that non-compliance with notice requirements justifies bail.
Result: Bail granted.
ORDER
Date : 04.10.2024 Heard Mr. A. Chaudhury, learned counsel for the petitioner. Also heard Mr. K.K. Parasar, learned Additional Public Prosecutor for the State and Mr. M.P. Sarma, learned counsel for the respondent No. 2.
2. By this application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita , 2023, the accused petitioner namely, Jogen Chandra Rajbongshi, has prayed for bail in connection with Tamulpur P.S. Case No. 217/2024 under Section 75(1) of BNS, 2023 r/w Section 12 of POCSO Act, 2012.
3. It has been submitted by the learned counsel for the petitioner that the petitioner is a Head Master of Barkhopa High School, Barigaon, Tamulpur and he is about 56 years of age. It is also submitted that the petitioner has been detained in custody since 03.09.2024. According to the learned counsel for the petitioner, a notice under Section 35(3) of BNSS, 2023 corresponding to Section 41(A) Cr.P.C. is required to be served to the petitioner as per guidelines laid down by the Hon’ble Supreme Court. However, no such notice was issued to the petitioner. Considering the background of the case as well as non- compliance with the provision of Section 35(3) of BNSS, the petitioner may be enlarged on bail.
In support of his submission, the learned counsel for the petitioner has referred a Bail Application vide BA No. 3014/2022.
4. Mr. Goswami, learned Additional Public Prosecutor for the State and Mr. Sarma, learned counsel for the respondent No. 2 have categorically submit that the victim girl stated in her evidence that the accused/petitioner inappropriately touched her body and harassed her for last five months. The learned Additional Public Prosecutor also submits that there is no reflection in the case diary that notice under Section 41(A) Cr.P.C. was issued against the petitioner.
5. I have considered the submissions made by the learned counsel for the parties. I have also perused the case diary.
6. In the case of Santender Kumar Antil v. Central Bureau of Investigation & Anr. reported in 2022 LiveLaw (SC) 577 , the Hon’ble Supreme Court held that-
“b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41 A of the Code and the directions issued by this Court in Arnes Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.
c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.
7. In the light of the allegations in the FIR, the maximum punishment being three years with fine for the offence under Section 75(1) of BNS, 2023 and 12 of POCSO Act, it is essential that a notice under Section 35(3) BNSS be served to the petitioner. The learned counsel for the parties have confirmed that no such notice has been issued to the petitioner. In view of the above, this Court is inclined to grant bail to the petitioner.
8. Accordingly, the petitioner, named above, shall be released on bail in connection with Tamulpur P.S. Case No. 217/2024 under Section 75(1) of BNS, 2023 r/w Section 12 of POCSO Act, 2012, on furnishing bail bond of Rs.50,000/- with two suitable sureties of the like amount to the satisfaction of learned Special Judge, Mushalpur, Baksa, Assam.
9. The direction for bail is further subject to the conditions that the petitioner:
(a) shall not leave the territorial jurisdiction of learned Special Judge, Mushalpur, Baksa, Assam without prior written permission from him/her;
(b) shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(c) shall not hamper with the investigation, or tamper with the evidence of the case;
(d) shall appear before the Investigating Police Officer once in a week for six weeks after his release on bail as and
