ORDER

05.08.2024 Heard Mr. A. Dasgupta, learned counsel for the petitioner. Also heard Mr.

R. J. Baruah, learned Addl. Public Prosecutor, Assam appearing for the State respondent No.1 and Mr. N. Ali, learned counsel for the respondent No.2.

This petition under Section 438 Cr.P.C., is filed for granting the privilege of pre-arrest bail to the petitioner, namely, Monirul Islam, apprehending his arrest in connection with Manikpur P.S. Case No. 61/2024 registered u/s

448/363/376(3) of IPC r/w Section 6 of POCOS Act.

It is submitted by the learned counsel for the petitioner that the petitioner and the victim, aged about 16 years were in love and when the victim was forced to get married with someone else against her will by her family members, she went to the house of the petitioner. The parents of the petitioner convinced her to return back to their house with commitment to bring her as daughter-in-law when she would attend the age of majority. Thereafter, in a village meeting it was decided that the petitioner would marry the victim girl or he would pay a compensation of Rs.5,00,000/- to her family members. Out of this discord, the FIR has been lodged.

On the other hand, Mr. R. J. Baruah, learned Additional Public Prosecutor has produced the case diary and submitted that the victim has implicated the petitioner before the Magistrate in her 164 Cr.P.C. statement and as per statement of the victim, the petitioner had committed the alleged offence of sexual assault on several times.

Mr. N. Ali, learned counsel for the respondent No.2 also made objection on granting bail to the petitioner.

I have heard the learned counsel for both the parties and also perused the case diary.

Perusal of case diary reveals sufficient incriminating materials against the petitioner that the victim was sexually abused on several occasions.

Hon’ble Supreme Court has observed that ‘love affair’ is not a ground to grant bail in sexual offence.

In the decision of the Apex Court reported in [2022 SCC OnLine SC 1529]

Sumitha Pradeep v. Arum Kumar C.K. and Another, when the Court granted anticipatory bail to an accused, the matter was challenged before the Apex Court, the Apex Court set aside the order granting anticipatory bail, after referring the order with particular mention, as stated in paragraph Nos. 10 to 16 as under:

10. The High Court, while granting anticipatory bail to the respondent No. 1 herein (original accused), observed in para 9 of the impugned order something which has really disturbed us. Para 9 reads thus:-

"9. With the above principle in mind, when the facts of the case are noticed, it is revealed that the petitioner is the maternal uncle of the victim to whose house the victim went in December, 2021. On 14.12.2021, the victim is alleged to have been asked to sit on the lap of the petitioner, who thereafter is alleged to have hugged and kissed the victim on her cheeks. Though on the one side, there is a possibility of such hugs and kisses being manifestations of affection by an uncle, one cannot ignore the possibility of such show of 'affections' being coloured by sexual overtones. However, those are all matters for investigation."

11. In our considered opinion, the observations made in Para 9 of the impugned order are totally unwarranted and have been made overlooking the specific allegations contained in the FIR, duly supported with the Statement of the victim - girl child under Section 164 of the Code.

12. In a case containing such serious allegations, the High Court ought not to have exercised its jurisdiction in granting protection against arrest, as the Investigating Officer deserves free-hand to take the investigation to its logical conclusion. It goes without saying that appearance before the Investigating Officer who, has been prevented from subjecting Respondent No. 1 to custodial interrogation, can hardly be fruitful to find out the prima facie substance in the allegations, which are of extreme serious in nature.

13. The fact that the victim gir