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2024 Supreme(Online)(GAU) 11904
HIGH COURT OF GAUHATI
Malasri Nandi, J
ZINNATUL ISLAM – Appellant
Versus
THE STATE OF ASSAM AND ANR – Respondent
Bail Appln. / 2741 / 2024
MR. A CHAUDHURY, MR. S HAQUE, MR. N MAHAJAN, MR. D BORA, MR. P K DAS, PP, ASSAM, DR. P AGARWAL, AMICUS CURIAE
Non-compliance with procedural requirements for bail entitles the accused to bail, reaffirming the importance of adherence to legal mandates.
Headnote:(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 483 - Indian Penal Code, 1860 - Section 354-A(2) - Protection of Children from Sexual Offences Act, 2012 - Sections 8/12 - Bail application - Accused, a Head Master, sought bail after being in custody since 01.09.2024, with the FIR lodged 44 days post-incident - Non-compliance with Section 35(3) BNSS, requiring notice to be served to the petitioner, was noted - In light of the maximum punishment of five years and the absence of notice, bail granted. (Paras 2, 8, 9)
(B) Bail - Conditions - Conditions imposed include not leaving jurisdiction without permission, no inducements to witnesses, not hampering investigation, and weekly appearances before Investigating Officer. (Paras 10, 11)
Facts of the case:
The accused was detained for allegedly inappropriately touching a minor, with the FIR filed significantly after the incident. The petitioner argued for bail based on health issues and procedural non-compliance.
Findings of Court:
The court found that the lack of notice under Section 35(3) BNSS warranted the granting of bail.
Issues: The main issue was whether the procedural requirements for bail under BNSS were met and the implications of the FIR's delay.
Ratio Decidendi: The court emphasized the necessity of procedural compliance for bail eligibility, stating that non-compliance entitles the accused to bail.
Result: Bail granted.
ORDER
Date : 04.10.2024 Heard Mr. B.K. Mahajan, learned counsel for the petitioner. Also heard Mr. D.P. Goswami, learned Additional Public Prosecutor for the State and Dr. P. Agarwal, learned Amicus Curiae for the respondent No. 2.
2. By this application filed under section 483 of the Bharatiya Nagarik Suraskha Sanhita, 2023, the accused petitioner namely, Zinnatul Islam, has prayed for bail in connection with Kayan P.S. Case No. 41/2024 under Section 354-A(2) of IPC r/w Section 8/12 of POCSO Act, 2012.
3. It has been submitted by the learned counsel for the petitioner that the petitioner is a Head Master in 203 No. Lachi Bishnupur L.P. School, Kamrup. It is also submitted that the FIR was lodged after 44 days of the incident and there is no explanation to that effect. The petitioner has been detained in custody since 01.09.2024. He has already been suspended from his service. 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.
4. The learned counsel for the petitioner has also submitted that the petitioner is suffering from various ailments and presently he is under constant medication. Considering the health condition 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.
5. Mr. Goswami, learned Additional Public Prosecutor for the State and Dr. Agarwal, learned Amicus Curiae for the respondent No. 2 have categorically submit that the victim girl stated in her statement recorded under Section 183 BNSS (164 Cr.P.C.) that the accused/petitioner inappropriately touched her belly and they have also raised strong objection in granting bail to the petitioner. The learned Additional Public Prosecutor also submits that there is no reflection in the case diary that notice under Section 35(3) of BNSS was issued against the petitioner.
6. I have considered the submissions made by the learned counsel for the parties. I have also perused the case diary.
7. 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.”
8. In the light of the allegations in the FIR, the maximum punishment being five years with fine for the offence under Section 8/12 of POCSO Act, it is essential that a notice under Section 35(3) BNSS be served to the petitioner. The Additional Public Prosecutor has 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.
9. Accordingly, the petitioner, named above, shall be released on bail in connection with Kayan P.S. Case No. 41/2024 under Section 354-A(2) of IPC r/w Section 8/12 of POCSO Act, on furnishing bail bond of Rs.50,000/- with two suitable sureties of the like amount to the satisfaction of learned Special Judge, Rangia, Kamrup, Assam.
10. The direction for bail is further subject to the conditions that the petitioner:
(a) shall not leave the territorial jurisdiction of learned Special Judge, Rangia, Kamrup, Assam without prior written permission from him/her;
(b) shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted wi
