ORDER

18.11.2024 Heard Mr. S I Akand, learned counsel for the petitioner and Mr. B Sarma, learned Additional Public Prosecutor, Assam for the State. Also heard Ms. B Sarma, learned Legal Aid Counsel for the informant as well as the minor victim, opposite party Nos.2 and 3.

2) By this application filed under Section 439 Cr.P.C., 1973, the petitioner, namely, Md. Naused Ali @Nashwed Ali, son of Late Ali Akbar @Ali Aakabar, resident of Bhujkhowa Chapori, P.S.-Tezpur, District- Sonitpur, has prayed for his bail in Special POSCO Case No. 179/2023 arising out of Tezpur Police Station Case No.832/2023, corresponding to GR No.1720/23, registered under Section 376 of the I.P.C. read with Section 4 of the POCSO Act, 2012, in which, he was arrested on 09.10.2023 and is in custody since then.

3) It is contended on behalf of the petitioner that he was arrested on 09.10.2023 in said Tezpur P.S. Case No.832/2023 under Section 376 of the I.P.C. read with Section 4 of the POCSO Act, 2012 and is in custody for more than 405 days, since 09.10.2023.

4) It is also stated on behalf of the petitioner that in the meanwhile, Charge-Sheet has been filed in the case and charges under Section 376 of the I.P.C. read with Section 4 of the POCSO Act, 2012 has been framed against him and the statement of the victim under Section 164 Cr.P.C. as well as her evidence has also been recorded and that the petitioner should be considered for his bail in said Special POSCO Case No. 179/2023 arising out of said Tezpur P.S. Case No.832/2023.

5) As per the FIR dated 08.10.2024 lodged by the informant, father of the victim, opposite party No.2, the case is that his minor daughter aged about 14 years and studying in class 6, while suffering from stomach ache, was taken to Tezpur for her medical examination.

6) During such medical examination, informant’s minor daughter was found to be pregnant for 7 months.

7) While enquiring about the same, his minor daughter revealed that it is the petitioner who committed rape on her repeatedly on many occasions and impregnated her. 8) On the basis of the said FIR dated 08.10.2023, Tezpur P.S. Case No.832/2023 corresponding to GR No.1720/23 under Section 376 of the I.P.C. read with Section 4 of the POCSO Act, 2012 was registered.

9) In support of his case, Mr. Akand, learned counsel for the petitioner, relied upon the decision of the Hon’ble Supreme Court in the case of Hussainara Khatoon & Ors Vs Home Secretary, State of Bihar, reported in 1980(1) SCC 115, wherein, the Hon’ble Apex Court have held that when a person is accused of more than one offence, the sentences of imprisonment imposed on him are directed to run concurrently, but assuming the sentences of imprisonment may be consecutive, the undertrial prisoners have to suffer in incarceration for the maximum period, for which, they could be sent to jail for conviction of multiple offences.

10) In said decision of Hussainara Khatoon (Supra) , their Lordships have also held that there is absolutely no reason why the undertrials be allowed to continue in jail for a moment longer, since such continuations of detention could be violative not only of human dignity but also of their Fundamental Rights under Article 21 of the Constitution.

11) Mr. Akand, learned counsel for the petitioner, also relied on the decision of the Hon’ble Himachal Pradesh High Court reported in 2019 0 Supreme (HP) 651 (Dev Raj Vs State of Himachal Pradesh) decided on 27.09.2019, wherein, an undertrial prisoner and an accused, in a case registered under Section 376 of the I.P.C. read with Section 4 of the POCSO Act, 2012, was granted bail during the trial of the case, on compliance of certain conditions imposed upon the said alleged accused/UTP.

12) Perused the up-to-date case record that was called for by the Court vide order dated 08.04.2024.

13) From the case record, it is seen that the statement of the victim was recorded by the concerned Investigating Officer of the case on 08.10.2023 and thereafter the victim was sen