Back
2025 Supreme(Online)(Gau) 7301
GAUHATI HIGH COURT
MRS. JUSTICE SHAMIMA JAHAN, J
JABIR UDDIN AND ANR – Appellant
Versus
THE STATE OF ASSAM – Respondent
AB/3022/2024
For the Appellants/Petitioners: MR. S C BISWAS, MS A DAS, MS. U NANDA, MS A BORAH, MS. J GHOSH, MR. A K DAS
For the Respondents: PP, ASSAM, MR. K MIRA (R-2)
The court denied the anticipatory bail application due to sufficient allegations under the POCSO Act and statutory provisions of BNS, affirming that the FIR indicated serious offences.
Headnote:(A) Section 482 of BNS, 2023 - POCSO Act, 2012 - Pre-arrest bail application dismissed - FIR indicates allegations of kidnapping and manhandling coupled with attempts to establish sexual relations, meeting definitions under POCSO Act - Bar for anticipatory bail under Section 482(4) of BNS applicable, rendering petition unmaintainable. (Paras 1, 2, 3)
(B) Legal Standards - Court's review of FIR indicates sufficient grounds under POCSO Act, and provisions of BNS for maintaining the case - Definition of aggravated penetrative sexual assault detailed. (Paras 5, 6)
Facts of the case:
Petitioners accused of kidnapping and forceful manhandling of a minor, with allegations of attempted sexual relations - Charges substantiated by FIR.
Findings of Court:
The FIR contains serious allegations warranting rejection of anticipatory bail as the statutory provisions prohibiting such grant apply.
Issues: The legality of the anticipatory bail request under the BNS and POCSO Act given the specific allegations in the FIR.
Ratio Decidendi: The court emphasized that FIR contained sufficient details to indicate crimes under applicable laws, denying bail due to the statutory bar in the circumstances.
Result: Petition dismissed.
ORDER
12.08.2025 Heard Mr. S.C. Biswas, learned counsel for the petitioner and Mr. K.K. Parasar, learned Addl. Public Prosecutor as well as Mr. K. Mira, learned counsel for the respondent No. 2.
This is an application filed under Section 482 BNSS, 2023 by which the petitioner has prayed for pre-arrest bail in connection with Badarpur P.S Case No. 220/2024 corresponding to G.R Case No. 1615/24 registered under Section
87/70(2) of BNS read with Section 6 of the POCSO Act , 2012.
The FIR dated 15.08.2024 reveals that while the daughter of the informant was returning along with her friends, the petitioners forcefully took her into a vehicle and closed the door and that for long period, the petitioners man-handled his daughter and forcefully tried to establish relation one by one and had outrage the modesty of the said victim.
Mr. S.C. Biswas, learned counsel for the petitioner submits before this Court that in the FIR there are no ingredients of Section 6 of the POCSO Act much less Section 17(2) of BNS , 2023. He as such submits that although there is a bar in Section 4 82 (4) wherein, it is provided that provisions of Anticipatory Bail would not be available in cases under Section 6 5 as well as Section 70(2) of the BNS , 2023, however, since the ingredients of the said Section 17(2) is not present in the FIR, the said bar would not be applicable. He also submits that the ingredients of Section 6 of the POCSO Act is also not present in the said FIR.
On the other hand, Mr. K.K. Parasar, learned Addl. Public Prosecutor submits the there are ingredients of offence of both Section 6 under the POCSO Act as well as Section 72 of the BNS in the said FIR inasmuch as, there are two (2) accused persons who were alleged to have committed the offence as well as the victim was manhandled by the petitioners. He also submits that charge sheet has been submitted in the instant case vide Charge Sheet dated 30.09.2024.
I have heard the counsels and I have perused the records as well as the law involved in the present case. A bare perusal of the FIR reveals that the victim was kidnapped and was forcefully taken in a vehicle and while taking her, the petitioners had man-handled her and had tried to establish sexual relation with the victim and had outrage her modesty. Section 4 of the POCSO Act not only provides for insertion of the private part into the private part of the victim but also manipulation of the body of the victim, which can be seen in the instant FIR.
Further, Section 6 of the POCSO Act which provides for punishment is relatable to Section 5, which provides the definition thereof, which again provides that whoever commits penetrative sexual assault on a child is said to have committed aggravated penetrative sexual assault and the definition of penetrative sexual assault is provide under Section 4 of the POCSO Act .
Further, it is seen that under Section 4 82 (4) of the BNS , it provides complete bar and the offence committed under Section 70(2) of BNS is writ large in the FIR. As such, the present application praying for Anticipatory Bail by the petitioners is not maintainable. Accordingly, the same is dismissed.
