Advocate for & Anr. v. Central Bureau of Investigation & Anr.

Advocate for the Petitioner : MR. N MAHAJAN, MR. A CHAUDHURY,MR. P K DAS,MR. D BORA Advocate for the Respondent : PP, ASSAM, ABHIJIT PATOR (R-2),MR. P THAKURIA (R-2),G. DAS (R-2) BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA Date : --15.05.2025 ORDER Heard Mr. B.K. Mahajan, the learned counsel for the petitioner and also heard Ms. N. Das, the learned Additional Public Prosecutor appearing on behalf Page No.# 2/5 of the State respondent no. 1 and Mr. P. Thakuria, the learned counsel appearing for the informant/respondent no.2.

This is an application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with prayer for bail as the petitioner is behind bars since

04.04.2025 in connection with Sipajhar P.S. Case No. 54/2025 u/s 10 of POCSO Act, 2012.

Case Diary is received. Perused the same.

It is submitted by Mr. Mahajan, the learned counsel for the petitioner that the accused is in custody since last 41 days and thus the I/O got sufficient time for his custodial interrogation. He further submitted that the accused/petitioner is a doctor by profession and thus there is no probability of absconding rather he will cooperate with the I/O in further investigation of the case, if he is granted with the privilege of bail. Mr. Mahajan also raised the issue that at the time of arrest, the petitioner was never provided with any notice u/s 41(A) Cr.PC, corresponding to Section 35(3) of the BNSS which is required to be followed as per the judgment of Hon’ble Apex Court passed in Santender Kumar Antil v. Central Bureau of Investigation & Anr., reported in 2022 LiveLaw (SC) 577. But, here in the instant case, the petitioner was never provided with any notice to appear before the police station before his arrest in connection with this case. Further, he submitted that the petitioner is in custody since last 41 days and thus, the I/O also got sufficient opportunity to interrogate him keeping him in custody.

Ms. Das, the learned Additional Public Prosecutor submitted in this regard that the victim was a minor at the relevant time of incident and she implicated the present petitioner while recording her statement u/s 183 BNSS. Accordingly, Page No.# 3/5 she raised objection and submitted prayer may not be considered at this stage.

The learned counsel for the informant Mr. Thakuria submitted that there is serious allegation against the doctor and she implicated the accused/petitioner in the present case and hence considering the nature of allegation, the prayer for the petitioner may not be considered at this stage.

Hearing the submission made by learned counsel for both sides, I have also perused the Case Diary and the other relevant documents filed along with the petition. From the materials in the Case Diary, it is seen that the victim girl made incriminating statement against the present petitioner describing as to how she was sexually assaulted by the petitioner. But, it cannot be denied that the petitioner is not served with any notice u/s 41(A) Cr.PC, corresponding to Section 35(3) of the BNSS ,which is mandatory required as per the guideline of the Hon’ble Apex Court.

In case of Santender Kumar Antil v. Central Bureau of Investigation & Anr., reported in 2022 LiveLaw (SC) 577, the Hon’ble Apex Court held that :- “b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A 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.

As per allegation made at FIR, it is seen that the case is registered u/s 10 Page No.# 4/5 of the POCSO Act wherein the punishment prescribed is not less than 5 years and which may extend to 7 years and for which it is essential that a notice u/s 35(3) BNSS is to be served on the petitioner but there was no such compliance of notice u/s 41(A) Cr.PC, corresponding to Section 35(3) of the BNSS.

In the meantime it is also seen that the accused is in custody since last 41 days and thus the I/O got sufficient opportunity to interrogate the accused keeping him in custody and hence I find that further custodial interrogation may not be required for the interest of investigation. Accordingly, I find it is a fit case to enlarge the accused/petitioner on bail.