EAKUB ALI @ EYAKUB ALI v. THE STATE OF ASSAM AND ANR

ORDER Heard Mr. M R Khandakar, learned counsel for the petitioner and Mr. K K Das, learned Additional Public Prosecutor, Assam for the State. Also heard Dr. Pooja Agarwal, learned Amicus Curiae appearing for the opposite party No. 2/mother of the minor victim girl/informant of the case.

The petitioner, namely, Eakub Ali @ Eyakub Ali, son of Ismail Hussain @ Islam Sheikh, resident of village-Chamrashali, Police Station-Mankachar, District-South Salmara Mankachar has filed this application under Section 483 BNSS, 2023 praying for his bail in Special (POCSO) Case No. 25/2025, arising out of Mankachar Police Station Case No. 196/2024, registered under Sections 64(2)(F)/62/126(2)/115(2)/351(2) of BNS read with Section 8 of the POCSO Act, corresponding to GR No. 432/2024, pending before the Court of the learned Special Judge (POCSO), South Salmara, Mankachar, in which he was arrested on 22.02.2025 and is in custody since then.

Prosecution’s case is that the opposite party No. 2 on 18.09.2024 lodged a written Azahar before the Officer-in-Charge of Kalapani Outpost under the jurisdiction of Mankachar Police Station alleging that when her minor daughter while returning from the Madrassa on 16.09.2024 in the afternoon at around 4:30 PM visited the house of the informant’s brother to have a glass of water, while waiting there in her brother’s house, the accused petitioner, her nephew grabbed her from backside, touched her private parts, pulled her down to the ground and tried to commit rape on her forcefully. At that stage, when her minor daughter made hue and cry, informant’s brother and sister-in-law came out and instead of protecting her both of them assaulted her along with her nephew, son of her brother. The accused petitioner is the nephew of the informant. Thereafter, the accused petitioner along with her brother and sister-in-law and other nephew threatened Page No.# 3/8 her and the other nephew brought her back to her residence.

Said FIR was accordingly registered as Mankachar Police Station Case No. 196/2024 under Sections 64(2)(F)/62/126(2)/115(2)/351(2) of BNS read with Section 8 of the POCSO Act, corresponding to GR No. 432/2024.

By order dated 13.05.2025 the Court called for the records of said Special (POCSO) Case No. 25/2025 along with the records of Mankachar P.S. Case No. 196/2024.

On perusal of the records, it is seen that the statement of the minor victim girl was recorded by the learned Judicial Magistrate First Class, South Salmara, Mankachar on

14.10.2024, in which the minor victim girl implicated the petitioner of grabbing her from backside, pulling her down to the ground and trying to commit rape on her forcefully.

It is also seen from the records of the case that the concerned Instigating Officer has already seized the original Birth Certificate of the minor victim girl issued by the Registrar of Birth and Deaths, Gozarikandi PHC issued vide Registration No. 1380/12.09.2007 on 28.09.2007, indicating the date of birth of the minor girl as

09.09.2007. As such, on the date of the incident the minor victim girl was just 17 years old, a minor under the POCSO Act.

All the accused persons of said Mankachar P.S. Case No. 196/2024 prayed for their pre-arrest bail, including the present petitioner and the Court after perusal of the case diary rejected the pre-arrest bail prayer of the present petitioner and granted pre-arrest bail to the father, mother and younger brother by order dated 03.12.2024 passed in AB No. 2873/2024 (Eakub Ali @ Eyakub Ali and 3 Others -Vs- State of Assam and Anr).

It is submitted by the petitioner that he was arrested on 22.02.2025 in said Mankachar P.S. Case No. 196/2024 and was produced before the Court of the learned Special Judge (POCSO), South Salmara, Mankachar on 22.02.2025 itself and is in custody since then. Page No.# 4/8

Petitioner contended that as required under the law, more particularly, Sections 47 & 48 of the BNSS as well as the law laid down by the Hon’ble Supreme Court in the cases of Prabir Purkayastha Vs. State (NCT of Delhi), reported in (2024) 8 SCC 254 and Vihaan Kumar Vs. State of Haryana & Anr., reported in (2025) SCC OnLine SC 269 , the Investigating Officer/arresting authority did not inform him the reasons of arrest as well as the grounds of arrest while arresting him on 22.02.2025 and thereby violated the provisions of Article 22 of the Constitution. As such, the petitioner has prayed for his bail in said Special (POCSO) Case No. 25/2025, arising out of Mankachar P.S. Case No. 196/2024.

On completion of the investigation of the case, the concerned Investigating Officer of the case on 28.02.2025 submitted Charge-Sheet in said Mankachar P.S. Case No. 196/2024 under Section 75 of the BNS read with Section 10 of the POCSO Act against the petitioner and did not find any sufficient evidence against the other three accused persons of the case.

Mr. K K Das, learned APP, Assam appearing for the State placed before the Court that on 09.04.2025 the learned Special Judge (POCSO) while rejecting the bail prayer of the petitioner in said Special (POCSO) Case No. 25/2025, considered the fact that the informant and minor victim of the case after receipt of the notice filed their objections, alleging that the accused petitioner has been threatening them and other witnesses of the case.

The learned Special Judge (POCSO), South Salmara, Mankachar considering the said fact as well as considering that Charge-Sheet in the case has already been filed where charges are yet to be framed, rejected the bail prayer of the petitioner. Mr. K K Das, learned APP, Assam therefore submitted that the petitioner should not be released on bail.

Dr. Pooja Agarwal, learned Amicus Curiae appearing for the informant of the case submitted that the accused petitioner is the own nephew of the informant and cousin Page No.# 5/8 brother of the minor victim girl.

From the Forwarding Report of the accused petitioner dated 22.02.2025 as well as the order of the learned Special Judge (POCSO), South Salmara, Mankachar dated

09.04.2025, noted above, Dr. Pooja Agarwal, learned Amicus Curiae has submitted that the accused petitioner threatened the minor victim girl as well as the informant of the case and that if at this stage the accused petitioner is released on bail where charges in the case are yet to be framed and the deposition of the minor victim girl is yet to be recorded, there is all possibility that the accused petitioner shall continue to threaten both of them. Therefore, Dr. Pooja Agarwal, learned Amicus Curiae has submitted that the accused petitioner is not entitled for his bail in said Special (POCSO) Case No. 25/2025 arising out of Mankachar P.S. Case No. 196/2024.

The ground taken by the petitioner for his bail in said Special (POCSO) Case No. 25/2025 pending before the Court of the learned Special Judge (POCSO), South Salmara, Mankachar, as noted above, is that there was violation of the provisions of Article 22 of the Constitution as he was not informed of the reasons and grounds of his arrest as required under Sections 47 & 48 of the BNSS.

Section 47 of the BNSS stipulates as follows – Person arrested to be informed of grounds of arrest and of right to bail – (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Section 48 of the BNSS stipulates as follows – Obligation of person making arrest to inform about arrest, etc., to relative or friend – Page No.# 6/8 (1) Every police officer or other person making any arrest under this Sanhita shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his relatives, friends or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information and also to the designated police officer in the district. (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as the State Government may, by rules, provide. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirement of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.

From the records of the case it is seen that at the time of arrest of the accused petitioner on 22.02.2025, the Investigating Officer of the case duly complied with the provisions of Section 48 BNSS as it can be seen that in the Arrest Memo relevant Sections of BNS and POCSO along with the concerned Police Case Number had been incorporated under which the accused petitioner was arrested, copy of which was furnished to one Islam Sheikh, relative of the petitioner.

Further, from the records it is also seen that while arresting the petitioner in said Mankachar P.S. Case No. 196/2024 on 22.02.2025, Notice under Section 47 BNSS was served upon the petitioner, stating that he has been arrested under Sections 64(2) (F)/62/126(2)/115(2) of BNS read with Section 8 of the POCSO Act in said Mankachar P.S. Case No. 196/2024 which is non-bailable to police and informing him that he has been forwarded to the Court and that he may submit petition before the Hon’ble Court for his bail. The petitioner duly acknowledged the receipt of the said Notice under Section 47 BNSS dated 22.02.2025. Page No.# 7/8

In the present case, the petitioner was fully aware of the provisions under which the said Mankachar P.S. Case No. 196/2024 was registered and that he along with his father, mother and younger brother are the accused persons of said Mankachar P.S. Case. Therefore, he himself along with his father, mother and younger brother earlier approached this Court by filing pre-arrest bail application under Section 482 BNSS being A.B No. 2873/2024 for their pre-arrest bail in said Mankachar P.S. Case.

The accused petitioner was also aware of the fact that after perusal of the case diary, statement of the minor victim girl recorded under Section 183 BNSS by the Magistrate, the Court by order dated 03.12.2024 rejected his pre-arrest bail in said Mankachar P.S. Case No. 196/2024, whereas by the said order dated 03.12.2024 the Court granted pre-arrest bail in said Mankachar P.S. Case No. 196/2024 to his father, mother and younger brother.

It is also seen from the records of the case that the petitioner did not appear before the concerned Investigating Officer of the case during investigation of said Mankachar P.S. Case No. 196/2024 and he evaded arrest and was found absconding from police. Later, only on 22.02.2025 the petitioner was arrested in said Mankachar P.S. Case No. 196/2024.

These facts clearly indicate that the petitioner was fully aware of the reasons and grounds of his arrest in said Mankachar P.S. Case No. 196/2024 corresponding to G.R. No. 432/2024, in which he was evading arrest.

Since the petitioner was aware of the Sections under which said Mankachar P.S. Case No. 196/2024 was registered against him for which he preferred anticipatory bail application and absconded evading arrest in said Mankachar P.S. Case which indicates that the petitioner is fully aware of the grounds and reasons as well as the relevant penal Sections under which he was arrested on 22.02.2025 in said Mankachar P.S. Case No. 196/2024 though grounds and reasons in details for his arrest in the said case have not been furnished to him at the time of his such arrest on 22.02.2025. Page No.# 8/8

For the reasons above, the Court is of the view that the concerned Investigating Officer while arresting the petitioner on 22.02.2025 in said Mankachar P.S. Case No. 196/2024 has violated the provisions of Article 22 of the Constitution considering the fact that the petitioner was evading from his arrest being fully aware about the said Mankachar P.S. Case No. 196/2024 registered against him.

For such reasons, noted above, the Court is also of the view that the law laid down by Hon’ble Apex Court in the cases of Prabir Purkayastha (Supra) and Vihaan Kumar (Supra), are not applicable to the case of the petitioner in the given facts and circumstances.

Accordingly, this bail application of the petitioner, Eakub Ali @ Eyakub Ali, son of Ismail Hussain @ Islam Sheikh, in the Special (POCSO) Case No. 25/2025, arising out of Mankachar Police Station Case No. 196/2024, pending before the Court of the learned Special Judge (POCSO) cum Sessions Judge, South Salmara, Mankachar, being devoid of merit, stands rejected.

The Court appreciates the service rendered by Dr. Pooja Agarwal, learned Amicus Curiae appearing on behalf of the informant of the case in assisting the Court in adjudication of this bail application.

Registry shall pay the remuneration to Dr. Pooja Agarwal, learned Amicus Curiae, on raising a bill by her, as per her entitlement. JUDGE Comparing Assistant