Gauhati High Court
Sayed Mallik vs The State Of Assam on 23 August, 2021
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
Page No.# 1/3
GAHC010105002021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1999/2021
SAYED MALLIK
S/O LATE RASHID MALLIK
R/O BARBALA
P.S. HOWLY
DIST. BARPETA, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR S M ABDULLAH P
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
23-08-2021 This is an application under Section 438 Cr.P.C., praying for pre-arrest bail by the petitioner, namely, Sayed Mallik, in connection with Howly Police Station Case No. 88 of 2021, registered under Sections 354(A)/376/500 of the IPC, read with Section 67 of the Information Technology Act.
Heard Mr. S.M. Abdullah P, learned counsel appearing for the petitioner and Mr. Bankim Sarma, learned Additional Public Prosecutor. The case diary produced has been perused.
The fact of the case is that on 23-02-2021 the victim/informant lodged an FIR with the Howly Police Station alleging therein that her husband has been staying in Saudi Arabia and taking advantage of the absence of her husband, the Page No.# 2/3 petitioner under threat to her and her children of dire consequences, had sexually harassed her against her will. The petitioner is also alleged to have uploaded her nude photograph in WhatsApp and Facebook through mobile No. 8472884864. An audio recording was also sent through the same number on 21-022021 to her son-in-law's mobile No. 8812842705. The learned counsel for the petitioner has submitted that the petitioner, although was the wife of Shajahan Mallik, yet she has divorced him by way of notarial affidavit and entered into an agreement of marriage with the present petitioner. To substantiate his such submission, he has filed an additional affidavit and has produced the first page of the notarial declaration, however, this notarial declaration at page 7 (Annexure 4) of the affidavit is incomplete in the sense that the vital part thereof is not available. Vide Annexure 3 at page 6, also the petitioner has produced the first page of another notarial affidavit of marriage contract agreement between the present petitioner and the victim. In this annexure also, the second and subsequent pages are not available. However, in the affidavit itself, it has been stated that the first pages of both the annexures 3 and 4 are only available and the original of such agreement/affidavit are with the victim and as such not available with the petitioner. He has also produced a certificate issued by the Notary Public, vide Annexure 1, with the additional affidavit to the effect that the victim appeared before him and was identified by an advocate, namely, Rakibool Islam Akand while marriage agreement, dated 19-05-2021 was effected. Vide Annexure 2, i.e., another certificate issued by the Notary Public that the victim had made a declaration in the form of affidavit, on 19-02-2021, vide instrument No. B-780, dated 19-02-2021 has been placed before this Court. During the course of hearing, the learned counsel for the petitioner has submitted that the Annexure Page No.# 3/3 2 is with respect to declaration of divorce by the victim to her husband, Shajahan Mallik.
The learned counsel for the petitioner has submitted that the victim had divorced her earlier husband and stayed with the present petitioner after the agreement for marriage was effected. However, in her statement, under Section 164 of the Cr.P.C., the victim has categorically stated that under threat that her son would be killed, the petitioner had raped her. There are some other facts stated in her statement which show that she was lured by the petitioner since long to have sexual intercourse with him. The evidence of the other witnesses show that the petitioner used to visit the house of the victim while other members of the family were absent. The facts that the petitioner had entered into an agreement of marriage with the victim and divorced her earlier husband, do not necessarily mean that she will submit herself to the present petitioner. The fact remains that the petitioner had allegedly sexual intercourse with the victim is not a fact disputed. During the course of investigation, it is found that there is a video where one person is seen committing sexual intercourse with the victim and the audio recorded during that time is found to be in the voice of the present petitioner as per the investigation so far carried out. Considering the materials in the case diary and the facts in its entirety, this Court is of the view that the petitioner does not deserve to be granted the privilege of pre-arrest bail and his custodial interrogation appears to be necessary. Therefore, his prayer for pre-arrest bail is rejected. The petition stands disposed of accordingly.
Return the case diary.
JUDGE Comparing Assistant