Gauhati High Court
Md Asadul Hoque vs The State Of Assam on 15 February, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010024972022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/420/2022
MD ASADUL HOQUE
S/O MD. AKBOR ALI
VILL- KURANIBORI
P.S. MAYONG
DIST. MORIGAON, ASSAM
VERSUS
THE STATE OF ASSAM
TO BE REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. I A HAZARIKA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 15-02-2022 Heard Mr. I.A. Hazarika, learned counsel for the petitioner and Mr. R.R. Kaushik, learned Additional Public Prosecutor for the respondent State of Assam.
2. By this application under Section 438, Code of Criminal Procedure, 1973 Page No.# 2/5 (CrPC), the petitioner viz. Md. Asadul Hoque has approached this Court seeking the benefit of pre-arrest bail, apprehending his arrest, in connection with Mayong Police Station Case No. 166/2021 registered for offences punishable under Sections 420/376/325/34, Indian Penal Code after rejection of his prayer for pre-arrest bail made in earlier bail application, A.B. no. 3150/2021 which was preferred along with other two accused persons, named in the First Information Report [FIR], by an order dated 28.10.2021 after perusal of the materials available in the case diary produced before the Court.
3. In the FIR lodged on 26.08.2021, the informant named three persons as accused viz. 1] Md. Asadul Hoque i.e. the present petitioner, 2] Msstt. Khudeja Khatun i.e. the mother of the present petitioner and 3] Md. Akbar Ali i.e. the father of the present petitioner. By the order dated 28.10.2021 passed in A.B. no. 3150/2021, the other two accused persons viz. Msstt. Khudeja Khatun and Md. Akbar Ali were granted the benefit of pre-arrest bail under Section 438, CrPC.
4. In this second bail application, the petitioner has pleaded three grounds, firstly, the ingredients of the alleged offence are not attracted against him; secondly, the petitioner is still ready to marry the informant without any condition and that the informant was having a love affair with the petitioner is evident from the contents of the FIR itself; and thirdly, the informant is above 18 years of age as per his reliable information and the informant has intentionally concealed her age. Thus, the benefit of +2 years margin of error, as observed in the decision of the Hon'ble Supreme Court of India in Jay Mala vs. Government of Jammu & Kashmir, reported in [1982] 2 SCC 538, can be made applicable in the case.
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5. In his submissions, Mr. Hazarika, learned counsel for the petitioner has urged the above pleaded grounds for extending the benefit of pre-arrest bail to the petitioner.
6. It is settled that after rejection of an application for pre-arrest bail under Section 438, CrPC earlier, there is scope to file a subsequent bail application for pre-arrest bail if there is change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.
7. When the previous bail application, A.B. no. 3150/2021 was taken up, the concerned case diary was produced for perusal. While passing the order dated 28.10.2021 this Court observed as under :
"From the materials in the case diary, it is found that the date of birth of the informant is 10.05.2003. The informant has alleged that the petitioner no. 1 had developed the relationship since last about 1 [one] year, meaning thereby, he established the physical relationship with her when she was minor, giving her a false promise of marriage. From the statement of the informant recorded under Section 164, CrPC, available in the case diary, it is noticed that the petitioner no. 1 had established the physical relationship with the informant and used to make her consume tablets without any intention to marry her."
8. In so far as the first ground is concerned, this Court had already dealt on the said aspect in the previous order dated 28.10.2021 and, thus, needs no reconsideration.
9. With regard to the second ground urged on behalf of the petitioner that the petitioner is still ready to marry the informant without any condition as the Page No.# 4/5 petitioner and the victim had a love affair, this Court has taken note of the fact that in the previous order dated 28.10.2021 it was observed that from the materials in the case diary that the petitioner established physical relationship with the informant when she was minor by giving her false promise to marry. The Hon'ble Supreme Court of India in the case of State of Madhya Pradesh vs. Madanlal, reported in [2015] 7 SCC 681, has observed that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. The decision has further observed as under :
"These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the "purest treasure", is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error."
In view of the above observations, this Court finds the ground that the petitioner's readiness to marry the informant cannot be a ground to reconsider the earlier order of rejection.
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10. In so far as the third ground regarding age is concerned, it had already been observed in the previous order dated 28.10.2021 that the date of birth of the informant is 10.05.2003. It was also observed that the physical relationship was established by the petitioner with the informant when she was minor, giving her false promise to marriage. In view of availability of such prima facie material as regards the age of the informant in the already collected materials, the decision in Jay Mala [supra] is found not relevant to be gone into for consideration of a prayer for pre-arrest bail of the petitioner at this stage. Thus, the third ground is also not found tenable in this second application for pre- arrest bail preferred for the second time.
11. In view of the above discussion, this Court is not persuaded to entertain this second bail application for pre-arrest bail of the petitioner under Section 438, CrPC. Accordingly, the same is rejected.
JUDGE Comparing Assistant