GAUHATI HIGH COURT ISSUES ORDER FOR AMIRUL ISLAM V/S THE STATE OF ASSAM AND ANR.

GUWAHATI, India, Sept. 16 -- Gauhati High Court issued the following order on Aug. 18:

1. This is an application filed by the petitioner praying for pre-arrest in connection with South Salmara P.S Case No. 26/2025 registered under Section 137(1)(b)/87/65(1)/3(5) of BNS read with Section 6 of the POCSO Act.

2. The FIR dated 20.02.2025 lodged by the mother of the victim reflects that on 15.02.2025, the victim aged about 16years went to the road near by her house and that she went missing. The informant thereafter states that on search being made, she was recovered on 18.02.2025 from an area in the State of Meghalaya and on interrogation, it was noticed that the co-accused and the petitioner forcefully took her from the road to a different place and finally kept her in a house at a particular village and at night, both of them, the co-accused and the petitioner raped her. The informant further stated that on the next day i.e., 16.02.2025, the co-accused dropped the victim at the place in Meghalaya from where the victim was recovered two (2) days thereafter.

3. At the outset, Mr. K.K. Das, learned Addl. Public Prosecutor appearing for the State submitted that the instant application is not maintainable in view of the bar in Sub-Section 4 of Section 482 of the BNSS, 2023, which provides as hereunder:- "Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023"

4. He as such submits that although the age of the petitioner is mentioned as 16 years in the FIR however, on perusal of the Case Diary, which includes the Birth Certificate of the victim, he found that the victim was born on 16.12.2009 and since the occurrence was on the night of 15.02.2024, the age of the victim would be less than 16 years more specifically 15 years 2 months. As such, Mr. Das submits that the instant case is not maintainable as per law.

5. Mr. S.H. Sikdar, learned counsel for the petitioner however submits that in the FIR, the age of the victim is reflected as 16 years and not less than 16 years. He further submits that the merit of the case also does not favor the victim.

6. Mr. S. Nawaz, learned counsel appearing for the respondent No. 2 also supports the argument made by the State Government that the instant case is not maintainable.

7. I have heard the counsels.

8. In view of the Birth Certificate which was seized by the police in connection with the instant case issued by the Registrar of Birth & Death, Gazarikandi Public Health Center issued on 19.11.2012 shows that the victim was born on 16.12.2009. Since the occurrence had happened on 15.02.2025, the age of the victim would be 15 years 2 months.

9. Under Sub-Section 4 of Section 482, there is a bar in entertaining application for pre-arrest bail in connection with offences under Section 65 of the BNS, 2023. Section 65 of the BNS, 2023 provides that whoever commits rape on a woman under 16 years of age shall be punished with the prescribed punishment.

10. Since in the instant case the victim is less than 16 years and the allegation in the FIR that the petitioner along with another had raped the victim on the night of 15.02.2025 when she was less than 16 years, the present application is not maintainable under the law.

11. As such, the petition is dismissed.

Disclaimer: Curated by HT Syndication.