Gauhati High Court
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GAHC010151352025
2025:GAU-AS:10158
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1612/2025
RABIUL HASSAN
S/O HAKKUR @ HASMAT ALI
R/O VILL- MANDIA PATHAR, P.S. BAGHBOR, IN THE DISTRICT OF
BARPETA, ASSAM, PIN-781308.
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR P KATAKI, MRS R BEGUM
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 05-08-2025
Heard Mr. P. Kataki, the learned counsel for the petitioner. Also heard Mr.
P. Borthakur, the learned Additional Public Prosecutor appearing on behalf of
State respondent.
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2. This is an application filed under Section 482 of the Bharatiya Nagarik
Suraksha Sanhita (BNSS), 2023 for granting pre-arrest bail to the petitioner in
connection with Baghbor P.S. Case No. 121/2021 under Sections
376(D)/379/506 of IPC.
3. It is submitted by Mr. Kataki that the present accused/petitioner is innocent
and has not committed any such offence as alleged in the FIR. The FIR is
lodged against the present petitioner along with two other accused/persons
alleging gang rape on the victim as well as there was other allegation of theft.
But, the present accused/petitioner is not aware of the pendency of this case
and he was never searched by police during investigation.
4. Further he submitted that from the Medical Report of the victim it reveals
that no injury was detected by the Medical Officer at the time of her
examination and she was examined immediately on the next date of the
recording of the G.D. Entry No. 659/2021. However, the FIR was lodged
subsequently by the victim, which was registered accordingly.
5. He further submitted that the accused/petitioner was shown as an
absconder in the chare-sheet though he was never searched during
investigation. The NBWA was issued against the present petitioner and
subsequently considering the report of the Executing Officer, he was declared as
an absconder and the case was committed for remaining two other accused-
persons. The learned Sessions Judge accordingly framed charge against the two
other accused/persons u/s 376D/384/34 IPC and presently the case is fixed for
appearance. However, the present accused/petitioner is ready and willing to
appear before the learned Sessions Judge and to contest the case by appearing
regularly before the Court, if he is provided with some interim protection so that
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he can appear and contest the case.
6. Mr. Borthakur, the learned Additional Public Prosecutor raised grievous
objection and submitted that the petitioner was shown as an absconder and
from the record it reveals that he never cooperated in the investigation and
there are sufficient incriminating materials brought against him by the victim
while recording her statement u/s 164 Cr.PC.
7. Mr. Borthakur further submitted that there are various observations by the
Hon’ble Supreme Court wherein it has been observed that the anticipatory bail
cannot be granted to a petitioner who is declared a an absconder or as a
proclaimed offender.
8. In that context he also relied on the decision of the Hon’ble Supreme Court
passed in Prem Shankar Prasad v. The State of Bihar & Anr., reported in
2021 0 AIR(SC) 5125 and basically relied on para 16 of the said judgment:-
” 16. Recently, in Lavesh v. State (NCT of Delhi) [(2012) 8 SCC 730] , this Court (of which
both of us were parties) considered the scope of granting relief under Section 438 visàvis a
person who was declared as an absconder or proclaimed offender in terms of Section 82 of the
Code. In para 12, this Court held as under : (SCC p. 733) “12. From these materials and
information, it is clear that the present appellant was not available for interrogation and
investigation and was declared as ‘absconder’. Normally, when the accused is ‘absconding’ and
declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We
reiterate that when a person against whom a warrant had been issued and is absconding or
concealing himself in order to avoid execution of warrant and declared as a proclaimed
offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.”
9. Also relied on the decision of the Hon’ble Supreme Court passed in case of
Srikant Upadhyay & Ors. V. State of Bihar & Another , passed in Criminal
Appeal No. 1552/2024 wherein the same view has been expressed by the
Hon’ble Supreme Court.
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10. Hearing the submissions made by learned counsel for both sides, I have
also perused the case record and the scanned copy of the TCR. From the TCR it
reveals that sufficient incriminating materials are found against the present
petitioner on the basis of which charge-sheet is filed against him showing him
as an absconder. From the perusal of the record it reveals that the petitioner
never cooperated during investigation of the case and for which he is shown as
an absconder in charge-sheet. Further, it is seen that the learned court also took
several step and endavour to procure the attendance of the present
accused/petitioner. But, he avoided police arrest and finding no other alternative
the NBWA along with P&A was issued against him and considering the report of
the Executive Officer, the present accused/petitioner was declared as an
absconder/proclaimed offender.
11. In view of this and considering the gravity and nature of arrest vis-à-vis the
conduct of the accused/petitioner, I find it is not a fit case to extent the privilege
of pre-arrest bail to the accused-petitioner, hence stands rejected at this stage.
12. However, the accused-petitioner is directed to appear before the learned
Additional Sessions Judge, Barpeta with an appropriate application for regular
bail, which may be considered in accordance with law.
13. With the above observations, the AB stands disposed of.
JUDGE
Comparing Assistant