Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 7 March, 2025
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/5
GAHC010194002024
2025:GAU-AS:2419
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2895/2024
UTPOLA BOSE
D/O SRI TAPASH BOSE
R/O H/NO. 52, 2ND GREEN WOODLAND, LALGANESH, ODALBAKRA, P.S.
DISPUR, DIST. KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM
REP BY PP, ASSAM
Advocate for the Petitioner : MR F Z MAZUMDER,
Advocate for the Respondent : PP, ASSAM,
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
07/03/2025
Heard Mr. F Z Mazumder, learned counsel for the petitioner and Mr. Bankim Sarma, learned
Additional Public Prosecutor, Assam for the State respondent.
2. The petitioner, namely, Utpola Bose, daughter of Sri Tapash Bose, resident of House No. 52,
2nd Green Woodland, Lal Ganesh, Odalbakra, Police Station-Dispur, Guwahati, District-Kamrup (Metro),
has filed this application under Section 483 BNSS, 2023, seeking bail in Sessions Special Case No.
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112/2023 arising out of Paltanbazar Police Station Case No. 193/2023 facing charge under Section
370(5) of the IPC and under Sections 80 & 81 of the Juvenile Justice (Care and Protection of Children)
Act, 2015, pending before the Court of learned Special Judge (POCSO)-cum-Additional Sessions
Judge, Kamrup (Metro), Guwahati, in which she was arrested on 13.05.2023 and is in custody since
then.
3. As per the FIR dated 05.05.2023 lodged before Paltanbazar Police Station, the case is that
the accused couple, namely, Dr. Sangeeta Dutta and Dr. Walliul Islam, in assistance of their maid, had
physically assaulted their three years old minor girl child, tied her up under direct sunlight in the
terrace of the 5th floor of their residence, did not provide her any food or water and kept her in an
inhuman condition. The said FIR was accordingly registered as Paltanbazar Police Station Case No.
193/2023 under Sections 307/325/341/34 IPC read with Section 75 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 with added Sections 366(A)/367/368/376(AB) IPC with added
Section 80 of the JJ Act and added Sections 6/17/21 of the POCSO Act.
4. It is submitted by Mr. Mazumder, learned counsel for the petitioner that up to 03.10.2024 only
three out of 64 named prosecution witnesses have been examined so far. It is submitted that it is not
known as to when the prosecution will be able to adduce the evidence of remaining 61 witnesses. As
such, considering her detention in custody since 13.05.2023 for about 1 year 10 months, Mr.
Mazumdar, learned counsel for the petitioner has prayed to grant bail to the petitioner, Utpola Bose in
said Sessions Special Case No. 112/2023, pending before the Court of learned Special Judge (POCSO)
-cum- Additional Sessions Judge, Kamrup (Metro), Guwahati submitting that the petitioner shall
appear before the said Trial Court on the date fixed and shall comply with any terms and conditions
that may be imposed by the Court while considering her bail in the case.
5. Mr. Mazumder, learned counsel contended that the Hon’ble Apex Court have held that the
Court must ensure that an accused is not kept in custody for an unreasonable period as prolonged
incarceration of an accused awaiting trial unjustly deprives him/her right to life and personal liberty
under Article 21 of the Constitution of India particularly in a case where such incarceration extends
over an unreasonably long period without conclusion of trial.
6. In support of his contention, Mr. Mazumder, learned counsel for the petitioner placed reliance
on the judgment of the Hon’ble Supreme Court in the cases of Sheikh Javed Iqbal @ Ashfaq Ansari @
Javed Ansari Vs. State of Uttar Pradesh , decided on 18.07.2024, reported in 2024 INSC 534; Partha
Chatterjee Vs. Directorate of Enforcement , decided on 13.12.2024, reported in 2024 INSC 975 and the
decision of the Delhi High Court in the case of Rihan Vs. the State (GNCTD), decided on 20.11.2023.
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7. Mr. B Sarma, learned Additional Public Prosecutor, Assam from the records placed that many
witnesses, who are also prosecution witnesses named in the chargesheet of the case, in their
statements under Section 164 CrPC before the learned Magistrate at Kamrup (Metro), Guwahati
implicated the petitioner of her involvement in surrogacy as well as trading of child and those
prosecution witnesses are yet to adduce evidence before the Trial Court.
8. Mr. B Sarma, learned Addl. P.P. has placed before the Court those Section 164 CrPC
statements of the concerned witnesses who implicated the petitioner in the alleged crime.
9. As such, Mr. Sarma, learned Addl. P.P., submitted that till the examination of those relevant
witnesses, who implicated the petitioner, Utpola Bose; she should not be released on bail.
10. The Court by order dated 23.09.2024 called for the scanned copies of the records of said
Sessions Special Case No. 112/2023 along with the copy of the case diary of Paltanbazar Police
Station Case No. 193/2023.
11. From the records of the case, it is seen that after completion of the investigation of the case,
charge-sheet in said Paltanbazar P. S. Case No. 193/2023 was submitted on 03.07.2023 before the
Court of learned Sessions Judge, Kamrup (Metro), Guwahati against five of the accused persons of the
case, including the present petitioner, Utpola Bose under Section 370 IPC read with Section 80/81 of
the Juvenile Justice (Care and Protection of Children) Act, 2015.
12. By order dated 04.07.2023, the learned Sessions Judge, Kamrup (Metro), Guwahati
transferred the said Paltanbazar P.S. Case No. 193/2023 to the Court of learned Special Judge
(POCSO) -cum- Additional Sessions Judge, Kamrup (Metro), Guwahati for its disposal as the said
chargesheet of the case also contains charges under the POCSO Act against some of the co-accused
of the case. On filing of such chargesheet in said Paltanbazar P.S. Case No. 193/2023, it was re-
numbered as Sessions Special Case No. 112/2023 before the Sessions/POCSO Court, i.e. the Trial
Court.
13. On 24.06.2024, the Court of learned Special Judge (POCSO), Kamrup (Metro), Guwahati in
said Sessions Special Case No. 112/2023 framed charge under Section 370 IPC read with Section
80/81 of the Juvenile Justice (Care and Protection of Children) Act against the petitioner.
14. From the records of the case as well as the chargesheet filed in it, the accusation against the
petitioner, Utpola Bose by the prosecution is that — she was having a hostel at Lal Ganesh and from it
she was running a surrogacy center where she gave shelter to the women who had consented for
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surrogacy. From the statement of the witnesses recorded under Section 164 CrPC as well as 161 CrPC,
it is revealed that the present petitioner purchased the minor victim boy of the case from a lady of
Maligaon, Guwahati through one Asha worker by making payment of Rs.12,000/- each to them. The
petitioner also purchased the minor victim girl from another lady through two different Asha workers
by paying huge amount of money. After purchasing both the baby boy as well as the baby girl, i.e.,
the victims in this case, the petitioner kept them in her house. The accused Doctor couple later came
to the house of the petitioner and purchased both the baby boy and the baby girl, the victims, during
their infant stage by paying Rs.50,000/- for each of them, totaling an amount of Rs.1,00,000/- to the
petitioner. The case record also reflects that the petitioner illegally operated the said surrogacy center
and used to pay about Rs.2,00,000/- to each of the surrogated mother after giving birth to the babies
and thereafter, she used to sale those babies to others.
15. It is already noted above that charge-sheet in the case has been filed in time without delay,
charges have also been framed against the five accused persons of the case including the petitioner
and the concerned POCSO Court have also started recording of evidence of prosecution witnesses
who were thoroughly cross-examined by the defence.
16. In the case of X Vs. Rajasthan, reported in 2024 INSC 909 = 2024 STPL 12498 SC, the
Hon’ble Supreme Court have held that — Ordinarily in serious offences, once the trial commences and
the prosecution starts examining its witnesses, the Court be it the Trial Court or the High Court should
be loath in entertaining the bail application of the accused.
17. In the said case of X Vs. Rajasthan, the Hon’ble Apex Court have also held as follows:
“15. Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the
charge is framed and just before the victim is to be examined by the prosecution before the
trial Court, or (ii) bail is granted once the recording of the oral evidence of the victim is
complete by looking into some discrepancies here or there in the deposition and thereby
testing the credibility of the victim.
16. We are of the view that the aforesaid is not a correct practice that the Courts below should
adopt. Once the trial commences, it should be allowed to reach to its final conclusion which
may either result in the conviction of the accused or acquittal of the accused. The moment the
High Court exercises its discretion in favour of the accused and orders release of the accused
on bail by looking into the deposition of the victim, it will have its own impact on the pending
trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the
Page No.# 5/5trial gets unduly delayed and that too for no fault on the part of the accused, the Court may
be justified in ordering his release on bail on the ground that right of the accused to have a
speedy trial has been infringed.
18. It is noted above that FIR of the case was filed on 05.05.2023, Chargesheet in the case
was submitted on 03.07.2023, the concerned Court, after transfer of the case, framed charge on
24.06.2024 and as on 03.10.2024 evidence of three of the prosecution witnesses have already
been recorded and the said case is now pending in the stage of recording of evidence before the
Court of the learned Special Judge (POCSO) -cum- Additional Sessions Judge, Kamrup (Metro),
Guwahati. As such, it cannot be said that the trial of the case has been unduly delayed for which
the right of the accused petitioner to have a speedy trial has been infringed and for that she is
entitled for bail.
19. After hearing the parties and considering the entire aspect of the matter, this Court is of the
opinion that her detention since 13-05-2023 cannot be considered for bail of the petitioner in said
Sessions Special Case No. 112/2023 arising out of Paltanbazar Police Station Case No. 193/2023, at
this stage.
20. Accordingly, this bail application of the petitioner, Utpola Bose, daughter of Tapash Bose in
Sessions Special Case No. 112/2023 arising out of Paltanbazar Police Station Case No. 193/2023,
pending before the Court of learned Special Judge (POCSO) -cum- Additional Sessions Judge, Kamrup
(Metro), Guwahati, stands rejected.
JUDGE
Comparing Assistant
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