Azizur Rahman vs The State Of Assam
2021 Latest Caselaw 778 Gua

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GAHC010116332020




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)



                                   Case No. : AB/2218/2020

            AZIZUR RAHMAN
            S/O LATE AHMED DALAL, R/O VILLAGE KANAKATAPARA, PS DALGAON,
            DIST. DARRANG, ASSAM

            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY PP, ASSAM



Advocate for the Petitioner   : MR. A LAL

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                     HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                            ORDER

03-03-2021 Heard Mr. A. lal, learned counsel for the petitioner. Also heard Mr. B.J. Dutta, learned Addl. Public Prosecutor for the State respondent.

By this petition filed under Section 438 of the Cr.P.C., the petitioner, namely, Md. Azizur Rahman has prayed for granting pre-arrest bail, in connection with Dalgaon P.S. Case No. 668/2019 under Section 304B of Page No.# 2/4

the IPC.

The scanned copy of the record of G.R. Case No. 3578/2019 (corresponding to Dalgaon P.S. Case No. 668/2019) along with the Case Diary is placed before the Court.

Mr. A. Lal, learned counsel for the petitioner, submits that in the charge- sheet the petitioner has been shown as absconder, without following the procedure in Section 82 Cr.P.C. Mr. Lal, further submits that the offence being a sessions triable one, the committal Magistrate has no jurisdiction under Section 437 Cr.P.C. to grant bail to the petitioner and as such, the petitioner is apprehending that if he surrenders before the said Court he would be sent to jail custody.

Mr. B.J. Dutta, learned Addl. Public Prosecutor, submits that the case is at the accused appearance stage for which fresh summons have been issued to the charge-sheeted accused persons including the petitioner, who is shown absconder fixing 31.03.2021. Mr. Dutta, also submits that the petitioner has failed to show any extra-ordinary ground warranting issue of pre-arrest bail in his favour, against whom the committal Court has issued summons for appearance.

" 438. Direction for grant of bail to person apprehending arrest:

Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely--

i) the nature and gravity of the accusation;

ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii) the possibility of the applicant to flee from justice; and.

iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of Page No.# 3/4

anticipatory bail;

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail."

In paragraph 92.1, in the judgment of Sushila Aggarwal & Ors. vs-

State (NCT of Delhi) & anr. reported in (2020) 5 SCC 1, the Hon'ble Supreme Court observed:

"92.1. Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest."

A perusal of the case record, it appears that a charge-sheet under Section 304B/34 of the IPC has been laid against the petitioner and another. The petitioner is shown absconder therein. It is further noticed that the learned committal Magistrate has issued summons for their appearance on 31.03.2021 without initiating any coercive steps at the first instance against them.

It may be pointed out that the use of the expression 'reason to believe' in section 438(1) Cr.P.C. shows that the belief that the petitioner may be arrested or remanded in judicial custody must be founded on reasonable grounds. The mere apprehension or fear of the petitioner cannot be said to be a reasonable ground to believe that he is certain to be arrested or remanded in judicial custody in connection with the said sessions triable case. Therefore, it is obligatory in law for the petitioner to respond to the summons issued by the learned committal Court and accordingly, to appear and participate in the committal proceeding.

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In the result, this application being devoid of any merit, the same is rejected.

JUDGE

Comparing Assistant