Gauhati High Court
Samsul Ali vs The State Of Assam And Anr on 22 July, 2022
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GAHC010144502022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/2038/2022
SAMSUL ALI
SON OF LATE MASLIM ALI
R/O VILL- KHEPKUCHI
P.O. MAHAJANPARA
P.S. BAIHATA CHARIALI
DIST. KAMRUP, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE PP, ASSAM
2:MD. SHAMED ALI @ MOINA
S/O MASLIM ALI
R/O VILL- GANAKJHAR
P.O. MAHAJANPARA
P.S. BAIHATA CHARIALI
DIST. KAMRUP
ASSA
Advocate for the Petitioner : MR G R A MOTTAQUEE
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 22.07.2022
Heard Mr. G.R.A. Mottaquee, learned counsel for the petitioner. Also
heard Mr. Bhaskar Sarma, learned APP appearing for the State, who has
produced the case diary and opposed the prayer for bail.
2. By this application filed under section 438 Cr.P.C., the petitioner is
praying for pre-arrest bail in a case against the petitioner at Baihata Chariali
Police Station, for which information was received from the police personnel of
the said police station on 21.07.2022.
3. The learned counsel for the petitioner has referred to the statement
made in paragraph 3 of this application to project that on 20.07.2022 at about
4.00 PM, the petitioner and respondent no.2 were discussing some personal
matters and the petitioner went to answer the call of the nature and when he
returned, he did not find respondent no.2 and found the cash box open and
cash amount of Rs.10,000/- (Rupees ten thousand only) was missing. The
petitioner projects that he tried to contact respondent no.2 over phone, but the
phone was found switch off. Thereafter, at about 7.00 PM, the petitioner
approached the Baihata Chariali P.S., but the Officer-in-Charge of Baihata
Chariali P.S. refused to accept the written complaint and accordingly, the
petitioner had moved an application before the concerned Court under section
153(3) Cr.P.C. for a direction to the Officer-in-Charge of Baihata Chariali P.S. to
register a case. Thereafter, at around 7.00 PM of 21.07.2022, the petitioner
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received a phone call from a police personal of the Baihata Chariali P.S., who
had directed the petitioner to appear before the police station on 22.07.2022 in
connection with a case lodged by the respondent no.2 and again at 11.00 AM of
22.07.2022, he received a phone call from Baihata Chariali P.S. to appear before
the police station.
4. Accordingly, by referring to the case of Sushila Aggarwal & Ors. Vs.
State (NCT of Delhi) & Ors., (2020) 5 SCC 1, it is submitted that for filing of an
application under section 438 Cr.P.C., existence of a police case is not a pre-
condition. The learned counsel for the petitioner has also placed reliance on the
order dated 30.06.2022 passed by this Court in AB 1844/2022 and submits that
relying on the ration laid down in the case of Sushila Aggarwal (supra), this
Court had granted the privilege of pre-arrest bail to the petitioner therein.
5. The learned counsel for the petitioner has not produced the entire text
of the case of Sushila Aggarwal (supra). Therefore, the Court was prevented
from acquiring itself of the context in which the said decision was rendered.
6. Therefore, in absence of producing the full text of the cited judgment,
a mere observation of a coordinate Bench of this Court granting interim pre-
arrest bail, in the opinion of the Court, would not constitute a binding preceding
to apply the ratio of Sushila Aggarwal (supra) in grant of blanket pre arrest bail
to the petitioner.
7. Accordingly, the prayer for interim pre-arrest bail is rejected at this
'motion' stage.
8. Nonetheless, the learned APP is requested to make an enquiry and
inform the Court if any case is registered against the petitioner before the
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Baihata Chariali P.S. The learned APP is at liberty to send a downloaded copy of
this order to the concerned Officer-in-Charge to obtain the information.
9. List on 28.07.2022 in the 'orders' column.
JUDGE
Comparing Assistant
