Gauhati High Court

Ashirbad Hazarika vs The State Of Assam on 14 November, 2022

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GAHC010232082022




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

                               Case No. : Bail Appln./3045/2022

             ASHIRBAD HAZARIKA
             S/O DR. INDRA KUMAR HAZARIKA,
             R/O SANTIDAN PATH, RUPALIM NAGAR, LANKESWAR,
             P.O.- GAUHATI UNIVERSITY,
             P.S.- JALUKBARI, GUWAHATI IN THE DISTRICT OF KAMRUP (M), ASSAM,
             PIN- 781006.



             VERSUS

             THE STATE OF ASSAM
             REP. BY P.P., ASSAM.



Advocate for the Petitioner   : MR. K N CHOUDHURY

Advocate for the Respondent : PP, ASSAM




                                          BEFORE
                  HONOURABLE MR. JUSTICE ROBIN PHUKAN
                                          ORDER

14.11.2022

Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. P. Mahanta, learned counsel for the petitioner and also heard Mr. M. Phukan, learned Page No.# 2/6

Public Prosecutor for the respondent State of Assam.

2. Be it noted there that this application under Section 439, Code of Criminal Procedure, 1973 [Cr.P.C.], is preferred by accused, namely, Sri Ashirbad Hazarika, who has been languishing in jail hazoot in connection with Dhula P.S. Case No. 114/2022, under Sections 302/376, Indian Penal Code [IPC] read with Section 10 of the POCSO Act, 2017 read with Section 14 of the Child and Adolescent Labour [Prohibition and Regulation] Act, 1986 and also Sections 120B/201/218 of the IPC, for granting bail.

3. Mr. K.N. Choudhury, learned Senior Counsel submits that the petitioner was working as Circle Officer [attached], Dalgaon Revenue Circle in the District of Darrang and that he has conducted inquest report upon the dead body of a girl child, aged 13 years, who allegedly committed suicide in the house of one Krishna Kamal Baruah on 11.06.2022. Mr. Choudhury further submits that later on, in connection with the said incident, Dhula Police Station Case No. 114/2022, under Section 376/302 read with Section 10 of the POCSO Act and read with Section 14 of the Child Labour [Prohibition and Regulation] Act, 1986 has been registered and after investigation charge sheet has been laid against accused Krishna Kamal Baruah to stand trial under the said sections of law, but the I.O. continued investigation under section 173(8) Cr.P.C. and later on, added sections 120(B)/201/218 IPC, and during the course of further investigation the I.O. has arrested accused Ashirbad Hazarika on 10.11.2022, and forwarded him to the court. Mr. Choudhury further submits that the accused is innocent and he was never imparted any training as to how to conduct inquest and though some commission or omission are there on the part of the petitioner in conducting the inquest of the girl child, yet he is noway involved with rest of the offences and the offences, if at all made out against the petitioner, the same are under Sections 120B/201/218, IPC and are bailable in nature, and by virtue of section 120(B) IPC the accused cannot be roped with the substantive Page No.# 3/6

offences and that the accused has been co-operating with the investigating agency and will co-operate further, and as he is a public servant there is no chance of absconding and that there is also no chance of hampering investigation or tampering the witnesses and therefore. Mr. Choudhury contended to allow this petition. Mr. Choudhury also referred one case law Tehseen Poonawalla vs. Union of India and another, reported in [2018] 6 SCC 72, to highlight the scope of an enquiry under Section 174, CrPC and the purpose of the same.

4. On the other hand Mr. M. Phukan, learned Public Prosecutor, Assam has produced the case diary before this Court and submits that the accused was arrested only on 10.11.2022, and that the materials collected so far in the case diary reveals his complicity with the offences and section 409 IPC is very recently added by the I.O. herein this case. Referring to statement of one of the co-accused dated 07.11.2022 and 01.11.2022, Mr. Phukan submits that the present accused also received some amount of money for giving false inquest report. Mr. Phukan further submits that the commission or omission on the part of the accused has serious implication in the outcome of the case, and therefore, it is contended to dismiss the petition. Mr. Phukan also referred one case law Mahipal vs. Rajesh Kumar @ Polia & Another reported in (2022) 2 SCC 118, in support of his submission.

5. In reply to the submission of the learned P.P. Mr. Choudhury submits that section 409 IPC is not at all attracted here in this case and there is also no addition of section 13(1)/13(2) of the Prevention of Corruption Act and reiterated that , if any offences are made out, it is under section 120(B)/201/218 IPC which are bailable, and therefore, it is contended to allow this petition.

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6. Having heard the submission of learned Advocates for both sides, I have carefully gone through the petition and the documents placed on record and also perused the case diary produced before this Court by the learned Public Prosecutor. Also I have carefully gone through the case law referred by Mr. Choudhury, the learned senior counsel for the accused and also by the learned P.P.

7. It appears that there is substance in the submissions so advanced by Mr. K.N. Choudhury, the learned senior counsel for the accused that by virtue of section 120(B) the present accused cannot be roped with the substantive offences i.e. under section 376/302 IPC which were allegedly committed by accused Krishna Kamal Baruah, who has already been charge sheeted after investigation. It also appears that though section 409 IPC is added by the I.O. at a later stage, yet, there is inadequacy of materials in the case diary to charge with the present accused with the same. And it also appears from the case diary as well as forwarding report of the I.O. as well as from the bail objection petition filed by the I.O. that if any offence at all is made out against the accused the same is under section 120(B)/201/218 IPC and the same are bailable in nature as submitted by Mr. Chaudhury the learned counsel for the accused. It also appears that though the learned P.P. has submitted that one of the co-accused has implicated the present accused in his statement recorded on 01.11.2022 and 07.11.2022, about receiving bribe money from the family members of the accused Krishna Kamal Baruah, yet said fact finds no mentioned in the forwarding report of the accused, dated 11.11.2022. There is also no addition of any of the section of the Prevention of Corruption Act.

8. It also appears that charge sheet has already been submitted against the principal accused after completion of investigation. Material witnesses have already been examined by the I.O. It also appears that the accused has been co-operating in the Page No.# 5/6

investigation and further it appears that he has root in the society and is also a public servant and as such there is no chance of jumping bail.

9. I have carefully gone through the decision of Hon'ble Supreme Court in the case of Mahipal (supra) so referred by the learned P.P., and find that the said decision is restricted to its own fact and would come into his aid.

10. The concept and philosophy of bail was discussed by Hon'ble Supreme Court in several other judgments. A distillation of plethora of the precedents would reveal that conceptually, bail continues to be understood as a right for assertion of freedom against the State imposing restraints. Dictionary meaning denotes it as a security for appearance of a prisoner for his release. It is a conditional liberty. It must be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.

11. In the case of Prahlad Singh Bhati v. NCT, Delhi, reported in (2001) 4 SCC 280, Hon'ble Supreme Court has culled out the principles, which the courts has to consider at the time of granting or refusing bail as under:-

"The jurisdiction to grant bail has to be exercised on the basis of well- settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words Page No.# 6/6

"reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

12. Keeping these principles in mind and also considering the facts and circumstances discussed herein above, and further, balancing the right to personal liberty of the accused with that of the societal interest, this court is of the view that further custodial detention of the accused is unwarranted here in this case. Accordingly, this court is inclined to allow this petition.

13. It is provided that on furnishing a bond of Rs. 1,00,000/(Rupees one lac) with one surety of like amount to the satisfaction of the learned Special Judge POCSO Court, Darrang Mangaldoi, the accused be enlarged on bail. This privilege is however subject to the following conditions: