Page No.# 1/7 vs The State Of Assam
2022 Latest Caselaw 3865 Gua

                                                                   Page No.# 1/7

GAHC010145072022




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

                            Case No. : AB/2103/2022

         SULTAN ALI AHMED AND 3 ORS.
         S/O- KAZIMUDDIN AHMED, R/O- VILL.- BAIKHUN GAON, P.O.
         DHALIGAON, P.S. DHALIGAON, DIST. CHIRANG, ASSAM, PIN- 783385.

         2: HANIFUDDIN AHMED
          S/O- SARIFUDDIN AHMED
          R/O- VILL.- BAIKHUN GAON
          P.O. DHALIGAON
          P.S. DHALIGAON
          DIST. CHIRANG
         ASSAM
          PIN- 783385.

         3: JOYNAL ABEDIN
          S/O- KAZIMUDDIN AHMED
          R/O- VILL.- BAIKHUN GAON
          P.O. DHALIGAON
          P.S. DHALIGAON
          DIST. CHIRANG
         ASSAM
          PIN- 783385.

         4: ABDUL JABBAR
          S/O- LATE FAZAL ALI
          R/O- VILL.- BAIKHUN GAON
          P.O. DHALIGAON
          P.S. DHALIGAON
          DIST. CHIRANG
         ASSAM
          PIN- 783385

         VERSUS

         THE STATE OF ASSAM
                                                                           Page No.# 2/7

            REPRESENTED BY THE P.P., ASSAM



Advocate for the Petitioner   : MR. M BISWAS

Advocate for the Respondent : PP, ASSAM




                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                          ORDER

Date : 28-09-2022

Heard Mr. M. Biswas, learned counsel for the petitioners. Also heard Mr. M.P. Goswami, the learned Addl. P.P. for the State.

2. At the outset, the learned counsel for the petitioners has submitted that he is not pressing this application for the petitioner no. 1, namely, Sultan Ali Ahmed, who has individually approached this Court by filing B.A. 2365/2022.

3. Thus, the petitioners, namely, (2) Hanif Uddin Ahmed, (3) Joynal Abedin, (4) Abdul Jabbar, who are apprehending arrest in connection with Dhaligaon P.S. Case No. 225/2021, under sections 120B/302/307/325/427 IPC are praying for pre-arrest bail under section 438 Cr.P.C.

4. The learned counsel for the petitioner has submitted that the petitioner has been implicated in a false and manufactured case. It was submitted that the petitioners had movable and immovable property and therefore, there is no chance that they would abscond. It was also submitted that charge-sheet has been submitted in this case on 18.04.2022 and the trial Page No.# 3/7

has not began yet. Moreover, it was submitted that there are 40 listed witnesses to be examined, which would surely take time and therefore, the learned counsel for the petitioner has prayed for releasing the petitioner on bail. It was also submitted that there was previous enmity between the petitioner no. 1, namely, Sultan Ali Ahmed and the informant and that his father-in-law was murdered by the family members of the informant. Therefore, a road accident was converted into a criminal case of murder.

5. In support of his submissions, the learned counsel for the petitioner has referred to the following cases, viz., (i) State of Rajasthan v. Balchand @ Baliay, (1977) 4 SCC 308; (ii) Babu Singh & Ors. v. State of U.P., (1978) 1 SCC 579; (iii) Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40.

6. Pursuant to the order dated 02.09.2022, passed by this Court, the scanned copy of the case diary has been received from the Court of the learned Addl. Chief Judicial Magistrate, Kajalgaon, Chirang. The learned Addl. P.P. has perused the same and has objected to the prayer for bail.

7. On a perusal of the case diary, including charge-sheet, and statement of witnesses it appears that on 23.08.2021, the informant along with three others went to IOCL No. 2 Gate in their vehicle to look out for their oil tankers. At that time, one jeep belonging to the petitioner no.1, namely, Sultan Ali Ahmed had hit the vehicle of the informant and at that moment, another vehicle also belonging to Sultan Ali Ahmed came and from the said two vehicles, seven persons, including the petitioners herein had attacked the informant and other three persons with iron rods and patti. Resultantly one Abdul Malek Page No.# 4/7

received grievous injuries and died on the spot and two other persons accompanying the informant had also received grievious injuries. As per the post mortem report, the opinion of the Doctor was that " death was due to intracranial hemorrhage as a result of injuries sustained as described. All the injuries are ante mortem in nature and caused by blunt force impact . The description of injuries are as follows:-

a. Laceration of size (15 x 1 x 1.5) cm present over the left fronto- parietal region of skull (scalp).

b. Laceration of size (4 x 2 x 1.5) cm present over the back of left side of skull (scalp).

c. Laceration of size (11 x 2.5 x 2) cm present over the back of lower level of trunk.

d. Abrasion of size (40 x 6) cm present over the lateral side of right upper limb.

e. Bruise: (1) Bruise of size (4.0 x 2.5) cm present over the left forehead, (2) Bruise of size (2.5 x 2.5) cm present over the lateral side of lateral canthus of left eye, (3) Bruise of size (4 x 2) cm present over the lateral side of right eye.

f. Brain: Sub-Dural hemorrhage of size (2 x 2.5) cm present over the left side. Sub-arachnoid hemorrhage present in the sub-archnoid space. Intraparenchymal hemorrhage of size (2 x 2) cm present over the left hemisphere of brain.

8. Under the circumstances, from the violent nature of attack made by a group of 7 (seven) persons, and by the nature of evidence collected Page No.# 5/7

during investigation, there is a strong apprehension that if released on bail, the petitioner is likely to abscond to evade trial.

9. It is noted that the petitioner nos. 2, 3 and 4 along with petitioner No. 1 had jointly filed a criminal petition under section 482 Cr.P.C., and this Court by order dated 08.07.2022, passed in Crl. Rev.P. No. 354/2022, had suspended the NBWA issued against the petitioners till 14.07.2022, by further providing that if the petitioners do not appear before the learned Court below on 14.07.2022, the learned Court below shall pass appropriate order as regards issuance of fresh NBWA against the petitioners. In this case there is no explanation as to why the petitioners did not appear before the learned Court below despite order dated 08.07.2022 in Crl.Rev.P. 354/2022, which sufficient to presume that the petitioners would be a flight risk if granted pre-arrest bail. Moreover, it appears that if granted bail, the informant's side would be under constant risk as to their life.

10. In the case of Balchand (supra), the Supreme Court was considering the grant of bail pending consideration of appeal. Thus, trial had already concluded. In the case of Babu Singh (supra), the petitioners who were accused of murder were acquitted by the trial Court, which was reversed by the High Court and the petitioners approached the Supreme Court and exercised their statutory right of appeal and at that stage, the Supreme Court was considering the second application for bail. Thus, the trial had concluded. In the case of Sanjay Chandra (supra), the consideration was that in the economic offence involved in the said case, the maximum punishment which could be awarded was for 7 (seven) years, and being economic offence, everything was documented, which cannot be tampered. Whereas, in the present case in hand, Page No.# 6/7

the nature of evidence of crime is oral evidence of the witnesses, and there may be a possibility that the witnesses may become hostile if the accused are released on bail because most of the witnesses are from the around same locality/area to which the petitioner belong. In none of the cases cited by the learned counsel for the petitioner, bail was granted despite non-compliance of order by the High Court to appear before the Court below where to facilitate such appearance, the operation of NBWA was suspended.

11. The learned Addl. P.P. has placed reliance on the case of Prem Shankar Prasad v. The State of Bihar & Ors., Crl. Appeal No. 1209/2021, decided on 21.10.2021 by the Supreme Court of India, wherein it has been held that an absconder was not entitled to pre-arrest bail after discussing few other judgments on the point. In the present case in hand, it is seen that in the charge-sheet, the petitioner nos. 2 and 4 are shown as absconder accused. Moreover, repeated NBWAs issued by the learned Addl. Chief Judicial Magistrate, Chirang, Kajalgaon against the petitioner nos. 2, 3 and 4, including petitioner no. 1 have been returned unexecuted with report that they are absconding. Therefore, by order dated 21.07.2022, the said learned Court, after considering the reports, issued P&A against the petitioners along with standing/ open non- bailable warrant of arrest. Therefore, in light of the decision rendered by the Supreme Court of India in the case of Prem Shankar Prasad (supra), the Court finds the petitioner nos. 2, 3 and 4 to be disentitled to pre-arrest bail. It is reiterated that the prayer for bail for Sultan Ali Ahmed, petitioner no. 1, is not being pressed in this petition as he has already filed another bail application, referred to herein before.

12. In a case of this nature, the Court is of the considered opinion Page No.# 7/7

that it would not be appropriate to release the petitioner nos. 2, 3 and 4 on pre- arrest bail.

13. Thus, as the petitioners are FIR named accused persons and the charge-sheet and the case diary reveals that there are sufficient materials to suggest that the petitioners are involved in the alleged offence, the prayer for bail of the petitioner nos. 2, 3 and 4, namely, (2) Hanif Uddin Ahmed, (3) Joynal Abedin, (4) Abdul Jabbar, is rejected.

14. This application is disposed of.

JUDGE

Comparing Assistant