Gauhati High Court
Page No.# 1/5 vs Page No.# 2/5 on 6 February, 2023
Page No.# 1/5
GAHC010254872022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/3679/2022
SHAHAR ALI @ SAHAR ALI AND 2 ORS.
S/O ABUL KASHEM,
VILL.- RAM HARIR CHAR PART- I,
P.O.- RAM HARIR CHAR,
P.S.- GOALPARA RIVER,
DIST.- GOALPARA, ASSAM, PIN- 783129.
2: BILLAL HOSSEN @ BILLAL HUSSAIN
S/O LATE HASHEM ALI
VILL.- RAM HARIR CHAR PART- I
P.O.- RAM HARIR CHAR
P.S.- GOALPARA RIVER
DIST.- GOALPARA
ASSAM
PIN- 783129.
3: HANIF ALI @ HANIP ALI
S/O LATE HASHEM ALI
VILL.- RAM HARIR CHAR PART- I
P.O.- RAM HARIR CHAR
P.S.- GOALPARA RIVER
DIST.- GOALPARA
ASSAM
PIN- 783129
VERSUS
Page No.# 2/5
THE STATE OF ASSAM
REP. BY THE P.P., ASSAM.
Advocate for the Petitioner : MR. M H TALUKDAR
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
06.02.2023
Heard Mr. M.H. Talukdar, learned counsel for the petitioners. Also heard
Mr. B. Sharma, learned Addl. P.P. appearing for the State.
The petitioners, namely, (1) Shahar Ali @ Sahar Ali, (2) Billal Hossen @
Billal Hussain, and (3) Hanif Ali @ Hanip Ali have filed an application under
Section 438 Cr.P.C. with a prayer for pre-arrest bail as they are apprehending
arrest in connection with PRC P.S. Case No. 229/2022 (arising out of Goalpara
River P.S. Case No. 26/2021 under Sections 341/325/326/307/34 IPC which is at
present pending in the Court of the Additional Chief Judicial Magistrate,
Goalpara.
The FIR unfolds that on the morning of 30.10.2021, while the informant's
son Manowar Hussain was ploughing his land with the help of a tractor and was
passing with his tractor over the uncultivated land of Jahurul Islam, the accused
persons named in the FIR assaulted Manowar Hussain causing grave injuries on
his body. They also attacked him with a spade with an intention to commit
murder. The informant then ran towards his son but the accused persons
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attacked the informant also. Some persons who were working in the fields came
to his rescue. The informant's son Manowar Hussain was seriously injured and
after treatment in Goalpara Civil Hospital, the local people took his son to
Guwahati for better treatment.
It is submitted on behalf of the petitioners that the accused persons who
are named in the FIR have already been enlarged on bail.
It is also submitted that the FIR was lodged by a co-villager who could
have easily named the present petitioners, but the present petitioners were not
named in the FIR as they are innocent.
The learned counsel for the petitioner has also relied on the decision of
the Hon'ble Supreme Court in Aman Preet Singh Vs. CBI Through
Director: AIR 2021 SC 4154 wherein it has been observed that:-
"The Court shall on appearance of an accused in non-bailable
offence who has neither been arrested by the police/Investigating
Agency during investigation nor produced in custody as envisaged
in Section 170, Cr.P.C. call upon the accused to move a bail application
if the accused does not move it on his own and release him on bail as
the circumstance of his having not been arrested during investigation
or not being produced in custody is itself sufficient to entitle him to be
released on bail. Reason is simple. If a person has been at large and
free for several years and has not been even arrested during
investigation, to send him to jail by refusing bail suddenly, merely
because charge-sheet has been filed is against the basic principles
governing grant or refusal of bail."
It has also been held in Aman Preet Singh's Case (supra) that:-
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"If we may say, the observation hereinabove would supplement
our observations made in Siddharth vs. State of Uttar Pradesh & Anr.
(supra) and must be read together with that judgment.
The given factual scenario completely fits the aforesaid as the
appellant was never taken into custody during investigation. Suffice
to say that it would be a fit case for the trial Court to grant bail to the
appellant on the next date on terms and conditions to its satisfaction.
As a measure of precaution, laregly arising from the manner of
submission of public prosecutor before the trial Court, it is made clear
that the interim protection granted by this Court would continue till
the appropriate order is passed by the trial Court."
The learned Addl.P.P. has raised objections stating that Aman Preet
Singh's Case is not similar to this case. In this case, the petitioners have been
evading arrest. Charge is yet to be framed and the petitioners have been
implicated by the witnesses whose statements have been recorded under
Section 161 Cr.P.C.
I have given my anxious consideration to the submissions at the Bar.
The petitioners have pledged to co-operate with the trial. They are willing
to face trial. The co-accused who are named in the FIR have already been
enlarged on bail.
In view of my foregoing discussisons, I deem it proper to grant the
privilege of Anticipatory Bail to the petitioners.
In the event of arrest of the petitioners, namely, (1) Shahar Ali @ Sahar
Ali, (2) Billal Hossen @ Billal Hussain, and (3) Hanif Ali @ Hanip Ali, shall be
released on bail on furnishing bail bond of Rs. 35,000/- with one suitable surety
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of like amount to the satisfaction of the arresting authority under the conditions
that:-
(1) the petitioners will co-operate with the trial and the petitioner will not
jump the bail;
(2) the petitioners will not exercise threats to witnesses;
(3) the petitioners will not leave the jurisdiction of the trial Court without
prior permission of the Jurisdictional Court, till completion of trial.
Application stands disposed of.
JUDGE
Comparing Assistant
