Gauhati High Court
Md Babdhan Ali @ Bapdhan Ali vs The State Of Assam on 3 October, 2023
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GAHC010219172022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/3170/2022
MD BABDHAN ALI @ BAPDHAN ALI
S/O LATE HASMAT ALI
R/O VILL- SINGIMARI
P.S. SIPAJHA
DIST. DARRANG, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
03.10.2023
1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel for the petitioner as
well as Mr. K.K. Das, learned Addl. P.P. appearing for the State respondent.
2. The petitioner, namely, Md. Babdhan Ali @ Bapdhan Ali, has filed this
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application under Section 438 Cr.P.C with prayer for pre-arrest bail, as he is
apprehending arrest in connection with Sipajhar P.S. Case No. 430/2022, under
Section 498(A)/325/307 IPC (Corresponding to G.R. Case No. 1776/2022).
3. It is submitted that the petitioner was all along with his wife who
sustained injuries as she accidentally had a fall. The victim was the petitioner's
wife, who unfortunately died during treatment.
4. The FIR unfolds that the victim Saheda Begum was subjected to cruelty by
the petitioner. On 11.09.2022, the petitioner threatened to kill the victim and
then he hit her head against the wall and the victim sustained head injuries. The
petitioner did not even provide treatment to the victim but the informant, who is
the elder brother of the victim, took her to the GMCH hospital on 22.09.2022. At
that time, the victim was undergoing treatment.
5. The learned counsel for the petitioner has submitted that since 11.9.2022,
the petitioner took the victim for treatment and he was continuously by the
victim's side. The victim had an accidental fall and she sustained the fatal head
injuries. The petitioner who was on interim bail has cooperated with the
investigation. He was on interim bail since 31.10.2022 and he has cooperated
with the investigation. The learned counsel for the petitioner has submitted that
this case cannot be considered to be a case under Section 302 IPC just because
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the victim passed away after the accidental fall and just because her brother
has made some allegation against the victim. There is no ingredient to make out
a case under Section 302 IPC or Section 307 IPC.
6. The learned Addl. P.P. has raised objections stating that there are sufficient
incriminating materials in the case diary against the petitioner. The post-mortem
report also reveals that the injuries were ante-mortem in nature and caused by
blunt force impact (except the surgical wound) and death was due to coma, as
a result of head injuries. The incident occurred on 11.09.2022 and the victim
passed away on 30.09.2022.
7. The learned counsel for the petitioner has relied on the decision of the
Hon'ble Supreme Court in Siddharam Satlingappa Mhetre Vs. State of
Maharashtra and Ors. reported in AIR 2011 SC 312, wherein, it has been
observed that:-
"96. It is imperative for the courts to carefully and with meticulous precision evaluate the
facts of the case. The discretion must be exercised on the basis of the available material and
the facts of the particular case. In cases where the court is of the considered view that the
accused has joined investigation and he is fully cooperating with the investigating agency and
is not likely to abscond, in that event, custodial interrogation should be avoided.
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102. The order granting anticipatory bail for a limited duration and thereafter directing the
accused to surrender and apply before a regular bail is contrary to the legislative intention
and the judgment of the Constitution Bench in Sibbia's case (supra).
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117. The view expressed by this Court in all the above referred judgments have to be
reviewed and once the anticipatory bail is granted then the protection should ordinarily be
available till the end of the trial unless the interim protection by way of the grant of
anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by
the court on finding fresh material or circumstances or on the ground of abuse of the
indulgence by the accused."
8. Reverting back to the case, it is manifest that this case was registered
under Sections 498(A)/325/307 IPC. The statement of the victim could not be
recorded while she was under treatment. The victim died after 18 days. It is
true that the accused had appeared before the I/O and his statement was
recorded but during the investigation, the victim passed away. This case is taken
a new turn after the death of the victim.
9. I have considered the submissions of the learned counsel for the petitioner
that the petitioner who was on interim bail since 31.10.2022 has cooperated
with the investigation and now forwarding him to custody will not be justified.
This submission of the learned counsel for the petitioner cannot be accepted
even though the petitioner was on interim bail since 31.10.2022.
10. The FIR clearly reveals that incriminating materials against the petitioner.
I have also perused the case diary and there are some incriminating materials
against the petitioner, despite the fact that it is submitted on his behalf that his
wife sustained injuries due to an accidental fall.
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8. I have considered the submissions of both the sides with circumspection. I
have also considered the import of the Section under which the petitioner is
booked. The content of the case diary is not brought to the fore at this stage.
The victim passed away due to the injuries sustained as a result of blunt force
impact. I have also scrutinized the post-mortem report. Although, the petitioner
was on interim bail, and although his statement has been recorded, I do not
find this is a fit case to extend the privilege of anticipatory bail to the petitioner
at this juncture.
9. Accordingly, petition stands rejected at this stage.
Send back the case diary.
JUDGE
Comparing Assistant
