Gauhati High Court
Md Sahidul Islam @ Abu Sahid vs The State Of Assam on 3 June, 2024
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GAHC010108212024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1427/2024
MD SAHIDUL ISLAM @ ABU SAHID
S/O ALTAB ALI, R/O VILL NO. 2 AHMEDPUR, P.O.-SONAPUR, P.S.-BIHPURIA,
PIN-784160, DIST- LAKHIMPUR (ASSAM)
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : F K R AHMED
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
03.06.2024
1. Heard Mr. F.K.R. Ahmed, learned counsel for the petitioner.
2. This application has been filed under Section 438 of the Cr.PC with a
prayer for pre arrest bail as they are apprehending arrest in connection with
P.R.C. Case No. 200/2023 arising out of Bihpuria, P.S. Case No. 51/2016 under
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Sections 366(A)/34 IPC pending in the Court of learned Sub-Judicial
Magistrate(S), Bihupiria,
3. Heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam.
4. The allegation against the petitioner is that he along with his co-accused
had kidnapped a minor victim.
5. Charge sheet has been laid against the petitioner under Sections 366(A)/34
IPC.
6. It is submitted on behalf of the petitioner that both the parties have
executed a Deed of Agreement wherein the informant has stated that he has
lodged an FIR on a misunderstanding. He is not willing to proceed against the
petitioner any further. The Deed of Agreement is marked as Annexure-E of the
petition.
7. The petitioner has also relied on the decisions of the Hon'ble Supre me
Court in Aman Preet Singh Vs. C.B.I. through Director, reported in (2021) 1 SCC
676, wherein it is held and observed that :
"A reading of the aforesaid shows that it is the guiding principle for a
Magistrate while exercising powers under Section 170, Cr.P.C. which had been set out.
The Magistrate or the Court empowered to take cognizance or try the accused has to
accept the charge sheet forthwith and proceed in accordance with the procedure laid
down under Section 173, Cr.P.C. It has been rightly observed that in such a case the
Magistrate or the Court is required to invariably issue a process of summons and not
warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of
arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C.
that the accused has either been absconding or shall not obey the summons or has
refused to appear despite proof of due service of summons upon him. In fact the
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observations in Sub-para (iii) above by the High Court are in the nature of caution.
Insofar as the present case is concerned and the general principles under Section 170
Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment
in the context of an accused in a non-bailable offence whose custody was not required
during the period of investigation. In such a scenario, it is appropriate that the accused
is released on bail as the circumstances 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. The rationale has been succinctly set out that if a person has been
enlarged and free for many years and has not even been arrested during investigation,
to suddenly direct his arrest and to be incarcerated merely because charge sheet has
been filed would be contrary to the governing principles for grant of bail. We could not
agree more with this.
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."
8. It is further submitted on behalf of the petitioner that the victim is already
married to another person and is blessed with a child who is 7 years old now.
9. I have considered the submissions at the Bar with circumspection.
10. Call for the scanned copies of the LCR.
11. Considering all aspects and in view of my foregoing discussions it is
provided that in the event of the arrest, the petitioner shall be enlarged on bail
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of Rs. 50,000/- each with a suitable surety of like amount to the satisfaction of
the Investigating Authority, till the next date of listing.
12. List on 20.06.2024.
JUDGE
Comparing Assistant
