Gauhati High Court
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GAHC010197002024
2024:GAU-AS:11481
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2889/2024
RAFIJUL ISLAM @ RAFIJUL ALI @ BABU
S/O ABUL KALAM
R/O VILL- PAKA BETBARI PAM, P.S AND DIST. BARPETA, ASSAM- 781352
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PP, ASSAM
Advocate for the Petitioner : MR. N J DUTTA, MR. M M ZAMAN,MR N AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
22.11.2024
1. Heard Mr. M.M. Zaman, learned counsel for the accused petitioner. Also
heard Mr. P. Borthakur, learned Addl. P.P., Assam appearing for the State
respondent.
2. This petition is filed under Section 483 of BNSS, 2023 for granting regular
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bail to the accused petitioner namely, Rafijul Islam @Rafijul Ali @Babu,
who was arrested on 23.11.2023 in connection with Sessions Case
No.08/2024 being registered under Sections under Sections 341/326-
A/307/302/34 of the IPC, arising out of Barpeta P.S. Case No.553/2023,
pending before the Court of learned Addl. Sessions Judge (FTC), Barpeta.
3. The scanned copy of the Trial Court's records is received.
4. The case of the prosecutrix is that the complainant's 17 years old minor
daughter and the accused petitioner were in love relationship. On 19.11.2023 at
around 8 p.m., the accused petitioner along with other co-accused person came
in a four wheeler and forcefully tried to kidnap the complainant's two daughters.
When the complainant's daughters tried to stop them, they threw acid on their
body, for which they were seriously injured. Accordingly, an FIR was registered.
5. Mr. M.M. Zaman, learned counsel for the accused petitioner submits that
the petitioner has been languishing in jail since last almost 1 year. He further
submits that the trial has commenced and out of 57 witnesses 22 have already
been examined. He also submits that the petitioner is innocent and one co-
accused person has already been granted bail earlier by this Court vide order
dated 20.05.2024 passed in Bail Appln. No.1279/2024.
6. Per contra, Mr. P. Borthakur, learned Addl. P.P. vehemently opposes the
prayer for bail. He submits that the case is heinous in nature and from the
evidence adduced it has clearly come out that the petitioner has thrown acid to
the two daughters of the complainant, for which they have been seriously
injured and one of them had later on expired on 11.12.2023. He further submits
that a perusal of the evidence by and large adduced so far clearly indicates that
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it is unlikely that the accused petitioner shall be acquitted.
7. I have heard the learned counsels for the parties and perused the
materials available on record including the Trial Court's records.
8. It appears that the accused petitioner was arrested on 23.11.2023 and
since then he has been languishing in jail, which is for almost one year. It
appears that trial has commenced. It further appears that out of 57 witnesses
only 22 have been examined till date by the learned Trial Court. It also appears
that two of the witnesses have implicated the accused petitioner for the alleged
offences. It appears that the trial is likely to take some time. It further appears
that no adverse antecedence has been collected against the accused petitioner
by the Investigating Officer. It further appears that there are no materials
available on record to indicate that if the accused petitioner is enlarged on bail,
he is likely to flee from justice.
9. Undoubtedly, the offence is grave and heinous. However, this Court is not
the convicting Court and is only considering whether to set the petitioner on bail
or not. The object of bail is not jail but to secure the appearance of the accused
during trial. It is the fundamental principle of criminal jurisprudence that
presumption of innocence always lies in favour of the accused until he is tried
and found guilty. The personal liberty of the accused is of paramount
importance and deprivation of the same is a matter of grave concern. It should
be curtailed only when it becomes imperative to the peculiar facts and
circumstances of the case and the accused ought not to be kept in detention for
an indefinite period. In fact, keeping of the petitioner/accused in custody in
further incarceration will amount to inflicting a punishment pre-conviction, which
is against the mandate of criminal jurisprudence. It is well settled legal position
that even if there is a prima-facie case against the accused, the approach of the
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Court in the matter of bail should be that the accused should not be detained by
way of punishment. Reference in this regard is made to the decision of the Apex
Court in the case of Sanjay Chandra vs CBI reported in 2012 1 SCC 40 .
Paragraph numbers 21, 22, 24, 25, 29, 34, 35 and 36 of the said Judgment is
reproduced hereunder for ready reference:-
"21. In bail applications, generally, it has been laid down from the earliest times
that the object of bail is to secure the appearance of the accused person at his
trial by reasonable amount of bail. The object of bail is neither punitive nor
preventative. Deprivation of liberty must be considered a punishment, unless it
can be required to ensure that an accused person will stand his trial when
called upon. The courts owe more than verbal respect to the principle that
punishment begins after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody
pending completion of trial could be a cause of great hardship. From time to
time, necessity demands that some un-convicted persons should be held in
custody pending trial to secure their attendance at the trial but in such cases,
'necessity' is the operative test. In this country, it would be quite contrary to the
concept of personal liberty enshrined in the Constitution that any person should
be punished in respect of any matter, upon which, he has not been convicted or
that in any circumstances, he should be deprived of his liberty upon only the
belief that he will tamper with the witnesses if left at liberty, save in the most
extraordinary circumstances.
24. In the instant case, as we have already noticed that the "pointing finger of
accusation" against the appellants is 'the seriousness of the charge'. The
offences alleged are economic offences which has resulted in loss to the State
exchequer. Though, they contend that there is possibility of the appellants
tampering witnesses, they have not placed any material in support of the
allegation. In our view, seriousness of the charge is, no doubt, one of the
relevant considerations while considering bail applications but that is not the
only test or the factor. The other factor that also requires to be taken note of is
the punishment that could be imposed after trial and conviction, both under the
Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is
the only test, we would not be balancing the Constitutional Rights but rather
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"recalibration of the scales of justice."
25. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts
to grant bail to accused pending trial or in appeal against convictions, since the
jurisdiction is discretionary, it has to be exercised with great care and caution by
balancing valuable right of liberty of an individual and the interest of the society
in general. In our view, the reasoning adopted by the Ld. District Judge, which
is affirmed by the High Court, in our opinion, a denial of the whole basis of our
system of law and normal rule of bail system. It transcends respect for the
requirement that a man shall be considered innocent until he is found guilty. If
such power is recognized, then it may lead to chaotic situation and would
jeopardize the personal liberty of an individual.
29. In Gudikanti Narasimhulu v. Public Prosecutor, V.R. Krishna Iyer, J., sitting as
Chamber Judge, enunciated the principles of bail thus: SCC pp. 242-46, paras 3,
5-9 & 13.
"3. What, then, is "judicial discretion" in this bail context? In the elegant
words of Benjamin Cardozo:
The Judge, even when he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant roaming at will in pursuit
of his own ideal of beauty or of goodness. He is to draw his inspiration
from consecrated principles. He is not to yield to spasmodic sentiment, to
vague and unregulated benevolence. He is to exercise a discretion
informed by tradition, methodized by analogy, disciplined by system, and
subordinated to "the primordial necessity of order in the social life". Wide
enough in all conscience is the field of discretion that remains."
Even so it is useful to notice the tart terms of Lord Camden that "the
discretion of a Judge is the law of tyrants: it is always unknown, it is
different in different men; it is casual, and depends upon constitution,
temper and passion. In the best, it is oftentimes caprice; in the worst, it
is every vice, folly and passion to which human nature is liable...."
5........Perhaps, this is an overly simplistic statement and we must
remember the constitutional focus in Articles 21 and 19 before following
diffuse observations and practices in the English system. Even in England
there is a growing awareness that the working of the bail system requires
a second look from the point of view of correct legal criteria and sound
principles, as has been pointed out by Dr. Bottomley.
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6. Let us have a glance at the pros and cons and the true principle
around which other relevant factors must revolve. When the case is
finally disposed of and a person is sentenced to incarceration, things
stand on a different footing. We are concerned with the penultimate
stage and the principal rule to guide release on bail should be to secure
the presence of the applicant who seeks to be liberated, to take judgment
and serve sentence in the event of the Court punishing him with
imprisonment. In this perspective, relevance of considerations is
regulated by their nexus with the likely absence of the applicant for fear
of a severe sentence, if such be plausible in the case. As Erle. J.
indicated, when the crime charged (of which a conviction has been
sustained) is of the highest magnitude and the punishment of it assigned
by law is of extreme severity, the Court may reasonably presume, some
evidence warranting, that no amount of bail would secure the presence of
the convict at the stage of judgment, should he be enlarged. Lord
Campbell, C.J. concurred in this approach in that case and Coleridge J.
set down the order of priorities as follows:
"I do not think that an accused party is detained in custody
because of his guilt, but because there are sufficient probable grounds for
the charge against him as to make it proper that he should be tried, and
because the detention is necessary to ensure his appearance at trial .... It
is a very important element in considering whether the party, if admitted
to bail, would appear to take his trial; and I think that in coming to a
determination on that point three elements will generally be found the
most important: the charge, the nature of the evidence by which it is
supported, and the punishment to which the party would be liable if
convicted.
In the present case, the charge is that of wilful murder; the
evidence contains an admission by the prisoners of the truth of the
charge, and the punishment of the offence is, by law, death."
7. It is thus obvious that the nature of the charge is the vital factor
and the nature of the evidence also is pertinent. The punishment to
which the party may be liable, if convicted or conviction is confirmed, also
bears upon the issue.
8. Another relevant factor is as to whether the course of justice
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would be thwarted by him who seeks the benignant jurisdiction of the
Court to be freed for the time being.
9. Thus the legal principles and practice validate the Court
considering the likelihood of the applicant interfering with witnesses for
the prosecution or otherwise polluting the process of justice. It is not only
traditional but rational, in this context, to enquire into the antecedents of
a man who is applying for bail to find whether he has a bad record-
particularly a record which suggests that he is likely to commit serious
offences while on bail. In regard to habituals, it is part of criminological
history that a thoughtless bail order has enabled the bailee to exploit the
opportunity to inflict further crimes on the members of society. Bail
discretion, on the basis of evidence about the criminal record of a
defendant is therefore not an exercise in irrelevance.
13. Viewed from this perspective, we gain a better insight into the
rules of the game. When a person, charged with a grave offence, has
been acquitted at a stage, has the intermediate acquittal pertinence to a
bail plea when the appeal before this Court pends? Yes, it has. The panic
which might prompt the accused to jump the gauntlet of justice is less,
having enjoyed the confidence of the Court's verdict once. Concurrent
holdings of guilt have the opposite effect. Again, the ground for denial of
provisional release becomes weaker when the fact stares us in the face
that a fair finding-if that be soof innocence has been recorded by one
Court. It may not be conclusive, for the judgment of acquittal may be ex
facie wrong, the likelihood of desperate reprisal, if enlarged, may be a
deterrent and his own safety may be more in prison than in the vengeful
village where feuds have provoked the violent offence. It depends,
Antecedents of the man and socio-geographical circumstances have a
bearing only from this angle. Police exaggerations of prospective
misconduct of the accused, if enlarged, must be soberly sized up lest
danger of excesses and injustice creep subtly into the discretionary curial
technique. Bad record and police prediction of criminal prospects to
invalidate the bail plea are admissible in principle but shall not stampede
the Court into a complacent refusal."
34. More recently, in the case of Siddharam Satlingappa Mhetre v. State of
Maharashtra this Court observed that: (SCC p. 728, para 84)
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"(84) just as liberty is precious to an individual, so is the society's interest
in maintenance of peace, law and order. Both are equally important."
35. This Court further observed: (Siddharam Satlingappa case SCC p737, para
116)
"116. Personal liberty is a very precious fundamental right and it should
be curtailed only when it becomes imperative according to the peculiar
facts and circumstances of the case."
36. This Court has taken the view that when there is a delay in the trial, bail
should be granted to the accused [See Babba v. State of Maharashtra, Vivek
Kumar v. State of U.P. & Mahesh Kumar Bhawsinghka v. State of Delhi]."
10. In the present case, the trial is likely to take time, as only 22 out of 57
witnesses have been examined till date. Thus, further detention of the accused
petitioner is not justified.
11. Hence, considering the length of detention and that the trial is unlikely to
be concluded at an early date and also keeping in mind the factors for
consideration of bail, vis-à-vis, Article 21 of the Constitution of India, this Court
is inclined to grant bail to the accused petitioner.
12. Accordingly, it is provided that the accused petitioner, named above, shall
be released on bail of Rs.50,000/- (Rupees Fifty Thousand) with two
sureties of like amount to the satisfaction of the learned Addl. Sessions Judge
(FTC), Barpeta subject to the following conditions-
i) That the accused petitioner shall continue to appear before the learned
Trial Court on all dates to be fixed from time to time till the case is
disposed of;
ii) That the accused petitioner shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of
the case so as to dissuade him from disclosing such facts to the Police
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Officer or the Court;
iii) That the accused petitioner shall refrain from committing any similar
offences in future, of which he is suspected of commission;
iv) That the accused/petitioner and his bailors shall produce their Voter
Identity Card/Passport/ Permanent Residential Certificate, whichever is
available at the time of submission of the bail bonds for satisfaction of the
learned Trial Court regarding their identity and address and then return
the same retaining photocopy thereof on record; and
v) That the accused petitioner shall not leave the jurisdiction of the
learned Trial Court without prior permission of the said Court.
13. The bail application stands disposed of.
JUDGE
Comparing Assistant
