Page No.# 1/7 vs The State Of Assam
2025 Latest Caselaw 3211 Gua

Gauhati High Court

Page No.# 1/7 vs The State Of Assam on 17 February, 2025

Author: Manash Ranjan Pathak

Bench: Manash Ranjan Pathak

                                                                                     Page No.# 1/7

GAHC010004782025




                                                                             2025:GAU-AS:1693

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

                                  Case No. : Bail Appln./86/2025

             ARBIND RAY
             S/O LATE RAMPUKAR RAY
             R/O KUMARPARA F.A. ROAD,
             DOCTOR BC DAS BYLANE P.S. BHARALUMUKH,
             DIST. KAMRUP (M), ASSAM
             PERMANENT ADDRESS-
             R/O VILL- PINDOTABUJURG P.S. TINANTA
             DIST. BAISHALI BIHAR.



             VERSUS

             THE STATE OF ASSAM
             REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR S M ABDULLAH P, MD IMRAN,MD R ISLAM,MS F
HUSSAIN

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

                                             ORDER

17.02.2025 Heard Ms. F. Hussain, learned counsel for the petitioner and Mr. K. K. Parashar, learned Additional Public Prosecutor, Assam for the State.

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2) This application under Section 483 BNSS, 2023 has been filed by the petitioner, Sri Arbind Ray, son of late Rampukar Ray, resident of Kumarpara, F.A. Road, Doctor B. C. Das by-lane, Police Station - Bharalumukh, Guwahati, District-Kamrup (Metro); Permanent resident of Village - Pindotabujurg, Police Station-Tinanta, District-Baishali, Bihar seeking bail in Sessions Case No. 51/2024, arising out of Basistha Police Station Case No. 621/2023, corresponding to G.R. No. 7661/2023, in which, he was arrested on 16.10.2023 and is in custody since then.

3) Ms. F. Hussain, learned counsel for the petitioner stated that Charge-sheet in said Basistha P.S. Case No. 621/2023 was submitted on 03.01.2024 wherein the petitioner is a charge sheeted accused and on 03.05.2024 the Trial Court, i.e., learned Additional Sessions Judge No. 2, Kamrup (Metro), Guwahati in the Sessions Case No. 51/2024, arising out of said Basistha P.S. Case No. 621/2023 framed charge under Sections 120(B)/302/201 of the IPC read with Section 25(1-A) of the Arms Act against the petitioner to which he pleaded not guilty.

4) Ms. Hussain, learned counsel stated that charge-sheet of the case contains a list of sixty numbers of prosecution witnesses and that in said Sessions Case No. 51/2024 pending before the Court of learned Additional Sessions Judge No. 2, Kamrup (Metro), Guwahati, the prosecution did not examine any of its witnesses till date though the trial of the said case is pending since the date of framing of charge on 03.05.2024.

5) Petitioner also stated that there is no immediate possibility of recording of evidence of any of the prosecution witnesses and considering the numbers of prosecution witnesses to be examined, it is not known as to when the trial of the case will come to an end and in the process, since 16.10.2023 he is in custody for more than 1 year and 4 months. Considering his said length of detention w.e.f. 16.10.2023 and as the trial of the case has not yet commenced, the petitioner has prayed for his bail in Sessions Case No. 51/2024.

6) Ms. F. Hussain, learned counsel for the petitioner also stated that three of the co-accused have already been released on bail by coordinate Bench of this Court.

7) In support of the case of the petitioner, Ms. Hussain, learned counsel placed reliance on the decisions of the Hon'ble Apex Court in the cases of Union of India Vs. K. A. Najeeb, reported in (2021) 3 SCC 713 and Shariful Islam @ Sarif Vs. The State of West Bengal, reported in (2022) SCC OnLine SC 2069.

8) Ms. Hussain, learned counsel for the petitioner submitted that the Hon'ble Apex Court in Page No.# 3/7

the case of K. A. Najeeb (Supra) have held that under-trials cannot indefinitely be detained pending trial and once it is obvious that a timely trial would not be possible and that the accused has suffered incarceration for a significant period of time, the Court would ordinarily be obligated to enlarge them on bail.

9) Ms. Hussain, submitted that in the case of Shariful Islam @ Sarif (Supra) on finding that the accused person was in custody for more than 1 year 6 months since 27.01.2021 and that there was no likelihood of completion of the trial in the near future, as such the Hon'ble Supreme Court by order dated 04.08.2022 granted bail to the said accused person.

10) Considered the judgments cited by Ms. Hussain, learned counsel for the petitioner.

11) In the case of K. A. Najeeb (Supra), it is seen that the accused was arrested in the case on 10.04.2015 and the Hon'ble High Court of Kerala, during the trial of the case, after about 4 years and 3 months in custody, released the accused person of the case on bail on 23.07.2019 and the said order being challenged by the Union of India, the Hon'ble Apex Court rejected the appeal.

12) Though Ms. Hussain, learned counsel for the petitioner placed the decisions of the Hon'ble Supreme Court in the case of Shariful Islam @ Sarif (Supra), however, on being enquired, she did not state as to whether charge sheet in the said case was filed or not, except stating that the Hon'ble Apex Court considered the bail of the accused as he was in custody for more than 1 year 6 months.

13) In the case in hand, as per the FIR of the case lodged on 13.10.2023 by the complainant, i.e., brother of the victim alleging that on the previous night, i.e., on 12.10.2023 at about 8:10 P.M., some miscreants who were coming on a two-wheeler shot his brother while he was sitting on his bike bearing registration No. AS-01-BM-6614 near Khanapara Ganesh Temple and though people in the locality shifted his injured brother to the Metro Hospital for treatment and examination, but he died due to the bullet injuries sustained by him in the said incident. In the FIR, the complainant stated that his brother was shot in a planned manner and he suspects his sister-in-law, her mother, her former husband along with someone else involved in the said crime.

14) During the course of investigation, police apprehended many persons, including the petitioner, one of the prime accused, along with others, recovered the bike in which the concerned miscreants came and shot the brother of the complainant and that the SDRF Page No.# 4/7

personnel, in presence of witnesses, recovered the pistol that was used for committing the crime which was thrown by the accused person in the Bharalu river, on advice of the petitioner, where the accused led the police personnel to the said site of Bharalu river and further, the throwing of the pistol used in the crime thrown in the Bharalu river was found in a CCTV footage.

15) On perusal of the chargesheet, the case of the prosecution is that the deceased was the childhood friend of the accused Gitashree Sinha and said Ms. Sinha married him. After her marriage with the victim, said Ms. Sinha came in contact with one Sourav Goenka @ Agarwal and they became very close and both of them wanted to get married, which fact was also well known to the parents and sister of said Ms. Sinha. But due to presence of the deceased victim, the marriage between said Ms. Sinha and Sourav Goenka @ Agarwal was not possible for them. As such, in order to remove the victim, both of them took the help of the petitioner, who is an expert in black magic. But, as petitioner's black magic failed, both the petitioner and said Sourav Goenka @ Agarwal went to Mayong and took help of expert black magicians, which also failed. As both the prime accused and the petitioner failed to remove the victim from their way, they decided for some other way and for that the accused Sourav Goenka @ Agarwal procured a pistol from Bihar, which he kept in the house of the petitioner. After using the pistol in the crime, on advice of the petitioner, the accused Sourav Goenka @ Agarwal threw the said pistol in the Bharalu river and during investigation of the case, it was recovered by SDRF personnel.

16) As per the prosecution's case in the charge-sheet, the petitioner is one of the conspirators of the crime in removing the deceased from the way for the marriage between accused persons Sourav Goenka @ Agarwal and Gitashree Sinha.

17) The Hon'ble Supreme Court in the case of State of Uttar Pradesh Vs. Amar Mani Tripathi , reported in (2005) 8 SCC 21, in a case of consideration of bail, settled as follows-

"18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati Vs. NCT, Delhi {(2001) Page No.# 5/7

4 SCC 280} and Gurcharan Singh Vs. State (Delhi Admn.) {(1978) 1 SCC 118}].

While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan [{(2004) 7 SCC 528}: (SCC pp. 535- 36, para 11] "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. [See Ram Govind Upadhyay Vs. Sudarshan Singh{(2002) 3 SCC 598} and Puran Vs.Rambilas {(2001) 6 SCC 338}]."

18) In the case of X Vs. State of Rajasthan, reported in 2024 STPL 12498 SC = 2024 INSC 909, the Hon'ble Apex Court [Special Leave Petition (Criminal) No. 13378 of 2024-Decided on 27-11- 2024] have held that --

"4. Ordinarily in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court be it the Trial Court or the High Court should be loath in entertaining the bail application of the accused.

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15. Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim.

16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that right of the accused to have a speedy trial has been infringed.

19) In the case in hand, the petitioner is in custody since 15.10.2023 and after filing the charge sheet in Basistha P.S. Case No. 621/2023 on 03.01.2024, the Trial Court in Sessions Case No. 51/2024 on 03.05.2024 framed charge under Sections 120(B)/302/201 of the IPC read with Section 25(1-A) of the Arms Act against the petitioner. However, prosecution is yet to adduce evidence of its witnesses in the said Sessions Case, which is now fixed on 13.03.2025.

20) The learned Trial Court framed charge under Sections 120(B)/302/201 of the IPC read with Section 25(1-A) of the Arms Act against the petitioner, being prima facie satisfied about the involvement of the petitioner in the heinous crime of murder and the trial of the case has begun.

Moreover, as per his own submission, the petitioner is a permanent resident of Village - Pindotabujurg of Baishali District, State of Bihar, and if at this stage, the petitioner is released on bail, there is every probability that he may jump the bail and delay the trial.

21) In said Sessions Case No. 51/2024, deceased victim's mother-in-law and sister-in-law were arrested in the case along with others, including the petitioner and charges were also framed against them. But after the death of his father-in-law, deceased victim's mother-in-law and sister- in-law were enlarged on bail. Another co-accused Gobinda Kumar arrested in said Basistha P.S. Case No. 621/2023 has been released on bail by a co-ordinate Bench of this Court on 07.02.2025 in B.A. No. 169/2025. But, as noted above, this Court found petitioner's involvements in offence under Section 302 IPC read with offence under Section 25 (1-A) of the Arms Act in said Basistha P.S. Case No. 621/2023.

22) Considering entire aspect of the matter, his alleged involvement in a heinous crime and Page No.# 7/7

that 13.03.2025 is the date fixed for recording of evidence of prosecution witnesses and also considering the Judgments of the Hon'ble Apex Court noted above, this court is of the opinion that the petitioner is not entitled for his bail in said Sessions Case No. 51/2024, arising out of Basistha Police Station Case No. 621/2023, pending before the Court of learned Additional Sessions Judge No. 2, Kamrup (Metro), Guwahati, considering his detention in custody since 15.10.2023.

23) Accordingly, this bail application of the petitioner, namely, Sri Arbind Ray, son of late Rampukar Ray, in Sessions Case No. 51/2024, arising out of Basistha Police Station Case No. 621/2023, pending before the Court of learned Additional Sessions Judge No. 2, Kamrup (Metro), Guwahati stands rejected at this stage.

JUDGE

Comparing Assistant