Gauhati High Court
Page No.# 1/5 vs The State Of Assam on 26 May, 2025
Page No.# 1/5
GAHC010110892025
2025:GAU-AS:6771
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1724/2025
MD MASUD AMIN
S/O MD. NURUL AMIN
R/O 2 NO. KHULABHYUAN/KURANIBORI
P.S. MAYONG
DIST.MORIGAON, ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR. M DUTTA, S DAS,MR K M BORA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
26.05.2025
1. Heard Mr. M. Dutta, the learned counsel for the petitioner. Also
heard Mr. R.J. Baruah, the learned Additional Public Prosecutor, appearing
for the State of Assam.
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2. This application under Section 483 of the Bharatiya Nagarik
Suraksha Sanhita(BNSS), 2023 has been filed by the petitioner, namely,
Md. Masud Amin, who has been detained behind the bars since
18.03.2025 (for the last 69 days), in connection with Jagiroad P.S. Case
No. 61/2025, under Sections 69 and 87 of the BNS, 2023.
3. The gist of accusation in this case is that the maternal aunt of
the victim girl had lodged an FIR before the Officer-In-Charge of Jagiroad
Police Station, on 18.03.2025, inter alia, alleging that on 17.03.2025 her
niece was kidnapped by the present petitioner, when there was no one
present in their residence.
4. It is further stated in the FIR that the victim was later on
recovered on the same day, at about 6:00 PM.
5. The learned counsel for the petitioner has submitted that
though initially the FIR was registered under Section 87 of the BNS, 2023.
However, later on, Section 69 of the BNS, 2023 was added. He submits
that there is no ingredient of Section 69 of the BNS, 2023, in the instant
case.
6. He also submits that though the petitioner has been detained
behind the bars for the last 69 days, and he had filed an application on
17.05.2025, before the learned Additional Chief Judicial Magistrate,
Morigaon praying for default bail under Section 187 (3)(ii) of the BNSS,
2023. However, his prayer was rejected by the said Court on the ground
that the offence involved under Section 69 of the BNS, 2023 prescribes
punishment which may extend to ten years and with a fine. Hence, it is
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covered under Section 187(3)(i) of the BNSS, 2023, where an arrestee can
be kept behind the bars for 90 days, if the investigation relates to an
offence punishable with death, imprisonment for life or imprisonment for a
term of ten years or more.
7. The learned counsel for the petitioner has submitted that the
learned Magistrate has wrongly observed in the order rejecting the bail
that 187(3) (ii) of the BNSS, 2023 is not applicable.
8. He submits that in the light of the observations made by the
Apex Court in the case of " Rakesh Kumar Paul Vs. State of Assam"
reported in "(2017) 15 SCC 67", wherein, it was observed that Section
167(2)(a)(i) of the Code of Criminal Procedure, 1973 is applicable in cases
where the accused is charged with offences punishable with death or any
lower sentence; (ii) offences punishable with life imprisonment or any
lower sentence, and (iii) offences punishable with a minimum sentence of
ten years.
9. The learned counsel for the petitioner has submitted that Section
167(2)(a)(i) corresponds to the provisions of Section 187(3)(i) of BNSS,
2023 and therefore, the ratio of the case of Rakesh Kumar Paul Vs.
State of Assam (supra) is applicable in this case also.
10. I have also heard the learned Additional Public Prosecutor, who
submits that the prayer for default bail was filed before the learned
Additional Chief Judicial Magistrate, Morigaon on the 60th day, of the
detention of the present petitioner, whereas, a default bail can be claimed
only on the next day, i.e. on 18.05.2025.
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11. I have considered the submissions made by the learned counsel
for both the sides. It is apparent from the perusal of the case of Rakesh
Kumar Paul Vs. State of Assam (supra) that the said judgment was
passed in respect of default bail in connection with the provisions relating
to Section 167(2)(a)(i) of the Code of Criminal Procedure, 1973, whereas
the petitioner is claiming default bail under Section 187(3)(ii) of the BNSS,
2023.
12. If we compare the provisions of Section 187(3)(i) of the BNSS,
2023 and that of Section 167(2)(a)(i) of the Code of Criminal Procedure,
1973, it appears that while enacting BNSS, 2023 the ligature has used
different phrase, i.e. "for a term of ten years or more, whereas, in Section
167(2)(a)(i) of the Code of Criminal Procedure, 1973, the phrase, i.e. "for
a term of not less than ten years has been used."
13. The interpretation of the provisions contained in Section 167(2)(a)
(i) of the Code of Criminal Procedure, 1973 by the Apex Court in the case
of Rakesh Kumar Paul Vs. State of Assam (supra) may not be
applicable in case of interpretation of the provisions contained in Section
187(3)(i) of the BNSS, 2023, as it uses a different phrase than that of
which was interpreted by the Apex Court in the case of Rakesh Kumar
Paul Vs. State of Assam (supra).
14. Same needs meticulous examination, however, as the petitioner
has been detained behind the bars for the last 69 days, this Court is of the
considered opinion that he is otherwise also entitled to get bail,
considering his period of detention. Hence, this Court is refraining itself
from deciding the question of applicability of the ratio of the case of
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Rakesh Kumar Paul Vs. State of Assam (supra) vis-à-vis Section
187(3)(i) of the BNSS, 2023.
15. In view of the above, this Court is of the considered opinion that
considering the length of his detention undergone by the petitioner, if he
co-operates in the investigation, his custodial detention may not be
necessary for fair completion of the investigation of Jagiroad P.S. Case No.
61/2025.
16. For the above reasons, the above-named petitioner is allowed to
go on bail of Rs. 30,000/- with a suitable surety of like amount, subject to
the satisfaction of the learned Chief Judicial Magistrate with following
conditions that:-
(i) the petitioner shall co-operate in the investigation; and
(ii) the petitioner shall not directly or indirectly make any inducement,
threat or promise to the informant or to any other person who may be
acquainted with the facts of the case so as to dissuade such person from
disclosing such facts before the Investigating Officer or to any Court.
17. Send back the Case Diary.
18. This bail application is accordingly disposed of.
JUDGE
Comparing Assistant
