Page No.# 1/7 vs The State Of Assam on 20 March, 2026

                                                                       Page No.# 1/7

GAHC010008842026




                                                                 2026:GAU-AS:4093

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

                              Case No. : Bail Appln./245/2026

           MAHIBUL HOQUE ALIAS MOHIBUL HOQUE ALIAS MONI
           S/O ABDUS SAMAD AHMED, RO VILL. AZAD NAGAR, UNDER BARPETA
           P.S. IN THE DIST. BARPETA, ASSAM.



           VERSUS

           THE STATE OF ASSAM
           REPRESENTED BY PP, ASSAM.



Advocate for the Petitioner : MR. M K DAS, A BHARADWAJ,C SAIKIA,S J DUTTA,MS. B
CHETRY,MS D DAS,MS Z ANJUM

Advocate for the Respondent : PP, ASSAM,




                                 BEFORE
              HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                           ORDER

Date : 20.03.2026

Heard Mr. M.K. Das, learned counsel for the petitioner and Mr. K. Baishya, learned Additional Public Prosecutor for the State of Assam.

2. The petitioner Mahibul Hoque @ Mohibul Hoque @ Moni, has filed this application under section 483 of the BNSS, 2023 with prayer for bail as he has Page No.# 2/7

been arrested on 06.01.2025 in connection with Sessions Case No. 209/2022 arising out of Barpeta Police Station Case No. 338/2022 registered under Sections 341/302/34 of Indian Penal Code, 1860 (IPC for short), added Section 120B of the IPC.

3. It is submitted on behalf of the petitioner that all the witnesses have already been examined except the IO. There is not a scintilla of evidence against the petitioner and there is sufficient ground for acquittal of the petitioner. Thereby, his right to liberty as a human being will be violated if he is not enlarged on bail at this stage. It is further submitted that on health ground, his interim bail was considered and he was granted interim bail. The petitioner's conduct is relevant in this case. As the petitioner is a responsible person, he surrendered before the Court after expiry of his interim bail. It is submitted that this is a good ground to consider the bail petition of the petitioner.

4. It is further contended that the prosecution is accepting the order of the Hon'ble Apex Court as an adversarial order, but in fact the order of the Apex Court is a beneficial order. It is submitted that the Apex Court accorded an opportunity to the petitioner to apply for bail and it was thus directed that the Trial Court may consider the bail of the petitioner after the key witnesses including the seizure witnesses have been examined. It is further submitted that now, all the key witnesses have already been examined and only the IO is to be examined.

5. The IO is an official witness and he would never be influenced by any witnesses in this case. The witnesses who were supposed to be vulnerable witnesses and prone to influence by the accused have already been examined.

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6. It is further submitted that the vide order dated 20.05.2024 passed by this Court in IA (Crl.) 435/2022, the petitioner's bail was cancelled by this Court. This IA was preferred by the applicant Harun Rashid and the petitioner was one of the respondents. Aggrieved by the order of this Court cancelling the bail granted to the petitioner, the petitioner approached the Hon'ble Supreme Court through a Special Leave Application and vide order dated 10.12.2024 in SLP (Crl.) No. 7819/2025, the Hon'ble Supreme Court accorded an opportunity to the petitioner to apply for fresh bail and it was further ordered that after examination of the key witnesses the Court may consider the bail application of the petitioner.

7. It is further submitted that when a liberty is granted, that order cannot be taken as adversarial but a beneficial order. It is submitted that now as all the witnesses have been examined, the petitioner can be granted bail.

8. It is submitted that the petitioner's role is only limited. The petitioner has been alleged in connection with this case as one bike was seized from his house. It is submitted that three bikes were seized in connection with this case and one bike was seized from the petitioner's house. Not a single witness has named him or identified him. The learned counsel for the petitioner has described how the witnesses have not deposed against the petitioner. Evidence of PW-1, PW-2, PW-3, PW-4, PW-5 etc. were all discussed in details stating that the petitioner's right to personal liberty will be highly infringed if the petitioner is kept behind bars.

9. It is further submitted that the evidence of some witnesses revealed that the petitioner's bike was not in working condition, when the bike was seized Page No.# 4/7

from the custody of the petitioner, which clearly reveals that the bike must not have been used at the time of the incident. The learned counsel for the petitioner also discussed in details relating to the CDR records and so on and so forth. It is further submitted that the petitioner is behind bars for more than a year without any fault of his.

10. It is further submitted that the petitioner was not aware of the order of the Hon'ble Apex Court directing him to surrender before the Trial Court and thus the petitioner failed to surrender before the Trial Court but subsequently when the petitioner was granted interim bail while he was ailing seriously, the petitioner after treatment surrendered before the Court after expiry of the interim bail period. Thus, his conduct mitigates the situation. It is further submitted that the petitioner is a father of two minor daughters and his wife is pregnant. He will be greatly prejudiced in case of his acquittal.

11. The learned Additional Public Prosecutor, Mr. K. Baishya laid stress in his argument that the chronology of bail order is relevant. The rejection order of the Supreme Court clearly reveals that bail may be considered only after examination of all the key witnesses.

12. It cannot be ignored that I.O is a key witness. A direction from the Hon'ble Supreme Court has to be complied with. Aggrieved by the bail order dated 29.06.2022, passed by the learned Sessions Judge, Barpeta, in Crl. (Misc.) Case No. 403/2022, the informant approached this Court and this Court vide order dated 20.05.2024 in I.A. (Crl.) Case No. 435/2022, granted bail to the present petitioner. Against the order of this court, the petitioner went to the Supreme Court and vide order dated 10.12.2024, the petitioner's Special Leave Page No.# 5/7

Appeal Criminal No. 7819/2024, was dismissed by according liberty to the petitioners to apply for fresh bail after examination of the key witnesses including the seizure witnesses.

13. The petitioner then approached this Court for bail and vide order dated 24.04.2025 in Bail Application No. 716/2025, the petitioner's prayer for bail was rejected. Against this order, the petitioner preferred a Special Leave Petition registered as SLP (Crl.) No. 6637/2025 and vide order dated 16.07.2025, the SLP was dismissed.

14. So stating, the learned Additional Public Prosecutor laid stress in his argument that at this juncture, the petitioner does not have the caveat to apply for bail after examination of key witnesses. By the subsequent order dated 16.07.2025, in SLP No. 6637/2025, the Supreme Court dismissed the petitioner's challenge against the order dated 24.04.2025, passed by the petitioner in B.A. No. 716/2025.

15. It is further submitted by the learned Additional Public Prosecutor that referring to the evidence in a case of bail is not worthwhile. An evidence cannot be discussed while considering a bail application when the matter is subjudiced before the Trial Court, more so, when the matter is at the fag end of the trial and it is to be decided by the Trial Court. The evidence has to be assessed by the learned Trial Court. This Court while dealing with a bail application would not definitely assess the evidence similar to that of a mini trial.

16. I have considered the submissions at the Bar with circumspection.

17. I find force in the argument submitted by the learned Additional Public Page No.# 6/7

Prosecutor. It is true that after this Court rejected the bail application of Mahibul Hoque @ Mohibul Hoque @ Moni vide order dated 24.04.2025 in B.A. No. 716/2025, the petitioner approached the Supreme Court and the petitioner's Special Leave petition was dismissed by the Hon'ble Supreme Court. The earlier direction of the Hon'be Supreme Court is also to be complied with. It is true that the witnesses cannot influence the I.O. at this stage. It is submitted that the I.O. is to be cross-examined on the statements of the witnesses recorded under section 161 of the CrPC.

18. In this case at hand, charges have been framed against the petitioner under Section 302/34 of the IPC. It is no more res integra that while considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like,

the nature of the acquisitions made against the accused,

the manner in which the crime is alleged to have been committed,

the gravity of the offence,

the role attributed to the accused,

the criminal antecedents of the accused,

the probability of tampering of the witnesses,

repeating the offence if the accused is released on bail,

the likelihood of the accused being unavailable in the event, bail is granted,

the possibility of obstructing the proceedings and evading the Courts Page No.# 7/7

of justice, and

the overall desirability of releasing the accused on bail.

19. The gravity of offence cannot be ignored. The overall desirability of releasing the accused on bail also cannot be ignored.

20. The Supreme Court accorded an opportunity to the petitioner to apply for bail after examination of the key witnesses and the I.O. is yet to be examined. The fact that the petitioner's special leave application against the bail order of this Court has been dismissed by the Supreme Court also is taken into account.

21. In view of the foregoing discussions, the Court is constrained to reject the bail application of the petitioner.

22. Bail application stands rejected at this stage.

JUDGE

Comparing Assistant