Amitabha Bhowmik vs The State Of Tripura
2021 Latest Caselaw 120 Tri

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                 HIGH COURT OF TRIPURA
                       AGARTALA
                              AB 3 of 2021

Amitabha Bhowmik                       .....................Applicant(s)

                                 Versus

The State of Tripura                   ..................Respondent(s)



For the Petitioner(s)     : Mr. P.Roy Barman, Adv.

For the Respondent(s) : Mr. R.Datta, PP


      HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                               ORDER

05.02.2021

[1] This application has been filed under Section 438 of the Code of Criminal Procedure (Cr.P.C, hereunder) for granting bail to the petitioner who is an FIR named accused in R.K.Pur P.S. Case No.2021 RKP 002 which has been registered under Sections 341, 325, 307 and 506 of the Indian Penal Code(IPC hereunder).

[2] Heard Mr. P.Roy Barman, learned counsel appearing for the petitioner as well as Mr. R.Datta, learned PP appearing for the State respondent.

[3] Brief facts of the case are as under:

Shri Rupan Bhattacharjee, son of Gourapada Bhattacharjee, a teacher of Novodaya Vidyalaya, Udaipur lodged a written FIR with the Officer-in-Charge of R.K.Pur Police Station at Udaipur on 03.01.2021 at about 2 p.m alleging, inter alia, that on 27.11.2020 he raised his voice of

protest against the conduct of one Ershad Khan who allegedly kidnapped and raped a woman in his neighbourhood. After that incident, the accused threatened him with dire consequences. He told the informant that Ershad Khan was his own man and in case of any action against Ershad Khan, the informant would be killed. Thereafter, on 02.01.2021 at about 1.15 p.m accused petitioner deliberately attacked the informant at Rajarbag motor stand in Udaipur. When the informant was walking along the street, the accused appeared with his motor bike and smashed one of his legs with his speeding bike. Right leg of the informant got seriously fractured. Immediately thereafter, the accused got down his bike and started beating the informant. He also took out a knife from his pocket and tried to stab him on his belly. Following the cry of the complainant, neighbouring people appeared and rescued him.

[4] Based on his FIR the case was registered and investigation was taken up. Apprehending arrest the accused petitioner has moved this court for his release on pre arrest bail.

[5] Appearing for the accused, Mr. P.Roy Barman, learned counsel submits that the accused has been implicated in a false and fabricated case and moreover, all the charges other than the charge Section 307 IPC are bailable.

[6] Further submission of Mr.Roy Barman, learned Advocate is that the manner in which the informant was allegedly assaulted does not suggest that it was an attempt

to commit murder and therefore, Section 307 does not apply to this case. It is also submitted by Mr.Roy Barman, learned counsel that bail is the rule and refusal of bail is an exception and unless the materials brought before the court by the prosecution make out a prima facie case against the accused, his personal liberty cannot be taken away by refusing bail to him. In support of his contention, Mr.Roy Barman, learned counsel has placed reliance on the judgment dated 27.11.2020 of the Apex Court in Arnab Manoranjan Goswami vs. State of Maharashtra & Ors. in Criminal Appeal No.743 of 2020 arising out of SLP (Crl.) No.559 of 2020 wherein the Apex Court succinctly held that courts should ensure that criminal law does not become a weapon for the selective harassment of citizens and made the following observations:

"60......The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive. In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the appellant that he was being made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie

evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum - the district judiciary, the High Courts and the Supreme Court - to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum - the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.

Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting."

[7] According to learned counsel of the petitioner, the facts and circumstances presented by the prosecution do not justify the arrest and detention of the petitioner and therefore, he deserves pre arrest bail in this case. It is contended by learned counsel that the accused may be released on pre arrest bail on any condition, whatsoever.

[8] Mr.Ratan Datta, learned Public Prosecutor vehemently opposes the bail application and submits that there are enough incriminating materials against the petitioner in the case diary which indicate that the accused assaulted the informant and caused serious injury to him only because he raised protest against the sexual harassment of a helpless woman by the accused and his associates. It is further submitted by Mr.Datta, learned PP that the investigating officer has recorded the statements of

the eye witnesses who have apparently supported the prosecution case. It is also submitted on behalf of the prosecution that relief under Section 438 Cr.P.C. cannot be granted unless there are exceptional circumstances. Learned PP also submits that the injury report placed in CD lends support the allegation of the first informant that he was assaulted and injured by the accused on the date of occurrence because the doctor has opined that he suffered from fracture injury in his leg.

[9] I have considered the submissions of learned counsel representing the parties. I have also gone through the materials which are made available before this court. It appears from the CD that the petitioner submitted an application under Section438 Cr.P.C. in the court of the learned Sessions Judge, Gomati Judicial District which was heard by the learned Sessions Judge and turned down vide his order dated 08.01.2021 in Bail application No.2 of 2021. The parameters which are usually considered for deciding bail application including an application under Section 438 Cr.P.C. are the nature of the offence, the punishment thereof, the manner in which it was committed, the prima facie involvement of the accused in the alleged offence, possibility of his fleeing away from the jurisdiction of the court and the likelihood of his influencing the witnesses of the case.

[10] The crux of the allegation against the accused is that one Ershad Khan allegedly kidnapped a woman and committed rape upon her for which a case was also registered against said Ershad Khan. The informant, who is a

teacher by occupation, raised his voice of protest against the incident publicly. Said Ershad Khan being an associate of the accused, he threatened the informant with dire consequences for raising voice against accused Ershad Khan and thereafter, the alleged occurrence took place.

[11] Allegation against the accused is no doubt serious and the case demonstrates that the witnesses whose statements have been recorded by the Investigating Officer by this time have supported the prosecution case. The injury report also supports the fact that on the alleged date of occurrence the informant was admitted in hospital with fracture injuries.

[12] In view of the said factual context and the materials available on record, prima facie involvement of the accused in the alleged offence cannot be ruled out. Factual background of the judgment of the Apex Court in the case of Arnab Goswami(supra) being completely distinguishable, accused cannot derive benefit from the said judgment. The investigation of the case is in progress and custodial immunity of the accused at this stage of investigation is likely to impair the investigation of the case. Considering all these circumstances, I am of the view that the accused does not deserve pre-arrest bail.

Accordingly, his application stands rejected.

Return the CD.

JUDGE

Saikat Sarma, P.A