Majid Ali and Anr v. The State of Assam

ORDER Date : 31-05-2023 Heard Mr. S.H. Saikia, learned counsel for the petitioners and Mr. K.K. Das, learned Additional Public Prosecutor for the respondent State of Assam.

¶2By this application under Section 438, Code of Criminal Procedure, 1973 [CrPC], the Page No. 2/4 petitioners viz. [1] Majid Ali and [2] Alkash Ali @ Alkas Ali have approached this Court seeking the benefit of pre-arrest bail, apprehending their arrest, in connection with Sialmari Police Station Case no. 40/2022, registered for offences punishable under Sections 147/148/149/325/326/436/427, Indian Penal Code [IPC] for the second occasion, after rejection of the previous pre-arrest bail application, A.B. no. 3047/2022 by an order dated

16.12.2022, after hearing the learned counsel for the parties and perusal of the materials available in the case diary, produced on that date by the learned Additional Public Prosecutor.

¶3The previous pre-arrest bail application was preferred by the two petitioners along with 23 other petitioners, whose names figured in the First Information Report [FIR] lodged

19.09.2022 in connection with Sialmari Police Station Case no. 40/2022.

¶4Upon perusal of the materials in the case diary, this Court, by the order dated

16.12.2022, extended the benefit of pre-arrest bail to 16 nos. of petitioners in A.B. no. 3047/2022, while rejecting the prayers in respect of 7 nos. of petitioners therein including the two petitioners, herein finding ample incriminating materials against those 9 nos. of petitioners, whose names figured in the FIR.

¶5The relevant parts of the order dated 16.12.2022 are extracted hereinunder :-

"3. The names of all the accused-petitioners herein have figured in the First Information Report [FIR] lodged on 19.09.2022 in connection with Sialmari Police Station Case no. 40/2022. As per the FIR, at about 08-00 a.m. on 19.09.2022, the accused persons forming an unlawful assembly and arming themselves with sticks, daggers, axes, daos and other deadly weapons, criminally trespassed into the house premises of the informant and assaulted the informant's father-in-law [Samsul Ali] by sharp weapons. As a result, Samsul Ali sustained grievous injuries. Thereafter, the group of assailants set two houses of the informant on fire. As a result, about 50 Mon [1 mon = 40 Kg] of jute got destroyed along with all other articles inside the houses. The group of assailants also destroyed/burnt the few other houses of the informant's relatives viz. Saidar Ali, Sahidul, Sagar Ali, Muktar Ali and Hanif Ali. Page No. 3/4

¶4Mr. B. Sharma, learned Additional Public Prosecutor who has received the case diary and Mr. D. Sharma, learned counsel appearing for the informant have pointed out to the materials regarding the destructions/damages caused by the group of assailants. The photographs available in the case record go to depict that few of the houses were completely destroyed/burnt. However, contrary to the allegations in the FIR, the injured Samsul sustained simple injury, as per the medical report available in the case diary. In so far as the damages/burning of the houses are concerned, the statements of the witnesses are perused and from a close look at the statements, it has emerged that the following accused persons i.e. [i] Latif Ali [petitioner no. 2], [ii] Majid Ali [petitioner no. 3], [iii] Alkash Ali [petitioner no. 4], [iv] Makrom Ali [petitioner no. 7], [v] Islam Ali [petitioner no. 9], [vi] Hazarat Ali [petitioner no. 12], [vii] Jiyarul Haque [petitioner no. 13], [viii] Lokman Ali [petitioner no. 14] and [ix] Jalal Ali [petitioner no. 23] were found involved in the act of arson.

¶5By order dated 17.10.2022, all the petitioners were provided interim protection. In view of the emergence of the above incriminating materials in the case diary regarding complicity of the afore-mentioned 9 [nine] nos. of petitioners, collected during the course of investigation carried out so far, this Court is of the considered view that the benefit of pre-arrest bail under Section 438, CrPC cannot be extended to the following petitioners - [i] Latif Ali [petitioner no. 2], [ii] Majid Ali [petitioner no. 3], [iii] Alkash Ali [petitioner no. 4], [iv] Makrom Ali [petitioner no. 7], [v] Islam @ Ismail Ali [petitioner no. 9], [vi] Hazarat Ali @ Hastha Ali [petitioner no. 12], [vii] Jiyarul Haque [petitioner no. 13], [viii] Lokman Ali [petitioner no. 14] and [ix] Jalal Ali [petitioner no. 23].

¶6It has also emerged that the remaining petitioners have appeared before the Investigating Officer of the case pursuant to the order dated 17.10.2022. In view of the same, while recalling the interim order passed in favour of the following petitioners - [i] Latif Ali [petitioner no. 2], [ii] Majid Ali [petitioner no. 3], [iii] Alkash Ali [petitioner no. 4], [iv] Makrom Ali [petitioner no. 7], [v] Islam Ali [petitioner no. 9], [vi] Hazarat Ali [petitioner no. 12], [vii] Jiyarul Haque [petitioner no. 13], [viii] Lokman Ali [petitioner no. 14] and [ix] Jalal Ali [petitioner no. 23], the interim protections granted to the remaining petitioners i.e. [i] Kurban Ali [petitioner no. 1], [ii] Maser Ali [petitioner no. 5], [iii] Jahuruddin [petitioner no. 6], [iv] Chand Mohammad @ Sanu [petitioner no. 8], [v] Sonabor Ali [petitioner no. 10], [vi] Sadar @ Sadar Ali [petitioner Page No. 4/4 no. 11], [vii] Ajibar [petitioner no. 15], [viii] Asraf Ali [petitioner no. 16], [ix] Asadullah [petitioner no. 17], [x] Nashir Uddin [petitioner no. 18] [xi] Usman Ali [petitioner no. 19], [xii] Eusuf Ali [petitioner no. 20], [xiii] Surman Ali [petitioner no. 21], [xiv] Lalchand [petitioner no. 22], [xv] Sarbesh Ali [petitioner no. 24] and [xvi] Sahjahan Ali [petitioner no. 25] by order dated 17.10.2022, are made absolute, subject to the condition nos. [i], [ii] & [iii] set forth already in the said order dated 17.10.2022."

¶6It is settled that after rejection of application for pre-arrest bail under Section 438, CrPC on merits, there is scope to file a subsequent bail application for pre-arrest bail only if there is a change in the fact situation or in law which requires earlier view being interfered with or where the earlier finding has become obsolete.

¶7In the present pre-arrest bail application preferred for the second time, the petitioners have averred that they have been suffering from illness and are undergoing treatment. It is averred that facts and circumstances of the case do not attract the ingredients of the offences for which the FIR has been registered. On perusal of the averments made in this pre-arrest bail application, preferred for the second time, this Court does not find any good and sufficient reason for re-consideration of the order dated 16.12.2022 passed in the petitioners' previous pre-arrest bail application, A.B. no. 3047/2022. Accordingly, the instant application being devoid of merit, stands dismissed.

JUDGE Comparing Assistant

Page No. 1/4 GAHC010112802023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/1871/2023 MAJID ALI AND ANR. S/O LATE KASEM ALI R/O VILL- KURIHAMARI P.S. SIALMARI, DIST. NALBARI, ASSAM 2: ALKASH ALI @ ALKAS ALI S/O MAJID ALI R/O VILL- KURIHAMARI P.S. SIALMARI DIST. NALBARI ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MS T MANDAL Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY