Jiyarul Islam and Anr v. The State of Assam and Anr

ORDER Date : 15.07.2024

Heard Mr. M. U. Mahmud, learned counsel for the petitioners. Also heard Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent.

¶2This is an application under Section 439 of the Code of Criminal Procedure praying for grant of bail to the accused/petitioners, who have been arrested in connection with Sorbhog P.S. Case No. 38/2024, under Sections 365/392 of the Indian Penal Code and the Charge-Sheet No. 42/2024 filed in connection with aforesaid P.S. Case read with Section 412 of the Indian Penal Code.

¶3Scanned copy of the case record, along with the Case Diary, has been received. Perused the same. Heard both sides.

¶4It is submitted by Mr. Mahmud, learned counsel for the petitioners, that the present accused/petitioners are innocent and they are no way connected in the alleged offence. They only came to know about the incident after their arrest along with other accused persons on 27.03.2024. They also preferred a bail application before this Court and vide Order dated 13.05.2024, in Bail Appln. No. 1288/2024, both the accused/petitioners were directed to appear before the learned Court below with an appropriate application for bail as the case was already Charge-Sheet against the accused/petitioners. In pursuant to the said direction of this Court, they have already preferred an application Page No.# 3/7 before the learned Additional Chief Judicial Magistrate, Barpeta, but their bail petition was rejected by the learned Court below with an observation that the case was Charge-Sheeted under Sections 365/392 of the Indian Penal Code, which are serious in nature. Further he submitted that as the accused persons are within the jurisdiction of Court, there is no chance of absconding and hence, the subsequent bail application has to be preferred before this Court by both the accused/petitioners. It is further submitted by the learned counsel for the petitioner that both the accused/petitioners are the permanent resident of their addressed locality and there is no chance of absconding, rather they will appear before the learned Trial Court below on each and every date to be fixed by the Court.

¶5He further submitted that the filing of the Charge-Sheet cannot be a valid ground for rejection of the bail prayer, rather the Court should consider the bail application after filing of the Charge-Sheet as investigation is already completed. He further submitted that while dealing with such a petition, the Court is to consider firstly that the investigation is completed, the custody of the accused is no longer required for investigation and secondly, trial when commenced may take time to complete and hence, it would cause injustice to the accused to keep him in jail for several years if subsequently the accused is found to be innocent. After the thorough investigation of this case, the I.O. has already filed the Charge-Sheet and hence, there is no chance of hampering or tampering of the evidences and there is also no chance of absconding of the accused/petitioner and they are the permanent resident of their addressed locality. In this regard, the learned counsel for the petitioner also relied on a decision of Apex Court passed in Serious Fraud Investigation Office Vs. Page No.# 4/7 Nitting Johari [(2019) 5 SCC 266] and submitted that once investigation is over and a Charge-Sheet has been filed, the nature of allegation may not be a factor to decide if bail is to be granted and instead, in such cases the Court must consider whether the applicant has been co-operating in the investigation and whether there is a possibility that the applicant may abscond or tamper with the evidence and mere apprehension of tampering and or absconding is not enough to deny bail.

¶6Mr. Mahmud, learned counsel for the petitioner, further submitted that it is a settled position of law that the bail can also be granted even after filing of the Charge-Sheet and in that context, he also relied on a decision of Apex Court passed in the case of Sanjay Chandra Vs. C.B.I. [(2012) 1 SCC 40], wherein it has been held that custodial detention of a person may not be necessary for further investigation once the Charge-Sheet has been filed.

¶7In this context, Mr. Sharma, learned Additional Public Prosecutor, has submitted that there are sufficient incriminating materials against the present accused/petitioners and on the basis of which, the Charge-Sheet has already been filed and the Court also took cognizance against the present accused/ petitioners under Section 412 of the Indian Penal Code which is serious nature of offence and as per the punishment prescribed under the said Section, it may extend to 10 (ten) years along with fine and it may also extend to imprisonment for life and from the Sections and the cognizance taken by the learned Court below, it appears that they are the habitual offenders and hence, the probability of absconding as well as the hampering or tampering with the witnesses cannot be out rightly denied at this stage. Further he submitted that it is not a case Page No.# 5/7 that there is a long delay in filing the Charge-Sheet, rather the Charge-Sheet is filed within the stipulated period and thus, there is probability of disposal of the matter within a short period. Mr. Sharma, learned Additional Public Prosecutor, accordingly raised objection and submitted that it is not at all a fit case wherein the accused/ petitioners can be released on bail at this stage.

¶8After considering the submissions made by the learned counsels for both sides, I have also perused the scanned copy of the case record, wherefrom it is seen that during the investigation, the I.O. has collected sufficient materials against the present accused/petitioners showing their involvement in the alleged offence and accordingly, the Charge-Sheet was filed against them. It is an admitted fact that the accused/petitioners are behind the bar since 27.03.2024, however it is seen that the Charge-Sheet was filed within the stipulated period. It is also a fact that the Charge-Sheet is filed by the I.O. after completion of the investigation. But, considering the nature of allegation alleged against the accused/ petitioners, it cannot be denied that there is a probability of hampering or tampering with the witnesses and in the same time, the probability of absconding also cannot be denied.

¶9The Supreme Court in the case of Kalayan Chandra Satkar Vs. Rajesh Ranjan Alias Pappu Yadav & Anr. [(2005) 2 SCC 42] has expressed the view that the accused cannot be granted with bail solely on the ground that the accused had undergone incarceration for a period of three years and there was no likelihood of the trial being concluded in the near future. It was further held that the sole ground of delay in conclusion of the trial without taking into consideration the allegation made by the prosecution in regard to the existence Page No.# 6/7 of prima facie case, gravity of the offence and the allegation of tampering with the witnesses by threat and inducement when on bail. In the case of Rajesh Ranjan [(2004) 7 SCC 528], the Supreme Court has held that mere fact that the accused has undergone certain period of incarceration by itself would not entitle the accused to be enlarged on bail nor the fact that the trial is not likely to be concluded in the near future, either by itself or coupled with the period of incarceration would be sufficient for enlarging the accused on bail. It is also held that while considering the bail application, the Court must consider the nature of acquisition, the severity of the punishment in case of conviction, the nature of supporting evidence, reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge.

¶10Further, in the case of Pramod Kumar Saxena vs. Union of India & Anr., the Supreme Court has held that mere long period of incarceration in jail would not be per se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution. In the case of Prahlad Singh Bhati Vs. NCT, Delhi reported in (2001) 4 SCC 280, the Supreme Court has culled out the principles, which the courts has to consider at the time of granting or refusing bail as under;- "The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has Page No.# 7/7 also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted , at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

¶11In the instant case, it is seen that prima facie there is a case against the accused/petitioners and thus, considering the nature and gravity of the offence, it is the opinion of the Court that it is not a fit case to enlarge the accused/petitioners on bail only considering the period of incarceration and hence, the same stands rejected.

¶12In terms of above, this bail application stands disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010124592024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oBailoAppln./1851/2024o JIYARULoISLAMoANDoANRo S/OoLATEoMISTERoALIo R/OoVILL-oPATILADOHAoBAZARo P.O.oPATILADAHAo P.S.oMANIKPURo DIST.oBONGAIGAON,oASSAMo PINoCODE-o783391 2:oEYASINoMULLAH oS/OoISMAILoMOLLAHo R/OoVILL-oNO.o2oDHUPURIo P.O.oPATILADAHAo P.S.oMANIKPURo DIST.oBONGAIGAON oASSAMo PIN-78339o VERSUSo THEoSTATEoOFoASSAMoANDoANR.o REPoBYoTHEoPP,oASSAM AdvocateoforotheoPetitionerooooo:oMR.oMoUoMAHMUDo AdvocateoforotheoRespondento:oPP,oASSAMoo ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooo Page No.# 2/7 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA