Rukiya Khatun and Anr v. The State of Assam

ORDER Date : 30.06.2023 1) Heard Mr. B.C. Das, learned Senior counsel assisted by Mr. M.U. Mondal, learned counsel for the petitioner, also heard Mr. R.J. Boruah, learned Additional Public Prosecutor appearing for the state of Assam. 2) This case is fixed for delivery of orders today. 3) This is an application 439 of the Code of Criminal Procedure, 1973 filed by the applicants, namely, Rukiya Khatun and Sahanur Hussain who have been detained behind the bars, since 31.05.23, in connection with Bilasipara P.S. Case No. 210/2023 under Section 120B/302/201/109 of the Indian Penal Code. 4) The facts relevant for consideration of the instant bail application, in brief, are as follows: - a) That, on 31/5/2023, one Manash Jyoti Saikia, SI of Police of Bilasipara Police Station lodged an FIR before Officer-in-Charge of Bilasipara Police Station, inter alia, alleging that one Shajahan Ali, who is involved in connection with Bilasipara P.S. Case No. 206/2023 u/s 457/302 of the Indian Penal Code read with Section 27 of the Arms Act,1959, relating to murder of one Basher Ali, has been absconding and during investigation of said case, it was found that the present petitioners have abetted and have conspired with the main accused to commit murder of Basher Ali. It was also alleged that the present Page No.# 3/7 petitioners have harbored the main accused in some secret place. On receipt of the said FIR, Bilasipara P.S. Case No. 210/2023 u/s 120B/302/201/109 of the Indian Penal Code read was registered and one Ishan Jyoti Saikia, SI of Police was entrusted with the investigation of the said case. b) That, Prior to lodging of the aforesaid FIR, one another FIR was lodged, on 25/05/2023, at about 7.30 pm, by one Padmapani Borah, SI of Police of Bilasipara Police Station before the Officer-in-Charge of Bilasipara Police Station, inter alia, alleging that on that day, at about 02.11 AM, a telephonic information was received informing that some unknown miscreants have shot down one Basher Ali of Bilasipara Ward No-8. On receipt of the said information, the first informant accompanied by the Officer-in-Charge of Bilasipara Police Station proceeded to the place of occurrence of offence and found that one person was lying on his bed with shot wound on his head. During search of the place of occurrence, one empty cartridge and a screw of the broken door hook was also recovered. On receipt of the said FIR, Bilasipara P.S. Case No. 206/2023 u/s 457/302 of the Indian Penal Code read with Section 27 of the Arms Act,1959 was registered and one Dewan Rahizuddin Ahmed, SI of Police was entrusted with the investigation of the said case.

c) Thereafter, on 26/05/2023, another written 'ejahar' was Page No.# 4/7 lodged by one Jinnat Ali, who is the brother of the deceased Basher Ali, before Officer-in-Charge of Bilasipara Police Station, in connection with the killing of Basher Ali, wherein one Shajahan and six other persons were named as accused. The present petitioners were not named in the said 'ejahar'. The Officer-in-Charge of Bilasipara Police Station received the said 'ejahar' by making Bilasipara Police Station GD Entry No 827 dated 27/5/2023, however, no separate case was registered. 5) Mr. B.C. Das, learned senior counsel for the petitioners has submitted that the present petitioners were illegally detained since 4:30 AM on 25/05/2023, that is, even before lodging of the FIR on 25/05/2023 at 7:30 PM and in this regard brother of the petitioner No.1 had also approached this Court by filing a Habeus Corpus petition which was registered as W.P(Crl.) 20/2023. It is also submitted by learned Senior Counsel for the petitioners that by order dated 09/06/2023 a division bench of this Court directed to investigate the case by an officer not below the rank of Additional Superintendent of Police of any neighboring district of Dhubri. Learned Senior Counsel for the petitioner has also submitted that the present petitioners are innocent and the husband of the petitioner No.1 is also falsely implicated in this case only for the reason that he had business dealings with the deceased. It is also submitted that though the present petitioners were detained since early morning of 25/5/2023, they are shown to be arrested on 31/05/2023 in Bilasipara P.S. Case No. 210/2023 u/s 120B/302/201/109 of the Indian Penal Code only to justify the illegal detention of the present petitioners by the police. It is also submitted that the petitioner No.1 is the housewife and petitioner No.2 is a cultivator and Page No.# 5/7 in no way involved in the alleged offence and they were made scapegoats only to cover up the illegality committed by police. Learned Senior counsel for the petitioners has submitted that the petitioners shall abide by any condition imposed on them while on bail and that they will co-operate in the fair investigation of the case. 6) Mr. R.J. Baruah, learned Additional Public Prosecutor representing the State, has submitted that the Court of Learned Sub-Divisional Judicial Magistrate(M), Bilasipara has allowed amalgamation of Bilasipara P.S. Case No. 206/2023 and Bilasipara P.S. Case No. 210/2023 as both the cases emanate from same incident. It is also submitted that the investigation of the same has been entrusted to Smt. Geetanjali Doley, Additional Superintendent of Police, CID, Assam. Learned Additional Public Prosecutor as also placed before this court, in sealed envelope, an up-to-date status report of the investigation submitted by the Additional Superintendent of Police, CID, Assam. Learned Additional Public Prosecutor has also produced the case diaries of Bilasipara P.S. Case No. 206/2023 as well as Bilasipara P.S. Case No. 210/2023. 7) Mr. R.J. Baruah, learned Additional Public Prosecutor opposed the prayer for bail of the present petitioners on the ground that the offence involved in this case is heinous as well as pre planned and there are incriminating materials against the petitioner in the case diary. 8) I have considered the submissions made by learned counsel for both sides. I have perused the case diaries of Bilasipara P.S. Case No. 206/2023 as well as Bilasipara P.S. Case No. 210/2023. I have also perused the up-to-date status report of the investigation submitted, in sealed envelope, by the Additional Superintendent of Police, CID, Assam. Page No.# 6/7 9) At this stage, where the only question before this court is only as to whether to grant bail to the present petitioners or not, I'm refraining myself from a detailed discussion of the materials available in the case diary, as much as same may affect a fair investigation of the case. However, the materials in the case diary, at this stage, does not justify custodial detention of petitioner No.2 Sahanur Hussain as no material, worth its salt, is available against him in the case diary. 10) As regards petitioner No.1 Rukiya Khatun is concerned, the Investigating Officer has already interrogated her and has recorded her statement under section 161 Cr.P.C. The petitioner No.1 has been detained behind the bars since more than 30 days. Materials in the case diary, which I am refraining myself from discussing here, does not justify her further custodial detention for the conduct of a fair investigation of the case, if she co-operates with Investigating Officer. 11) For the reasons stated in foregoing paragraphs the present petitioners, namely, namely, Rukiya Khatun and Sahanur Hussain are allowed to be released on bail of Rs.30,000/-(Rupees thirty Thousand) only with one sureties of like amount to the satisfaction of the learned Sub-Divisional Judicial Magistrate(M), Bilasipara, subject to the following conditions:-

(a) That the petitioner shall co-operate with the Investigating Officer in fair completion of the investigation of Bilasipara P.S. Case No. 206/2023 as well as Bilasipara P.S. Case No. 210/2023

(b) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the Page No.# 7/7 facts of the case so as to dissuade him from disclosing such facts to the Investigating Officer or to the Court

(c) That, within seven days of getting released on bail, both the petitioners shall appear before the Investigating Officer, i.e., the Additional Superintendent of Police, CID, Assam thereafter, as and when called upon to do so by the Investigating Officer and shall co-operate in fair completion of investigation of the case. 12) Send back the case diary of Bilasipara P.S. Case No. 206/2023 as well as Bilasipara P.S. Case No. 210/2023. The up-to-date status report in the sealed envelope shall also be returned back to the Investigating Officer of the case. 13) This Bail application is accordingly disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010129482023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:ooBailoAppln./2105/2023 RUKIYAoKHATUNoANDoANR W/OoSHAHJAHANoALIo R/OoKADAMTALAoPT.IIo P.O.oANDoP.S.oBILASIPARAo DIST.oDHUBRI oASSAMo oPIN-783348 2:oSAHANURoHUSSAIN S/OoAKBARoALIo R/OoKADAMTALAoPT.IIo P.O.oANDoP.S.oBILASIPARAo DIST.oDHUBRI oASSAMo PIN-783348 oVERSUS THEoSTATEoOFoASSAM REP.oBYoTHEoPP oASSAM o------------ oAdvocateoforo:oMR.oMoUoMONDAL Advocateoforo:oPP oASSAMoappearingoforoTHEoSTATEoOFoASSAM oooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA