Babul Hussain @ Babul Ali v. The State of Assam

ORDER Date : 24.07.2023 Heard Mr. S. C. Biswas, learned counsel for the petitioner. Also heard Ms. S. H. Bora, learned Additional Public Prosecutor for the State. This bail application has been preferred under Section 439 of Code of Criminal Procedure, 1973, praying for bail of petitioner, namely, Babul Hussain @ Babul Ali who has been detained behind the bar since 22.02.2023 (since last Page No.# 2/5 152 days) in connection with Sorbhog P. S. Case No. 32/2023 corresponding to PRC Case No. 1419/2023 under section 147/326/302/436/427 of the IPC. The accusation in this case is that on 15.02.2023 Nureja Khatun lodged an FIR before the Officer In-charge of Sorbhog Police Station, inter-alia, stating that on 14.02.2023 at about 7.00 am 12 number of accused persons, named in the FIR, including the present petitioner have assaulted the petitioner and her family members and set the house of the mother in law of the petitioner on fire. It is also stated in the FIR that due to assault, the mother in law of the petitioner succumbed to her injuries. On receipt of the said FIR Sorbhog P. S. Case No. 32/2023 was registered and the present petitioner was arrested on 22.02.2023. Learned counsel for the petitioner submitted that the present petitioner was arrested on 22.02.2023 and the Investigating Officer of Sorbhog P. S. Case No. 32/2023 has submitted a part charge-sheet. The Investigating Officer submitted a part charge-sheet on 16.05.2023 only to prevent the present petitioner to get the benefit of statutory bail under section 167 (2) of the Code of Criminal Procedure, 1973. Learned counsel for the petitioner submits that the petitioner is entitled to get default bail under section 167 Clause 2 of the Code of Criminal Procedure, 1973 as it has been clarified by the Hon'ble Supreme Court in "Ritu Chhabaria vs. Union of India and othrs" reported in "2023 SCC online 502" wherein Hon'ble Supreme Court has observed that without completing the investigation of a case a charge-sheet or prosecution complaint cannot be filed by investigating agency only to deprive the accused of his right to default bail under section 167 (2) of the Code of Criminal Procedure, 1973. Hon'ble Supreme Court has also observed such that a charge-sheet, if filed Page No.# 3/5 by the investigation agency without first completing the investigation, would not extinguish the right to default bail under section 167 (2) of the Code of Criminal Procedure, 1973. Learned counsel for the petitioner has submitted that as in the instant case it is apparent from the perusal of the charge-sheet laid by the Investigation Officer that the same is a part charge-sheet and the investigating officer has categorically stated that final charge-sheet will be submitted only after collection of FSL report, MVI report and injury report.

On the other hand, learned Additional Public Prosecutor submit that there are incriminating material against the present petitioner and she opposes the grant of bail to the present petitioner on that ground. I have heard considered the submission made by the learned counsel for the petitioner as well as learned Additional Public Prosecutor. I have also perused the materials placed before me by the learned Additional Public Prosecutor including the scanned copy o he LCR of PRC Case No. 1419 /2023 as well as the charge sheet No. 40/2023 dated 16.05.2023 filed by the Investigating Officer in the instant case. It appears from the record that the present petitioner was arrested on

22.02.2023 and the Investigating Officer has laid charge-sheet on 16.05.2023 and it has been categorically stated in the charge-sheet that the said charge-sheet is a part charge-sheet and final charge-sheet would be laid only after collection of FSL report, MVI report and injury report. It appears till now that the final charge sheet has not been laid by the Investigating Officer. The law in this regard has been clarified by Hon'ble Supreme Court in Ritu Chhabaria vs. Union of India and othrs (Supra) wherein it has been stated that without completing the investigation of a case, Page No.# 4/5 a charge-sheet or prosecution complaint cannot be filed by investigating agency only to deprive the accused of his right to default bail under section 167 (2) of the Code of Criminal Procedure, 1973. In the instant case also it appears that the part charge-sheet has been laid only to ensure that the present petitioner remains behind the bar even after completion of the statutory period of the detention which is not mandated by law. Under the facts and circumstances of present case this court is of the considered opinion that as the final charge sheet has not been laid and as the charge-sheet No. 40/2023 dated 16.05.2023 has been laid in part only same would not deprive the present petitioner to get the benefit of statutory bail under section 167 (2) of the Code of Criminal Procedure, 1973. In view of the above, the petitioner, namely, Babul Hussain @ Babul Ali is allowed to go on bail on furnishing of bail bond of Rs. 30,000/- (Rupees Thirty Thousand only) with one surety of like amount to the satisfaction of the learned Additional Chief Judicial Magistrate, Barpeta with the condition that :

¶1That the petitioner shall appears before the learned committal court as well as learned trial court .

¶2That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case, so as to dissuade him or her from disclosing such facts to the Court.

Page No.# 5/5 With the above observations, this bail application is accordingly disposed of.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010150282023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2380/2023 BABUL HUSSAIN @ BABUL ALI S/O- LATE KACHA UDDIN @ KACHAR UDDIN SHEIKH, R/O- VILLAGE- KALBARI, P.S. SORBHOG, DISTRICT- BARPETA, ASSAM, PIN- 781317 VERSUS THE STATE OF ASSAM. REP. BY P.P., ASSAM Advocate for the Petitioner : MR. S C BISWAS Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA