Ali Akbar v. The State of Assam

ORDER Date : 31-08-2023

¶1Heard Mr. A Choudhury, learned counsel for the applicant and Mr. D Das, learned Addl. PP, Assam.

¶2This anticipatory bail application has been preferred under Page No.# 2/4 Section 438 of Code of Criminal Procedure, 1973, by the present applicant, namely, Ali Akbar praying for grant of pre-arrest bail to the applicant, who is apprehending arrest in connection with Gohpur PS Case No.82/2022 under Section 366 of Indian Penal Code.

¶3It is submitted by the learned counsel for the applicant that during the pendency of the investigation the present applicant could not be traced and he was declared absconder by the police and subsequently the police submitted absconder charge sheet against the accused under sections 366/495 IPC. Therefore, apprehending the arrest the present applicant has approached this Court seeking an order under Section 438 of the Code of Criminal Procedure, 1973.

¶4Learned counsel for the applicant has submitted that merely filing of charge-sheet in itself is not a bar in exercising power of this Court under Section 438 of the Code of Criminal Procedure, 1973 and even after chargesheet is filed, this Court may issue order under Section 438 of the Code of Criminal Procedure, 1973, if it finds that the applicant has reasonable ground to apprehend arrest and in support of the said contention learned counsel has relied on the ruling of Hon'ble Supreme Court of India "Bharat Choudhury and Another VBs. State of Bihar and Another" reported in 2003 8 SSC 78.

¶5Learned counsel for the applicant has also relied on the ruling of Hon'ble Supreme Court of India in Mahdoom Bava Vs. Central Bureau of Investigation (Order dated 20.03.2023 passed in SLP Crl. No. 376/2023) wherein the Hon'ble Supreme Court of India observed that in some parts of the country there seems Page No.# 3/4 to be a practice followed in courts to remand the accused to custody the moment, they appear in response to summons.

¶6Learned counsel for the applicant submits that in the instant case, the charge-sheet has been laid, inter-alia, under Section 307 of the Indian Penal Code, also where the maximum punishment is imprisonment for life for which normally the Committal Court due to embargo of Section 437 clause 1 of the Code of Criminal Procedure, 1973, read with Section 209 (a) & (b) of Code of Criminal Procedure, 1973 remands the accused to custody if he is not on bail and if he appears before the trial Court in response to the summons issued to him.

¶7In view of the above discussion, the instant anticipatory application filed by the present applicant namely, Ali Akbar is hereby disposed of with the observation that the present applicant shall appear before the learned court below within a period of 15 days from the date of this order and if he does so, he shall be allowed to go on bail of Rs. 30,000/- (Rupees Thirty Thousand only) with one surety of like amount to the satisfaction of the learned court below, subject to the conditions:

¶1That the applicant shall appear before the Committal Court and learned Trial Court as and when so directed by the said Courts and shall co-operate in the trial.

¶2The applicant 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 Courts. Page No.# 4/4

¶9With the above observation, this instant anticipatory bail application is hereby disposed of.

JUDGE Comparing Assistant

Page No.# 1/4 GAHC010157062023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/2532/2023 ALI AKBAR S/O LATE ALEP UDDIN SHEIKH R/O VILL- GORAPURI CHAPARI P.O. AND P.S. DHULA DIST. DARRANG, ASSAM PIN NO. 784146 VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. A CHOUDHURY Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY