Mokles Ali @ Mukleshur Rahman v. The State of Assam

O R D E R

30.08.2023 Heard learned counsel for the parties.

¶2This anticipatory bail application has been preferred under Section Page No.# 2/5 438 of Code of Criminal Procedure, 1973, by the present petitioner, namely, Mokles Ali @ Mukleshur Rahman praying for grant of pre-arrest bail to the petitioner, who are apprehending their arrest in connection with PRC Case No. 1490/2019 arising out of Kharupetia P.S. Case No. 250/2018 under Sections 498 (A)/325/307/34 of Indian Penal Code.

¶3The accusation in this case is that on 02.08.2018, one Rumana Khatun lodged an FIR before the Officer-in-Charge of Kharupetia Police Station, interalia, alleging that the accused persons named in the FIR (total four numbers of accused) had subjected the first informant to cruelty and demanded dowry from her.

¶4It is also stated in the FIR that accused namely, Md. Afsar Ali is the husband to whom she was married about six years prior to lodging of the FIR. It is alleged that the accused persons named in the FIR tried to kill the first informant.

¶5On receipt of the FIR, Kharupetia P.S. Case No. 250/2018 was registered.

¶6It is submitted by the learned counsel for the petitioner that during the pendency of the investigation the present petitioner was allowed to go on bail by police and they co-operated in the investigation. However, after completion of the investigation, charge-sheet was laid against all the four accused persons named in the FIR including the present petitioner under Section 498A/325/307/34 of the IPC.

¶7The Committal Court i.e. the Court of learned SDJM, Darrang he should process against the present petitioner and apprehending his arrest, the present petitioner approached the Court learned Additional Sessions Judge (FTC) Darrang praying of grant of anticipatory bail. Page No.# 3/5

¶8However, the said Court rejected the anticipatory bail and directed the petitioner to appear before the learned Committal Court.

¶9Thereafter, on 06.06.2023, the petitioner, Habej Ali filed an application bearing No. 3659/2023, showing his cause of absence before the learned Committal Court, however, the said application was rejected and learned Committal Court issued warrant of arrest against the petitioner as well as other absentee co-accused including the first petitioner, namely Sahid Ali therefore, apprehending the arrest the present petitioner has approached this Court seeking an order under Section 438 of the Code of Criminal Procedure, 1973.

¶10Learned counsel for the petitioner has submitted that merely filing of charge-sheet is 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 petitioner is apprehending his arrest and in support of the said contention learned counsel has relied of the ruling of Hon'ble Supreme Court of India "Bharat Choudhury and Another Vs. State of Bihar and Another" reported in 2003 8 SSC 78.

¶11Learned counsel for the petitioner 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 part of the country there seems to be a practice followed in courts to remand the accused to custody the moment, they appear in response to summons. Page No.# 4/5

¶12Learned counsel for the petitioner 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 custody if he is not on bail even if he appears before the trial Court in response to the summons issued to them.

¶13Hence, no such circumstances the apprehension raised by the present petitioner appears to be genuine apprehension.

¶14In view of the above discussion, instant anticipatory application filed by the present petitioner namely, Mokles Ali @ Mukleshur Rahman is hereby disposed of with the observation that the present petitioner shall appear before the Court of learned SDJM (S), Darrang, Mangaldoi 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 SDJM (S), Darrang, Mangaldoi, subject to the conditions:

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

¶2The 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 Courts.

¶15With the above observation, this instant anticipatory bail application Page No.# 5/5 is hereby disposed of.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010191102023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/2986/2023 MOKLES ALI @ MUKLESHUR RAHMAN S/O- GOLAP HUSSAIN, R/O- NIZ BARUAJHAR, P.S. KHARUPETIA, DISTRICT- DARRANG, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY LD. P.P. Advocate for the Petitioner : MS. S DEVI Advocate for the Respondent : PP, ASSAM BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY