Kshamadhar Kumar and 9 Ors v. The State of Assam

ORDER

29.09.2023 Heard Mr. B.K. Mahajan, learned counsel for the petitioners. Also heard Mr. R.J. Baruah, learned Additional Public Prosecutor, Assam. This application under section 439 of the Code of Criminal Procedure, 1973 has been filed by 10(ten) numbers of petitioners, namely, (1) Kshamadhar Kumar, (2) Sri Janmijay Kalita, (3) Sri Umesh Kalita, (4) Sri Rajani Kumar, (5) Sri Jadu Ram Kalita, (6) Sri Kailash Kalita, (7) Sri Mridul Kalita, (8) Sri Kashyap Kalita, (9) Sri Mantu Kalita and (10) Sri Pallab Kalita, who have been detained behind the bars since 18.08.2023(since last 43 days) in connection with Sipajhar Case No. 296/2023 under Sections 147/148/149/302 of the Indian Penal Code. The gist of accusation in this case is that on 17.08.2023, one Md. Fiznur Ali lodged an FIR before the Officer-In-Charge of Sipajhar Police Station, inter-alia, alleging that his nephew, namely, Majibul Haque, who was working in a company at Guwahati was killed by some villagers of Padmajhar, Tengera, Bagachala under Burha Police Out post after confining him and assaulted him on an alleged complaint of a theft of a goat. On receipt of the said FIR, Sipajhar P.S. Case No. 296/2023 was registered. Mr. B.K. Mahajan, learned counsel for the petitioners has submitted that it is a case where a thief was apprehended by villagers thereafter, he was Page No.# 4/6 assaulted by public as a result of which, the thief succumbed of his injuries. However, learned counsel for the petitioners also submits that though the present petitioners reached the place of occurrence after hearing hue and cry, however, they were not involved in the act of assault on the deceased person. He has also pointed to this Court the endorsement made by the Investigating Officer in the forwarding report addressed to the learned Chief Judicial Magistrate, Darrang on 18.08.2023, wherein, it is mentioned that the local people showed ignorance about the persons who inflicted the injuries on the deceased Majibul Haque. Learned counsel for the petitioners has also submitted that otherwise also, the petitioners have already been detained behind the bars for last 43 days which may be regarded as sufficient period for progress of the investigation. On the other hand, Mr. R.J. Baruah, learned Additional Public Prosecutor, has placed the case diary of Sipajhar P.S. Case No. 296/2023, which was called for in connection with the instant case. He has submitted that there are incriminating materials against the present petitioners and has opposed the grant of bail to the present petitioners. I have considered the rival submissions made by learned counsel for the parties as well as gone through the materials available in the case diary. On perusal of the case diary, it appears that some of the witnesses who claim to be eye-witnesses have stated before the Investigating Officer that the deceased person was assaulted by more than 150 people who gathered there and the present petitioners were seen amongst those 150 people. However, none of the witnesses, whose statements have been recorded, have specificllay mentioned as to which petitioners have inflicted what kind of injury on the deceased. When a person is inflicted injuries by a persons who are members of Page No.# 5/6 a mob atleast their ought to have been some evidence specifically implicating some of the members of the said group as to who have inflicted injuries to the deceased in what manner. Merely by stating that the present petitioners were seen in the group of those 150 people who assaulted inflicted injuries on the deceased would not justify their detention at this stage beyond the period which they have already undergone, i.e. 43 days, which in the considered opinion of this Court may be considered as sufficient period even if their custodial detention would have been required. In view of the materials in the case diary which is available, as of now, this Court is of the considered opinion that further custodial detention of the present petitioners may not be justified for completion of fair investigation of the Sipajhar P.S. Case No. 296/2023. In view of above, the above named petitioners are hereby allowed to go on bail of Rs. 30,000/-each with a suitable surety of like amount to the satisfaction of the learned Chief Judicial Magistrate, Darrang, Mangaldai with following conditions:-

¶1they shall not leave the jurisdiction of learned Chief Judicial Magistrate, Darrang without prior leave from the learned Chief Judicial Magistrate, Darrang and an intimation, thereof, to the Investigating Officer, during the pendency of the investigation of the case;

¶2they shall not directly or indirectly make any inducement, threat or promise to any person who is acquainted with the facts of the case so as to dissuade such persons from disclosing such facts to the Investigating Officer; and

¶3they shall co-operate in the fair completion of the investigation of this case. Page No.# 6/6 With the above observation, this bail application is hereby disposed of. Let the case diary be sent back.

JUDGE Comparing Assistant

PageoNo.#o1/6 GAHC010205982023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oBailoAppln./3248/2023o KSHAMADHARoKUMARoANDo9oORS.o S/OoS/OoLATEoNANDAoRAMoKUMARo R/OoVILL-oPADMAJHARo P.S.oSIPAJHARo DIST.oDARRANG,oASSAM 2:oSRIoJANMIJAYoKALITA oS/OoLATEoCHANDIoRAMoKALITAo R/OoVILL-oPADMAJHARo P.S.oSIPAJHARo DIST.oDARRANG oASSAM 3:oSRIoUMESHoKALITA oS/OoLATEoMANIKoKALITAo R/OoVILL-oTENGERAo P.S.oSIPAJHARo DIST.oDARRANG oASSAM 4:oSRIoRAJANIoKUMAR oS/OoLATEoDADHIoRAMoKUMARo R/OoVILL-oPADMAJHARo P.S.SIPAJHARo DIST.oDARRANG oASSAM 5:oSRIoJADUoRAMoKALITA oS/OoLATEoTHANESWARoKALITAo R/OoVILL-oBAGACHOLAo P.S.oSIPAJHARo DIST.oDARRANG oASSAM Page No.# 2/6 6: SRI KAILASH KALITA S/O LATE HARA KANTA KALITA R/O VILL- PADMAJHAR P.S. SIPAJHAR DIST. DARRANG ASSAM 7: SRI MRIDUL KALITA S/O SRI JANMIJAY KALITA R/O VILL- PADMAJHAR P.S. SIPAJHAR DIST. DARRANG ASSAM 8: SRI KASHYAP KALITA S/O TAPESWAR KALITA R/O VILL- PADMAJHAR P.S.SIPAJHAR DIST. DARRANG ASSAM 9: SRI MANTU KALITA S/O KHEMADHAR KALITA R/O VILL- PACHIM BOGACHOLA P.S. SIPAJHAR DIST. DARRANG ASSAM 10: SRI PALLAB KALITA S/O SRI BIREN KALITA R/O VILL- PADMAJHAR P.S. SIPAJHAR DIST. DARRANG ASSA VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR. A CHAUDHURY Advocate for the Respondent : PP, ASSAM Page No.# 3/6 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA