Dismissed

Mehbub Rahman Barbhuiya @ Bappi Barbhuiya v. the State of Assam

Gauhati HC4 Mar 2022AB/161/2022

Case brief

AI extract

What is this about?

The Gauhati High Court rejected a second bail application filed under Section 438 CrPC for pre-arrest bail. The court held that no change in fact or law warranted reconsideration of the earlier order dismissing the prayer amidst evidence implicating the petitioner in homicide.

What did the court decide?

Application for pre-arrest bail under Section 438 CrPC was rejected; prayer stands declined.

Mehbub Rahman Barbhuiya @ Bappi Barbhuiya Vs… — Murder and Culpable Homicide | Gauhati HC (2022)

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GAHC010009782022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : AB/161/2022

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MEHBUB RAHMAN BARBHUIYA @ BAPPI BARBHUIYA SON OF LATE SAFIQUR RAHMAN BARBHUIYA, R/O SUNABARIGHAT PART-I, P.O. SONABARIGHAT, P.S. SILCHAR (SADAR), DIST. CACHAR, ASSAM, PIN-788013

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VERSUS

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THE STATE OF ASSAM REP. BY THE PP, ASSAM

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Advocate for the Petitioner : MR. D DAS SR. ADV

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Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 04-03-2022

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Heard Mr. D. Das, learned Senior Counsel assisted by Mr. K. Mohammed, learned counsel for the petitioner and Mr. B. Sharma, learned Additional Public Prosecutor for the respondent State of Assam.

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By this application under Section 438, Code of Criminal Procedure, 1973 [CrPC], the petitioner viz. Mehbub Rahman Barbhuiya @ Bappi Barbhuiya has approached this Court seeking the benefit of pre-arrest bail, apprehending his arrest, in connection with Silchar Police Station Case No. 3238/2021 registered for offences punishable under Sections

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147/302/427, Indian Penal Code [IPC] for the second occasion after rejection of his earlier bail application, AB no. 3171/2021 by an order dated 26.10.2021, after perusal of the materials available in the case diary, produced on that day.

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The relevant excerpts from the order dated 26.10.2021 are hereinbelow :-

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“3. In the First Information Report (FIR) lodged on 25.09.2021, the informant has mentioned that his elder brother, Jasim Uddin Majumdar @ Bulbul Majumdar has a shop. He has, inter-alia, alleged that having heard that the petitioner along with 20/25 persons was demolishing his shop and the mobile tower attached to the shop at around 05-30 a.m. on 25.09.2021, Jasim Uddin Majumdar @ Bulbul Majumdar rushed to the place of occurrence. At the place of occurrence, his elder brother, Jasim Uddin Majumdar @ Bulbul Majumdar was assaulted by the petitioner with the assistance of those persons with him. Having received the information, the informant along with his three relatives and one tenant reached the place of occurrence and found Jasim Uddin Majumdar @ Bulbul Majumdar in a seriously injured condition. The informant and others recovered the injured from the clutches of the accused persons. The injured informed the informant and others that the petitioner assaulted him on his chest. As the physical condition of Jasim Uddin Majumdar @ Bulbul Majumdar was found critical, he was immediately taken to the Silchar Medical College and Hospital (SMCH) but the Doctor at the SMCH declared Jasim Uddin Majumdar @ Bulbul Majumdar as brought dead.

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Mr. Choudhury, learned Senior Counsel for the petitioner has submitted that the family of the petitioner and the family of the informant has a long standing land dispute. The family of the informant had taken a shop located in the plot of land belonging to the mother of the petitioner on rent long back. When request was made to vacate the shop, the family of the informant refused to do the same initially. Later on, the shop was vacated at the intervention of the people of the locality. The family of the informant had thereafter, tried to occupy the land belonging to the petitioner’s family and in that connection, the mother of the petitioner had to initiate proceedings under Sections 145/146, CrPC and she also lodged a complaint before the Superintendent of police, Cachar. It has been asserted by the learned Senior Counsel that the elder

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brother of the informant was a heart patient and he died due to natural cause, not due to any injury inflicted by any person, not to speak of the petitioner, as alleged in the FIR.

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Learned Additional Public Prosecutor has produced the case diary. He has, on the basis of the materials available in the case diary, submitted that there are sufficient incriminating materials in the case diary, which go to implicate the petitioner. He has submitted that the incident had occurred at around 05-30 a.m. on 25.09.2021 and there were eye witnesses who had implicated the petitioner for assaulting the deceased. 6. I have considered the submissions of the learned counsel for the parties and have also perused the materials available in the case diary, collected during the course of investigation carried out so far. The post-mortem examination report is available in the case diary. As per the post-mortem examination report, the examination was carried out on 25.09.2021 itself. As per the post-mortem examination report, the death was caused due to coma resulting from the injuries sustained in the head. All injuries were ante-mortem in nature and caused by blunt trauma. It was opined that approximate time since death was 06-12 hours. Evidently, the death of the accused was a homicidal death.

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The statements of a number of witnesses are available in the case diary. There is an eye witness who has stated to have seen the petitioner assaulting the deceased with blows and fists. Another witness has stated to have seen the petitioner and few other persons in front of the shop of the deceased. He has also stated that he saw the deceased arriving there and a heated altercation taking place thereafter, between the petitioner and the deceased.

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In view of such incriminating materials available in the case diary against the petitioner, this Court is of the view that this is not a fit case to extend the privilege of pre-arrest bail to the petitioner under Section 438, CrPC and accordingly, the prayer for pre-arrest bail to the petitioner in connection with Silchar Police Station Case No. 3238/2021 is declined. Consequently, the bail application stands dismissed.”

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Mr. Das, learned Senior Counsel has submitted that subsequent to rejection of the earlier bail application, AB no. 3171/2021, the petitioner had applied before the State Public Information Officer, Silchar Medical College & Hospital [SMCH], Silchar under the Right to

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Information Act, 2005 for information as regards the entries made in the SMCH regarding the treatment given to the deceased, Jasim Uddin Majumdar @ Bulbul Majumdar. In response to his RTI application dated 27.02.2021, the Public Information Officer of the SMCH provided the information by his reply dated 03.01.2022. As per the reply, there was no record found in the MLC Register Book, Non-MLC Register Book and SOPD Register Book of the Department of Surgery, SMCH relating to Jasim Uddin Majumdar @ Bulbul Majumdar on 25.09.2021 [‘MLC’ stands for Medico-Legal Cases]. In view of such reply, there is a doubt as regards the version projected by the informant in the FIR dated 25.09.2021. He has submitted that the petitioner has also filed an application before the concerned Superintendent of Police, Cachar seeking re-investigation into the matter.

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Mr. Sharma, learned Additional Public Prosecutor has produced the case diary. It is his submission that there is no necessity to reconsider the prayer as the materials in the case diary go to show the complicity of the petitioner in the death of the deceased disentitling him to seek the benefit of pre-arrest bail and there is need to interrogate the petitioner in custody.

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I have considered the submissions of the learned counsel for the parties and have also perused the materials available in the case diary.

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It is noticed that the post-mortem examination was performed on 25.09.2021. The post-mortem examination report had been prepared under the signatures and seals of the Demonstrator, Department of Forensic Laboratory Medicine, SMCH and the Professor & Head, Department of Forensic Medicine, SMCH. In the post-mortem examination report, it is reported that it was performed pursuant to receipt of a requisition from the Sub-Inspector of Police, Ranghirkhari Town Out-Post under Silchar Police Station. It is further reported that the inquest document, provided by police, had revealed that the inquest was done by an Executive Magistrate. The dead body challan was also signed by a Sub-Inspector of Police, Ranghirkhari Town Out-Post under Silchar Police Station. The inquest report done under Section 176, CrPC is also available in the case diary. It is noticed from the inquest report that the inquest on the dead body of Jasim Uddin Majumdar @ Bulbul Majumdar was done by an

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Executive Magistrate on 25.09.2021 in presence of a number of witnesses.

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I have also again gone through the statements of the witnesses recorded under Section 161, CrPC, which are available in the case diary. The versions of the witnesses have already been recorded in the previous order dated 26.10.2021 [supra] and as such, the same need no reiteration.

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After rejection of an application for pre-arrest bail under Section 438, CrPC earlier, there is scope to file a subsequent bail application for pre-arrest bail if there is change in the fact situation or in law, which requires the earlier view being interfered with or where the earlier finding has to be reconsidered in view of subsequent events.

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Having gone through the materials in the case diary, produced by the learned Additional Public Prosecutor today, this Court is of the considered view that the view taken by this Court earlier needs no reconsideration. Consequently, this application preferred for the second time for pre-arrest bail is found bereft of merit and accordingly, the same is rejected.

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JUDGE

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Comparing Assistant

Mehbub Rahman Barbhuiya @ Bappi Barbhuiya v. the State of Assam

Case brief

What is this about?

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Mehbub Rahman Barbhuiya @ Bappi Barbhuiya v. the State of Assam

Case brief

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What did the court decide?

What the court decided

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