Dismissed

Boser Ali v. the State of Assam

Gauhati HC19 Sept 2022AB/2725/2022

Case brief

AI extract

What is this about?

The Gauhati High Court rejected an application for pre-arrest bail under Section 438 CrPC filed by Boser Ali. The Bench held that subsequent applications after a rejection on merits require a change in fact or law, which was absent here despite assertions of marriage dissolution.

What did the court decide?

The application for pre-arrest bail under Section 438 CrPC stands rejected.

Boser Ali Vs the State of Assam — Dowry and Cruelty | Gauhati HC (2022)

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Page No.# 1/3

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GAHC010148462022

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

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Case No. : AB/2725/2022

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BOSER ALI

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S/O- LT. SUKUR ALI, VILL- RIVER BLOCK- N.C-5, P.S. FAKIRGANJ, DIST.DHUBRI (ASSAM)

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VERSUS

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THE STATE OF ASSAM REP. BY P.P., ASSAM

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Advocate for the Petitioner : MR. A T SARKAR

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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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19.09.2022

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Heard Mr. A.T. Sarkar, learned counsel for the petitioner and Mr. M.P. Goswami, learned Additional Public Prosecutor, Assam.

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By this application under Section 438, Code of Criminal Procedure, 1973 [CrPC], the petitioner viz. Boser Ali has approached this Court seeking the benefit of pre-arrest bail,

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Page No.# 2/3

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apprehending his arrest, in connection with Fakirganj Police Station Case no. 192/2021 registered under Section 498[A]/313 Indian Penal Code [IPC] read with Section 4 of D.P. Act, for the second occasion after rejection of his earlier bail application, AB 3851/2021 by an order dated 10.12.2021.

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The informant had lodged the First Information Report [FIR] on 03.09.2021 naming the present petitioner as accused no. 1. The accused no. 1 i.e. the petitioner is the husband of the informant. The accused no. 2 and the accused no. 3 are the brothers-in-law of the informant whereas the accused no. 4 is the mother-in-law of the informant. The accused no. 5 is the sister-in-law of the informant and the accused no. 6 is the wife of the accused no. 3. The informant had alleged physical and mental torture upon her by the accused persons on the demand of dowry. While the allegations against the accused no. 2 – 6 were general in nature, the allegations against the petitioner i.e. the husband of the informant were inter alia to the effect that he had physically assaulted her on 01.09.2021 and tried to kill her. Further allegation was to the effect that the pregnancy of the informant was terminated by the petitioner with the assistance of other accused persons.

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When the case diary was produced on the previous occasion, that is 10.12.2021, the materials therein including the statement of the informant recorded under Section 161 CrPC were perused. In the statement, the informant had reiterated the allegations, as had been made in the FIR, against the petitioner. After finding ample incriminating materials in the case diary, the Court was not persuaded to extend the benefit of pre-arrest bail under Section 438, CrPC and hence, rejected the prayer for pre-arrest bail of the petitioner.

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The petitioner has approached this Court by this application by seeking support from an affidavit [Annexure – 2] sworn by the informant on 24.02.2022.

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The learned counsel for the petitioner, by referring to the affidavit, has submitted that the informant had already pronounced Talaque upon the informant in three occasions in presence of witnesses and as a result, the marriage between the petitioner and the informant has been dissolved.

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On perusal of the affidavit [Annexure – 2], it is noticed that the informant in the said affidavit has clearly reiterated about the infliction of torture meted upon her by the petitioner continuously since after their marriage. After such tortures, she was driven out from the house of the petitioner about one year ago and since then, the informant has been residing at her parental house. The informant has further stated in the said affidavit that she has been compelled to cease the marital tie with her husband i.e. the petitioner for the sake of her better future.

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It is settled that after rejection of application for pre-arrest bail under Section 438, CrPC on merits, there is scope to file a subsequent bail application for pre-arrest bail only if there is a change in the fact situation or in law which requires earlier view being interfered with or where the earlier finding has become obsolete. The grounds cited in this second application on behalf of the petitioner do not appear to be of any substance for re-consideration of the earlier order dated 10.12.2021 passed in AB 3851/2021.

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Having gone through the grounds made in the second application this Court finds that this second application is devoid of merit for any reconsideration of the prayer of pre-arrest bail of the petitioner under Section 438, CrPC. Accordingly, the present application with the prayer for pre-arrest bail of the petitioner stands rejected.

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JUDGE

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Comparing Assistant

Boser Ali v. the State of Assam

Case brief

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Boser Ali v. the State of Assam

Case brief

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