Dismissed

Md. Makbul Hussain v. the State of Assam

Gauhati HC13 Sept 2022I.A.(Crl.)/83/2022

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed an interlocutory application seeking cancellation of anticipatory bail granted to eight respondents. The court held that without a pending main proceeding, no interlocutory application arises, and unproven allegations of threats do not justify cancellation.

What did the court decide?

Application under Section 439(2) Cr.P.C. for cancellation of bail dismissed as no proceeding is pending.

Md. Makbul Hussain Vs the State of Assam — Bail and Remand | Gauhati HC (2022)

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GAHC010032962022

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

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Case No. : I.A.(Crl.)/83/2022

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MD. MAKBUL HUSSAIN

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S/O-MD. IDRISH ALI, R/O-VILL-BHAGAMUR, P.S.-SAMGURI, DT-NAGAON

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VERSUS

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THE STATE OF ASSAM REPRESENTED BY P.P. OF ASSAM.

2:INNOSH ALI

S/O-LT. ISMAIL

3:MD. MOFIDUL ISLAM

S/O-MATIJUDDIN

4:MAINUDDIN

S/O-KUDDUS ALI

5:JOYNALUDDIN S/O-KUDDUS ALI

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6:MD. KUDDUS ALI S/O-LT. ISMAIL

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7:MUSSTT. HASINA KHATUN

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W/O-MOKIDUL ISLAM

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8:MISS RUKSANA BEGUM

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D/O-INNOSH ALI ALL ARE R/O BHAGAMUR

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P.S-SAMGURI DIST-NAGAON (ASSAM

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Advocate for the Petitioner : MR. ASHIM SHARMA Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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13.09.2022

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Heard Mr. A. Sharma, learned counsel for the applicant. Also heard Ms. S.H. Bora, learned Additional Public Prosecutor appearing for State respondent No.1 and Mr. S. Ahmed, learned counsel appearing for respondent Nos. 2 to 8.

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By this interlocutory application under Section 439(2) Cr.P.C., the applicant has prayed for cancellation of Bail order dated 22.12.2021 passed in BA No. 1125(N)/2021.

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Mr. A. Sharma, learned counsel appearing for the applicant, submits that the instant interlocutory application has been filed after due permission for withdrawal of B.A. No. 1125/2021 with liberty to file afresh praying for cancellation of bail granted by the learned Sessions Judge, Nagaon to the respondents No. 2 to 8 in the above referred B.A. No. 1125(N)/2021 under Sections 294/323 /354/379/511 of the IPC against whom the applicant lodged an F.I.R. on 09.11.2021. Mr. Sharma submits that after the respondents obtained anticipatory bail, they have started threatening the applicant with dire consequences and thereupon, the applicant filed an F.I.R. before the Officer incharge of Samaguri PS, but on advice of police, a petition under Section 107 Cr.P.C. has been filed on 06.01.2022 before the learned Executive Magistrate at Nagaon. Therefore, Mr. Sharma submits that the anticipatory bail granted to the

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respondents No. 2 to 8 may be cancelled.

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Opposing the application Ms. S. H. Borah, learned Additional Public Prosecutor, submits that the order of the learned Sessions Judge, Nagaon granting anticipatory bail to the respondents No. 2 to 8 being well reasoned, based on material on the case diary, the same may not be cancelled merely on some unsubstantiated reasons raised by the applicant.

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Mr. S. Ahmed, learned counsel appearing for the respondents No. 2 to 8 has supported the argument advanced by the learned Additional Public Prosecutor.

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The order, dated 22.12.2021 passed by the learned Sessions Judge, Nagaon in B.A. No. 1125(N)/2021 reads as hereunder:

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“This is an application u/s 438 Cr.P.C., filed by one Innosh Ali, Mofidul Isla, Mainuddin, Joinaluddin, Kuddus Ali, Hasina Khatun & Ruksana Begum in connection with Samaguri P.S. Case No. 493/2021 U/S 294/323/354 /379/511 IPC.

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As per the FIR dated 07.11.2021 it is the allegation against the accused petitioners is that they entered into the land of Jainal Abdin with deadly weapons and on being resisted they assaulted him and his family causing grievous injuries.

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Heard learned counsel for the petitioner and the learned public prosecutor. Also perused the case diary along with medical report.

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Upon hearing the learned counsel for the parties and upon perusal of the case diary as well as medical report this court is of the considered view that custodial interrogation of the petitioners are not required.

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As such, the petitioners are granted the privilege of pre-arrest bail.

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In the event of arrest, it is directed that the petitioners shall be released on bail on execution of bonds of Rs.10,000/- each with one local surety of like

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amount subject to the satisfaction of the arresting authority.

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The petitioners are also directed to appear before the investigating officer within 7(seven) days from today and participate in the investigation by making themselves available as and when required. They are also directed not to temper any evidence and/or influence any witness whatsoever.

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The petition is accordingly allowed and disposed of.

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Send back the case diary.”

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It is well settled that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening compelling circumstances have rendered it no longer conducive to allow the accused to retain his freedom by enjoying concession of bail. In Gulabrao Baburao Deokar vs State of Maharashtra and others reported in (2013) 16 SCC 190, the Hon’ble Supreme Court held that the High Court does have the power under Section 439(2) Cr.P.C. to set aside unjustified, illegal or perverse order granting bail, which is an independent ground for cancellation as against ground of accused misconducting himself.

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A perusal of the aforesaid order, dated 22.12.2021, it appears that while passing the same, the learned Sessions Judge, Nagaon heard the learned counsel of both sides and on being satisfied granted the privilege of pre-arrest bail under Section 438 Cr.P.C. to the respondents No. 2 to 8. There is no adverse report from the investigating officer that they have committed breach of any of the conditions of the aforesaid pre-arrest bail. The only ground raised by the informant/applicant that the respondents No. 2 to 8 have threatened him, after obtaining the privilege of pre-arrest bail without, however, any proof of registration of any police case or any case in the court of learned Executive Magistrate under Section 107 Cr.P.C., is not a sustainable ground for cancellation

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of the pre-arrest bail.

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It is needless to be pointed out that the applicant has preferred the instant interlocutory application, when his main application being B.A. No.1125/2021 was withdrawn with liberty to file afresh vide order, dated 15.07.2021. However, no fresh application is filed, and as such, no corresponding proceeding is pending to give rise to the instant interlocutory application. It may further be stated that ‘interlocutory’, in law means, not that which decides the cause, but that which only settles some intervening matter relating to the cause arising in the progress of the said cause or proceeding. To speak it differently, ‘interlocutory’ means intermediate, that is what is purely interim or temporary in nature. Hence, from this perspective too, when there is no main proceeding pending, this cannot give rise to any interlocutory application.

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For the above stated reasons, the instant interlocutory application stands dismissed and accordingly disposed off.

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JUDGE

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Comparing Assistant

Md. Makbul Hussain v. the State of Assam

Case brief

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Md. Makbul Hussain v. the State of Assam

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