Allowed

Mujamil Alom v. the State of Assam and Anr.

Gauhati HC19 Jul 2023AB/1115/2023

Case brief

AI extract

What is this about?

The Gauhati High Court converted interim anticipatory bail granted to the petitioner into absolute bail. The court held that mere filing of the charge-sheet does not automatically terminate interim bail if there is no evidence of misuse of liberty granted to the accused during the interim period.

What did the court decide?

The interim anticipatory bail granted on 27.03.2023 is made absolute, subject to the original conditions.

Mujamil Alom Vs the State of Assam and Anr. — Anticipatory Bail | Gauhati HC (2023)

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Page No.# 1/5

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GAHC010064712023

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

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Case No. : AB/1115/2023

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MUJAMIL ALOM S/OLT. MUKSED ALI VILL- KHUTRADAL, P.S. JAGIROAD, DIST. MORIGAON, ASSAM

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VERSUS

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THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM

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2:NARAYAN DEBNATH S/O LT. SUREENDRA DEBNATH VILL- KHUTRADAL

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P.S. JAGIROAD

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DIST. MORIGAON ASSA

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Advocate for the Petitioner : MR. M U MAHMUD

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Advocate for the Respondent : PP, ASSAM

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Page No.# 2/5

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BEFORE

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HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

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ORDER

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19.07.2023

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1. Heard Mr. M.U. Mahmd, learned counsel for the petitioner, also heard Mr. K. K. Das, learned Additional Public Prosecutor for the State.

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2. This case is fixed for delivery of orders today.

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3. This application under Section 438 of the Code of Criminal Procedure,1973 has been filed by the petitioner, namely, Mujamil Alom, who is apprehending arrest in connection with Jagiroad Police Station Case No. 49/2023,under Sections 376(3) of the Indian Penal Code R/W Sections 6/17/21 of POCSO Act, 2012 and Sections 9/10/11 of the Prohibition of Child Marriage Act.

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4. The accusation in this case is that on 08.02.2023, one- Sri Narayan Debnath, lodged an FIR before the Officer-in-Charge of Jagiroad Police Station, inter alia, alleging that the petitioner had married one minor girl on 15.11.2021. On receipt of the said FIR, Jagiroad Police Station Case No. 49/2023 was registered.

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5. On 27.03.2023, the petitioner, namely, Mujamil Alom was allowed to be released on interim pre-arrest bail in the event of his arrest in connection with Jagiroad Police Station Case No. 49/2023 with certain conditions and case diary was called for in the meanwhile.

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6. Learned counsel for the petitioner submitted that the petitioner in pursuant to the direction of this Court appeared before the Investigating Officer and he was allowed to go on interim bail as per direction of this Court.

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Page No.# 3/5

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7. On the other hand, learned Additional Public Prosecutor submitted that, in the meanwhile, the Investigating Officer had laid the charge-sheet in Jagiroad Police Station Case No. 49/2023 after completion of the investigation.

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8. On 26.06.2023, this Court posed query to learned counsel for the petitioner as well as learned Additional Public Prosecutor as to when interim anticipatory bail has been granted to the petitioner and, if in the meanwhile, when the charge-sheet has been laid, what course of action are available for the Court considering the application for anticipatory bail.

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9. Learned Additional Public Prosecutor citing the Judgment of Hon’ble Supreme Court of India in “ Salauddin “Abdulsamad Shaikh –VsState of Maharashtra” reported in “ (1996) 1 SCC 667” as well as in “ Bharat Chaudhary and Ors. –Vs- State of Bihar and Ors.” reported in “ (2003) 8 SCC 77” submits that though mere filing of the charge-sheet would not put an embargo on the powers of this Court, under Section 438 Cr.P.C. from granting anticipatory bail in appropriate cases, however, the said power is to be exercised taking into consideration gravity of offence and need for custodial interrogation.

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10. Learned Additional Public Prosecutor also submits that mere fact that the protection of interim anticipatory bail has been given to the petitioner at initial stage of the consideration of anticipatory bail application would not in itself mean that the petitioner would be entitled to get an absolute protection under Section 438 Cr.P.C.

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11. Learned Additional Public Prosecutor fairly submits that to make an interim order of anticipatory bail absolute or to cancel the said interim order would depend on the facts and circumstances of the case. He also submits that

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Page No.# 4/5

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in an appropriate case, this Court may also direct the petitioner to surrender before the trial Court and pray for regular bail before the trial court.

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12. On the other hand, learned counsel for the petitioner relying on the Judgments of Hon’ble Supreme Court of India in “ Sushila Aggarwal and Ors. –Vs- State (NCT) of Delhi and Anr.” reported in “ (2020) 5 SCC 1” as well as in “ Dr. Rajesh Pratap Giri -Vs- State of U.P. and Anr. Reported in “ MANU/SCOR/10131/2021” has submitted that the mere fact that an accused is given relief under section 438 at one stage, per se, does not mean that upon filing of the charge-sheet, he is necessarily to surrender and apply for regular bail. It is submitted that an accused who is granted anticipatory bail would continue to be at liberty till the end of the trial unless there are any special or peculiar feature necessitating the Court to limit the tenure of anticipatory bail.

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13. Learned counsel for the petitioner has fairly submitted that in circumstances similar to that of the present case when interim anticipatory bail has been granted to the petitioner and in the meanwhile charge-sheet has been laid, this Court has passed different orders under different circumstances, namely, (a) directing the petitioner to appear before the Court below within a particular period of time and thereafter apply for regular bail, if so advised and till that period the interim protection is given to the petitioner (b) making the interim anticipatory bail absolute with certain conditions and (c) Cancelling the interim bail in appropriate cases.

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14. Learned counsel for the petitioner fairly submits that the discretion of this Court under Section 438 Cr.P.C is wide enough. However, such discretion is to be exercised judicially and mere fact that charge-sheet has been laid, would not put an embargo on the powers of this Court under Section 438 Cr.P.C.

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Page No.# 5/5

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15. Having considered the submissions made by learned counsel for both sides, it appears that, in the instant case, the interim anticipatory bail was granted to the present petitioner by order dated 27.03.2023 and the chargesheet has been laid and no occasion has arisen showing that the present petitioner has misused the liberty granted to him during the continuance of the interim anticipatory bail. The fact that without seeking cancellation of interim anticipatory bail, the Investigating Officer had laid the charge-sheet would itself show that custodial interrogation of the present petitioner was not felt necessary for completion of the investigation of Jagiroad Police Station Case No. 49/2023.

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16. This Court is of considered opinion that though mere grant of interim anticipatory bail would not automatically mean that the said interim anticipatory bail shall have to be made absolute. Same would be dependent on the facts and circumstances of the case. In the instant case, as nothing has been reported regarding any misuse of liberty by the present petitioner during continuance of interim anticipatory bail, rather learned counsel for the petitioner has submitted that the petitioner has cooperated with the Investigating Officer.

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17. In view of above, the interim anticipatory bail granted to the present petitioner by order dated 27.03.2023 is hereby made absolute with condition nos. (i) and (ii) attached to the said interim order remaining intact.

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18. With the above observation, the instant anticipatory bail application is hereby disposed of.

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JUDGE

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Mujamil Alom v. the State of Assam and Anr.

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Mujamil Alom v. the State of Assam and Anr.

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