IMPORTANT POINT
Anticipatory bail under Section 438 Cr.P.C. is an extraordinary relief.

ORDER

S.G. Chattopadhyay, J.—Apprehending arrest in Mungiakami PS case No. 20 of 2021 registered for offence punishable under sections 341 and 302 read with section 34 IPC, accused applicant Gagan Debbarma has filed this petition under section 438 Cr.P.C for granting pre arrest bail to him.

2. Factual context of the case is as under:

The officer in charge of Mungiakami police station, Khowai lodged a suo motu complaint at his police station on 20.06.2021 alleging, inter alia, that at 06.25 am on the day he received a telephonic information from police inspector Subhrangshu Bhattacharya of Kalyanpur police station who informed the complainant that one person suspected to be a cattle lifter was detained by the local people at Sovaram Chow Para where presence of police was urgently required. The complainant recorded the information in the general diary of his police station vide MGK PS GD entry No. 7 and with the approval of his higher authority, the complainant along with Sub Inspector Ranjan Biswas rushed to the spot. Having arrived at the spot, complainant found that one Saiful Islam of about 18 years’ of age was lying on the street near Sovaram Chow Para SB school in an alarming condition with several cut wound in his body and the injured was not able to speak anything. Seeing police, the local people who gathered there, left the place. The injured was shifted to Mungiakami primary health centre from where he was referred to GBP hospital. The injured succumbed to his injuries in GBP hospital at Agartala on the same day. Complainant further alleged that from his secret source, he came to know that the deceased along with his associates had stolen cattles from the area during the intervening night between 19.06.2021 and 20.06.2021 and while they were transporting the stolen cattles in vehicle bearing registration No. TR 01AL-1662 (Bolero Pickup Van), they were detained by the local people. When the deceased Saiful Isalm was trying to escape he was detained at Sovaram Chow Para and brutally manhandled by an agitated mob which caused his wounds and he succumbed to his injuries in hospital. The Complainant did not name anyone as accused in his FIR.

3. On the basis of the said FIR, the case was registered and investigation was taken up.

4. During investigation, police recorded the statements of some of the witnesses who witnessed the assault on Saiful Islam and saw his assailants. In the course of investigation, the post mortem examination report of the deceased and other materials were also collected by the investigating officer. On the basis of the incriminating materials collected during investigation, the investigating agency took initiative to arrest the applicant namely, Gagan Debbarma for which he has filed this application under section 438 Cr.P.C seeking protection from arrest and detention.

5. Heard Mr. Kohinoor N. Bhattacharya, learned counsel appearing for the petitioner. Also heard Mr. R. Datta, learned P.P. representing the State respondent.

6. It is contended by the counsel of the applicant that he is totally innocent and he does not have any involvement in the alleged assault of the deceased. Counsel submits that he is a student who has been pursuing his studies in Assam. Counsel also submits that accused Dinu Kumar Debbarma and another accused who were also arrested in connection with this case were released on bail. Therefore, by application of the principle of parity, the present applicant should also be released on bail. Counsel submits that he is not an FIR named accused and no prima facie case of the charge of murder has been made out against him and therefore there is no justifiable reason of his arrest and detention. Relying on the decision of the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC (Cri) 26: (2012) 1 SCC 40 counsel submits that the Hon’ble Apex Court has held that bail is the rule and jail is an exception. Counsel further submits that