The main legal point established in the judgment is that the presence of incriminating materials, such as eyewitness statements and post-mortem examination report, can influence the court's decision in declining pre-arrest bail under Section 438, CrPC.

JUDGMENT :

1. 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.

2. 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 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.

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

'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.

4. 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 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.

5. 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