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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
PARTHIVJYOTI SAIKIA, J.
JAKIR HUSSAIN BARBHUYAIN S/O SAMAR UDDIN BARBHUYAIN – Petitioner
Versus
THE STATE OF ASSAM – Respondent
AB No. 1683 of 2024
Decided On : 16-08-2024
BAIL - PRE-ARREST BAIL - The Court granted pre-arrest bail under Section 438 of the CrPC, emphasizing that the petitioner, despite being related to the accused, did not warrant detention based on the circumstances of the case. The Court considered witness statements but concluded that the petitioner should not be held in custody, allowing for bail with conditions.
Fact of the Case:
The petitioner, Jakir Hussain Barbhuyain, sought pre-arrest bail in connection with a murder case (Joypur P.S. Case No. 12/2024) involving his brother Jiabur Rahman Barbhuyain, who had been arrested for the death of Farida Begum, allegedly due to injuries sustained during a domestic quarrel.
Finding of the Court:
The Court reviewed the case diary and witness statements, which indicated the petitioner had defended his brother during disputes. However, the Court found that these circumstances did not justify pre-arrest detention.
Issues: Whether the petitioner is entitled to anticipatory bail under Section 438 of the CrPC in a case involving serious charges under Section 302 of the IPC.
Ratio Decidendi: The Court held that the nature of the allegations and the petitioner's relationship to the accused did not warrant pre-arrest detention, allowing for bail under the circumstances presented.
Result: The Court granted the petitioner pre-arrest bail, setting a bail amount of Rs. 25,000/- with a surety, and directed him to appear before the Investigating Officer within ten days.
ORDER :
1. Heard Mr. T. Kalita, the learned counsel appearing for the petitioner. Also heard Mr. D .Das, the learned Addl. Public Prosecutor, Assam.
2. This is an application under Section 438 of the CrPC praying for grant of pre-arrest bail in connection with Joypur P.S. Case No. 12/2024, registered under Section 302 of the Indian Penal Code.
3. The present petitioner is the elder brother of a person called Jiabur Rahman Barbhuyain. Both live separately. Jiabur Rahman Barbhuyain often had quarrel with his wife Fatima Begum. On the day of occurrence, Farida Begum was admitted to Silchar Medical College & Hospital after sustaining some injuries. She expired in the Hospital. The news was sent to the father of the deceased who subsequently lodged an FIR before police.
4. Jiabur Rahman Barbhuyain has already been arrested by police. Now, the petitioner apprehends that he might also be arrest by police.
5. I have gone through the case diary.
6. Some witnesses have stated in their statement that the petitioner took the side of his brother and in the quarrel between the deceased and her husband, the petitioner always tried to defend his brother. The witnesses also stated that the petitioner also rebuked the deceased on many occasions.
7. Mr. Das has submitted that it is a case under Section 302 of the Indian Penal Code. Therefore, the privilege of anticipatory bail should not be granted in favour of the petitioner.
8. I have considered the submissions made by Mr. Kalita in the light of the materials available in the case diary.
9. This Court is of the opinion that under the given circumstances of the case, the petitioner does not deserve to be detained in custody. Therefore, his pre-arrest bail application is allowed.
10. It is hereby directed that in the event of arrest in connection with Joypur P.S. Case No. 12/2024, registered under Section 302 of the Indian Penal Code, the petitioner namely Jakir Hussain Barbhuyain shall be released on bail of Rs. 25,000/- with a surety of like amount to the satisfaction of the arresting authority. He is directed to appear before the Investigating Police Officer within next 10(ten) days from today.
11. With the aforesaid direction, the application for bail is disposed of accordingly.
12. Return the case diary.
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 ....
Anticipatory bail can be granted under Section 438 when allegations do not warrant preemptive detention, provided conditions to protect ongoing investigations are set.
The court granted anticipatory bail based on the prosecutrix's voluntary actions, emphasizing the importance of her being a major in the decision.
Pre-arrest bail can be granted keeping in view young age of accused.
The court may grant anticipatory bail considering the compromise arrived at between the parties and the facts and circumstances of the case.
Grant of anticipatory bail under Section 438 Cr.P.C. based on the facts and circumstances of the case and the arguments presented.
Pre-arrest bail may be granted considering the petitioner's youth, character, and willingness to comply with court conditions, even in serious offences.
The Court established that pre-arrest bail can be granted when there is insufficient evidence to support allegations of abetment of suicide.
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