Page No.# 1/3 GAHC010076332025 2025:GAU-AS:5735 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/865/2025 BIBEK BRAHMA S/O ANANTA BRAHMA R/O VILL SARANGURI PO BALLAMGURI PS BIJNI PIN 783393 DIST CHIRANG ASSAM VERSUS THE STATE OF ASSAM REP BY PP ASSAM Advocate for the Petitioner : MR. R B GOHAIN, MR. B K GOGOI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 09.05.2025 Heard Mr. BK Gogoi, learned counsel for the petitioner. Also heard Mr. B Sarma, learned Additional Public Prosecutor, Assam. 2. The petitioner, namely, Bibek Brahma, has filed this application under section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 with prayer for pre- Page No.# 2/3 arrest bail as he is apprehending arrest in connection with Kokrajhar Police Station Case No. 59/2025 under Section 108 of Bharatiya Nyaya Sanhita, 2023 read with Section 67/67B of the Information Technology Act, 2000. 3. The petitioner was granted interim bail on 11.04.2025. Learned counsel for the petitioner has submitted that no ingredients for abetment to commit suicide have been made out against the petitioner. The FIR unfolds that some obscene photographs were uploaded in the social media which do not make out a case of abetment to commit suicide. 4. Learned Additional Public Prosecutor has raised serious objection stating that the Case Diary reveals that the petitioner has appeared before the Investigating Officer but after obtaining interim bail, the petitioner did not co- operate with the investigation, in violation of the conditions imposed at the time of granting interim bail on 11.04.2025. Thus, the petitioner has violated the bail conditions when he was granted interim bail. It is further submitted that there are indeed sufficient incriminating materials in the case diary and clearly an offence under Section 108 of Bharatiya Nyaya Sanhita, 2023 read with Section 67/67B of the Information Technology Act, 2000 has been made out against the petitioner and he is not entitled to pre-arrest bail. Learned Additional Public Prosecutor has also relied on the decision of the Hon’ble Supreme Court in CBI vs. Anil Sharma reported in (1997) 7 SCC 187 wherein it was held and observed that “the High Court has approached the issue as though it was considering a prayer for granting regular bail after arrest. The leraned Single Judge of the High Court reminded himself of the principle that ‘it is well settled that bail and not jail is a normal rule’ and then observed thus: “Unless exception circumstances are brought to the notice of the Court which may defeat the proper investigation and fair trial, the Court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. In the present case, no such exceptional circumstances have been brought to the notice of this Court which Page No.# 3/3 may defeat proper investigation to decline bail to the applicant.” 8. The above observations are more germane while considering an application for post- arrest bail. The consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. At any rate the learned Single Judge ought not to have side-stepped the apprehension expressed by the CBI (that the respondent would influence the witnesses) as one which can be made against all accused persons in all cases. The apprehension was quite reasonable when considering the high position which the respondent held and in the nature of accusation relating to a period during which he held such office. 9. After bestowing our anxious consideration, including a perusal of the case-diary file, we definitely feel that the High Court has misdirected itself in exercising the discretionary power under Section 438 of the Code by granting a pre-arrest bail order to the respondent. We, therefore, upset the impugned order. The appeal is allowed accordingly. “ 5. I have also scrutinized the case diary and find force in the argument of the learned Additional Public Prosecutor, Assam. It appears that at this juncture the petitioner is not entitled to anticipatory bail. Considering all aspects the petitioner’s prayer for anticipatory bail is rejected at this stage. 6. At this juncture there appears to be no justified ground to extend the privilege of anticipatory bail to the petitioner. Hence, petition stands rejected at this stage. The interim pre-arrest bail granted to the petitioner by order dated 11.04.2025 stands vacated. 7. In terms of the above observation, this Anticipatory Bail application stands disposed of. 8. Send back the Case Diary. JUDGE Comparing Assistant