Page No.# 1/7 GAHC010048212025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./672/2025 BISHNURAM BODO S/O LATE BABWA BODO, R/O VILLAGE PANJURI KACHARI GAON, P.O. AND PS. DOKMOKA, DISTRICT KARBI ANGLONG, ASSAM, PIN 782481 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M SARANIA, MR A SARANIA,N GOGOI,MR. P P GOGOI Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 08.05.2025 1. Heard learned counsel Mr. M. Sarania for the petitioner Bishnuram Bodo who has filed this application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 with prayer for bail as he is behind bars since 10.06.2018 in Sessions Case No. 53(T-1)/2018 arising out of GR No. 590/2018 in connection Page No.# 2/7 with Dokmoka Police Case No. 33/2018 under Sections 302/341/427/143/144/147/149/109/332/186 of the IPC. 2. Heard Mr. B. Sharma, learned Additional Public Prosecutor, Assam. 3. It is submitted on behalf of the petitioner that the petitioner has filed this application as per Annexure- 2 of the petition arising out of NALSA Special Campaign for old prisoners and terminally ill prisoners as on 10.12.2024 which shall continue up to 10.03.2025 for the purpose of releasing old prisoners above 70 years and terminally ill prisoners from the jail. This petitioner was identified by the DLSA, Nagaon, as it falls under the category of old prisoners. It is submitted that the petitioner is 75 years old and the petitioner is entitled to bail as per the NALSA Campaign. 4. It is further submitted that as per elector photo identity card issued on 01.10.2016, the petitioner was 64 years old at the time of the issuance of the elector photo identity card which suggests that the petitioner is more than 70 years of age at present. The elector photo identity card is marked as Annexure-3 of the petition which reveals that the petitioner is 72 years old at present. 5. It is further submitted that all the witnesses have been examined so far and this case is fixed for statement defense and argument which will take a considerable amount of time curtailing the petitioner's right to liberty. This case was fast tracked but the learned Trial Court has procrastinated this case and the petitioner is entitled to bail. It is further submitted that the witnesses have become hostile and there is every possibility that the petitioner will be acquitted from the charges. The other witnesses who have deposed against him are seizure witnesses relating to seizure of a bamboo pole. 6. The petitioner has relied on the decision of the Hon'ble Supreme Court in Page No.# 3/7 Gudikanti Narasimhulu and Ors Vs. Public Prosecutor, High Court of Andhra Pradesh reported in 1978 1 SCC 240, wherein it has been held that:- “Bail or jail?" at the pre-trial or post-conviction stage to the blurred area of the criminal justice system and largely hinges on belongs the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental. suffering lawful eclipse only in terms of 'procedure established by law'. The last four words of Article 21 are the life of that human right.” 7. Further, the petitioner has relied on the decision of the Hon'ble Supreme Court in Sanjay Chandra Vs. CBI reported in 2012 1 SCC 40, wherein it has been observed that:- “In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The a offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications Page No.# 4/7 but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice.” 8. The petitioner has also relied on the decision of the Hon'ble Supreme Court in Prasanta Kumar Sarkar Vs. Ashis Chatterjee and Anr reported in 2010 14 SCC 496, wherein it has been held and observed that:- “We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. “ 9. I have considered the submissions at the Bar with circumspection. The ratio of the decision of the Hon'ble Supreme Court in the cases of Gudikanti Narasimhulu (Supra), Sanjay Chandra (Supra) and Prasanta Kumar Sarkar Page No.# 5/7 (Supra), is not applicable to this case. 10. Sanjay Chandra's case was relating to economic offence in connection with 2G spectrum case. This case is indeed a case where the nature and gravity of the accusation has to be taken into consideration. Two victims in this case were lynched to death by a mob. The petitioner is the prime accused in this case. The evidence of this case are not discussed as this case is at the fag end of the trial. 11. The merits of the case are not considered at this juncture. The nature and gravity of this case and severity of the punishment in the event of conviction is fathomable. The danger of the accused absconding or fleeing if released on bail is imminent. It appears that trial may be adversely effected if the petitioner is enlarged on bail. 12. I have also relied on the decision of the Hon'ble Supreme Court in 'X' Vs. The State of Rajasthan and Anr, wherein vide order dated 27.11.2024 in connection with SLP Criminal No. 13378/2024, it has been observed that:- “14. Ordinarily in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court be it the Trial Court or the High Court should be loath in entertaining the bail application of the accused. 15. Over a period of time, we have noticed two things. i.e.. (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim 16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the Page No.# 6/7 victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that right of the accused to have a speedy trial has been infringed. “ 13. Learned Additional Public Prosecutor has also relied on the aforementioned decision of the Hon'ble Supreme Court. Learned Additional Public Prosecutor has raised serious objection stating that the petitioner was 65 years old at the time of the incident i.e., much below 75 years of age. Moreover, there are incriminating materials against the petitioner. Although, most of the witnesses who have incriminated the petitioner have turned hostile yet there evidence cannot be washed off from the face of the record. It is trite law that evidence of hostile witness can also be considered while prosecuting an accused. 14. I find force in the submission of the learned Additional Public Prosecutor. I have also scrutinized the Trial Court Records and Case Diary and also the evidence of the witnesses. Prosecution evidence has already been concluded and this case is pending for recording the statements of the accused. 15. It is true that 47 persons are facing trial in this case and recording of statements of 47 accused persons may take some time. Evidence of 71 witnesses have already been recorded. However, in the wake of the foregoing discussions and relying on the decision of the Hon'ble Supreme Court in SLP Criminal No. 13378/2024, this Court is hesitant to grant bail to the petitioner at this stage. 16. Hence, petition stands rejected at this stage. 17. However, the petitioner is at liberty to subsequently apply for bail if there is procrastination on conclusion of trial. Page No.# 7/7 JUDGE Comparing Assistant