Page No.# 1/6 GAHC010066362025 2025:GAU-AS:7436 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./977/2025 MAINUL HOQUE AND ANR SON OF IDRISH ALI, PERMANENT ADDRESS- RESIDENT OF VILL.- CHATIAN,P.S. JURIA, DIST.- NAGAON, ASSAM, PRESENT ADDRESS- R/O VILL, - RUPAHI BHAKAT GAON PS - RUPAHIHAT, DIST. NAGAON, ASSAM 2: IDRISH ALI SON OF LATE AMIR UDDIN RESIDENT OF VILLAGE - CHATIAN P.S. JURIA DIST. NAGAON ASSA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. R C DAS, A JUBARIA,MR. H RAHMAN,MR S HUSSAIN Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK ORDER 06-06-2025 Heard Mr. R. C. Das, learned counsel for the petitioners and Mr. B. Sharma, learned Additional Public Prosecutor, Assam. Page No.# 2/6 2. The petitioners, namely, (1) Mainul Hoque, son of Idrish Ali and (2) Idrish Ali, son of late Amir Uddin, both resident of Village-Chatian, Police Station-Juria, District Nagaon, Assam have filed this application under Section 483 BNSS, 2023 on 25.03.2025 praying for their bail in PRC Case No. 817/2024 under Sections 120(B)/302 IPC, arising out of Nagaon Police Station Case No. 374/2012, corresponding to GR No. 779/2012, in which, they were arrested on 04.03.2025 and are in custody since then. 3. It is stated that the petitioner No.1 is a teacher by profession. 4. Perused the records of PRC Case No. 817/2024 that was called for. 5. As per the FIR dated 18.03.2012, lodged by one Musstt. Banesa Khatun before the Haiborgaon Police Outpost, the case is that on the previous night around 12:00 AM when her son Sofiqul Islam was sleeping in the house of Rehena Khatun at Simoluguri along with his wife and children and the informant herself, the petitioner No.1 and petitioner No.2 came to the said house and called him outside and when he went out, the petitioner Nos. 1 and 2 took him away from the said house under light and along with other accused persons surrounded him and killed him by attacking him with dao, sword, dagger and further, the petitioner No.1 shot at him. As the informant along with other family members made hue and cry, the petitioner No.1 shot in the open air and threatened them. The said FIR was initially registered as Haiborgaon Traffic Outpost G. D. Entry No. 525 dated 18.03.2012 and on being forwarded to the Nagaon Police Station, the same was registered as Nagaon P.S. Case No. 374/2012 under Sections 120(B)/302 IPC, read with Section 27 of the Arms Act. 6. It is stated that after completion of the investigation, Charge Sheet in said Nagaon P.S. Case No. 374/2012 was submitted on 31.12.2023 vide C.S. No. 1073/2023 under Sections 120(B)/302 IPC against the petitioner No.1, showing the petitioner No.2 and four other accused persons as absconder. 7. It is submitted by the petitioners that though initially the case was registered Page No.# 3/6 under Section 27 of the Arms Act, but, after completion of investigation of the case Charge Sheet against the petitioners and other accused persons of the case was filed under Sections 120(B)/302 IPC. 8. Mr. Das, learned counsel for the petitioners relied on the decision of the Hon’ble Supreme Court in the case of Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari vs. State of Uttar Pradesh in Criminal Appeal No. 2790/2024, decided on 18.07.2024, wherein the Hon’ble Supreme Court have held that – “23.1. After referring to various other decisions, this Court further observed as follows: 19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. 20. We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be. 21. We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution.” 9. The Hon’ble Supreme Court in the case of Sheikh Javed Iqbal (supra) further held that- “32. This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-under trial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence.” Page No.# 4/6 10. As the petitioners surrendered before the Court of learned CJM, Nagaon 04.03.2025 and they were taken into custody on 04.03.2025 itself, it is submitted that they should be considered for their bail on the ground that they are entitled for speedy trial and that the trial of the case have not yet commenced, though Charge Sheet in said Nagaon P.S. Case No. 374/2012 was submitted on 31.12.2023. 11. The incident occurred on the intervening night of 17.03.2012 and 18.03.2012. 12. Son of the informant expired due to physical assault on him by sword, dao and other sharp weapons and on being hacked by the accused persons of the case on his head, shoulder, neck and back. 13. Post mortem report of the deceased dated 18.03.2012 indicates that the death of the deceased was caused due to shock and hemorrhage, as a result of head injury and other grievous injuries on the person of the deceased described in the said post mortem report. 14. Petitioner No.1 claimed that he is a teacher. 15. It is seen that the petitioner No.1, Mainul Hoque, earlier approached this Court immediately after the incident in AB No. 1523/2012, praying for his pre-arrest bail in said Nagaon P.S. Case No. 374/2012. A Co-ordinate Bench of this Court on perusal of the case diary by order dated 16.05.2012 rejected the pre-arrest bail application of the petitioner clearly observing that said AB No. 1523/2012, preferred by the petitioner No.1 is not a fit case to grant the privilege of pre-arrest bail to him. However, on the prayer of the petitioner No.1, the said Co-ordinate Bench granted 30 days time to him to surrender before the learned CJM, Nagaon in said Nagaon P.S. Case No. 374/2012 with further observation that on the surrender of the petitioner No.1, he may make appropriate application for his bail before the learned CJM, Nagaon and the same may be considered in accordance with law. During the period of said 30 days from 16.05.2012, it was specified in said AB No. 1523/2012 that in the event of arrest of the petitioner No.1 in said Nagaon P.S. Case No. 374/2012, he shall be enlarged on Page No.# 5/6 bail on furnishing bail bond of Rs.30,000/- with one local surety of the like amount to the satisfaction of the arresting authority. 16. After filing of the Charge Sheet in said Nagaon P.S. Case No. 374/2012, the petitioner preferred another pre-arrest bail application in said Nagaon P.S. Case No. 374/2012 being AB No. 3312/2024 and this Court found that as per the order dated 16.05.2012, passed earlier in AB No. 1523/2012, the petitioner No.1 was directed to surrender before the learned CJM, Nagaon within 30 days from the date of said order dated 16.05.2012 in said Nagaon P.S. Case No. 374/2012 and then to approach the said Court for bail, but the petitioner No.1 did not comply with the said order dated 16.05.2012. Rather, obtained bail by appearing before the concerned Investigating Officer of said Nagaon P.S. Case No. 374/2012. 17. The Court by order dated 16.05.2012, passed in AB No. 1523/2012 and subsequently by order dated 06.01.2025, passed in AB No. 3312/2024 rejected the pre-arrest bail application of the petitioner No.1 in said Nagaon P.S. Case No. 374/2012, which has already been registered as PRC Case No. 817/2024 after filing of the Charge Sheet on 31.12.2023, directing the petitioner No.1 to appear before the learned CJM, Nagaon in said PRC Case No. 817/2024. 18. Pursuant to the same, the petitioner No.1 along with his father, petitioner No.2, who was absconding since the date of the incident and evaded arrest during investigation of said Nagaon P.S. Case No. 374/2012, together appeared before the learned CJM, Nagaon on 04.03.2025 and surrendered before the said Court. However, their prayer for bail in said PRC Case No. 817/2024 was rejected by the learned CJM, Nagaon on perusal of the case record. 19. From the order of the learned CJM, Nagaon, passed in said PRC Case No. 817/2024 dated 04.03.2025, it can be seen that other accused persons of the case are yet to appear before the learned CJM, Nagaon in said PRC Case arising out of Nagaon P.S. Case No. 374/2012 under Section 120(B)/302 IPC. Page No.# 6/6 20. It is only on appearance of the petitioners and other accused persons of the case the learned CJM, Nagaon will be able to commit the case to the Court of learned Sessions Judge, Nagaon for adjudication of Nagaon P.S. Case No. 374/2012, as Section 302 IPC is exclusively triable by the Court of Sessions until the case is not filed against the other accused persons of the case for their non appearance. 21. On perusal of the records of the case, it is seen that though fresh summons have been issued to the other accused persons of the case, they are yet to appear in the case. 22. Considering the surrender of the petitioners pursuant to the order of Court dated 16.05.2012, passed in AB No. 1523/2012 and subsequent order dated 06.01.2025, passed in AB No. 3312/2024 and they being in custody since 04.03.2025, it cannot be said that there is inordinate delay, violating the right of the petitioners under Article 21 of the Constitution of India for speedy trial of the said case. 23. Accordingly, this bail application of the petitioners, namely (1) Mainul Hoque, son of Idrish Ali and (2) Idrish Ali, son of late Amir Uddin in said PRC Case No. 817/2024 arising out of Nagaon Police Station Case No. 374/2012, corresponding to GR No. 779/2012, considering their detention in custody since 04.03.2025 stands rejected. JUDGE Comparing Assistant