Page No.# 1/7 GAHC010181812026 2026:GAU-AS:12886 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2478/2026 JAHANGIR HUSSAIN AND ANR S/O YAKUB ALI ALIAS ABDUL HUSSAIN, R/O VILL KHAGENHAT, PS FALAKATA, DIST ALIPURDUAR, WEST BENGAL 2: MANNAN ALI S/O BAHALUDDIN MIA R/O VILL DHULAGAON PS FALAKATA DIST ALIPURDUAR WEST BENGA VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. A R SIKDAR, MR. Z H BORA,J A SIKDAR,MR. S I TALUKDAR Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA O R D E R Date : 07.09.2026. Page No.# 2/7 Heard Mr. A.R. Sikdar, learned counsel for the accused/petitioners. Also heard Mr. R.R. Kaushik, learned Addl. P.P., Assam appearing for the respondent State. This bail application under Section 483 of BNSS, 2023 is preferred for the third time, praying for grant of bail to the accused/petitioners, namely, Jahangir Hussain and Mannan Ali, who have been arrested in connection with Bilasipara P.S. Case No. 96/2022, under Sections 365/302/201 of the Indian Penal Code, corresponding to Sessions Case No. 53/2023, which is pending in the Court of learned Sessions Judge, Bilasipara. The scanned copy of the case record along with the case diary has already been received and perused the same. It is submitted by Mr. Sikdar, the learned counsel for the accused/petitioners that the present two petitioners are no way connected with the alleged offence and they are originally residents of West Bengal and hence, the question of absconding of the petitioners to West Bengal does not arise. However, one petitioner got married in the Dhubri District of Assam and at the relevant time of the incident also, they were residing in West Bengal being the residents of said State. Mr. Sikdar, the learned counsel further submitted that in the first bail application, the bail prayer of the accused petitioners were rejected only on the ground that two vital prosecution witnesses were to be examined by the prosecution, which are essential for disposal of the case. But thereafter the learned Trial Court below had already examined those witnesses but nothing is revealed from those witnesses and there is no material to connect the present petitioners with the allegation of murder. However, thereafter another bail application was filed by the petitioners and in that case, it was observed that Page No.# 3/7 there was a history of absconding and the petitioners belonged to another State and hence, the probability of absconding cannot be denied and on that ground only the petition was rejected with a direction to the learned Sessions Judge to complete the trial preferably within six months. Thereafter, the learned Sessions Judge had already examined 8 numbers of witnesses and as per the instruction, only the I.O. is left to be examined by the prosecution. Mr. Sikdar further submitted that there is no material in the evidence of the prosecution witnesses to convict the accused petitioners and thus, the chance of conviction of the accused petitioners is very bleak and remote, even if the proceeding is further continued. Mr. Sikdar further submitted that the accused petitioners are more than three years in the custody and hence, considering their long incarceration, they may be released on bail, which otherwise violates their fundamental rights under Article 21 of the Constitution of India. More so, both the accused petitioners are permanent residents of West Bengal and they are ready to furnish sufficient surety to the satisfaction of the learned Trial Court, if they are granted with the privilege of bail. Mr. Sikdar, the learned counsel further submitted that the under trials cannot indefinitely be detained pending trial and if the timely trial is not possible and the accused suffered long incarceration for a significant period of time, the Court should grant bail to a person. In support of his submission, Mr. Sikdar, the learned counsel for the accused petitioners relied upon the decision of the Hon’ble Apex Court in the Case of Union of India vs. K.A. Najeeb reported in (2021) 3 SCC 713 and basically relied in para 15 of the said decision, which reads as under:- “15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to Page No.# 4/7 justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India12, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail”. Mr. Kaushik, the learned Addl. P.P., Assam appearing on behalf of State respondent raised vehement objection and submitted that this is the third bail application filed on behalf of these two accused petitioners, whose earlier two bail applications were rejected by the Court, considering all the materials in the case record as well as the submission of both the parties. He further submitted that it is a fact that initially the bail application was rejected and it was considered that two vital witnesses were to be examined and after examination of those two witnesses, the second bail application was filed but considering the nature of offence alleged to have been committed by the accused petitioners vis-à-vis their history of absconding of the accused petitioners, who were arrested in West Bengal with the help of West Bengal Police, with that observation, the second bail petition was rejected. However, the learned Sessions Judge was directed to dispose of the Trial, preferably within six months and complying to that order, the learned Sessions Judge already examined 8 numbers of witnesses including one of the I.O., remaining only one witness to be examined. Thus the case is at the feg end of trial and if the accused petitioners are released on bail, there may be delay in disposal of this case, as the probability of absconding also cannot be denied. That apart, from the evidence of the PW.8, it reveals that the accused petitioners had earlier criminal antecedents and they are wanted in many other cases in the State of West Bengal. Considering all these aspects, Mr. Kaushik, Page No.# 5/7 the learned Addl. P.P., Assam submitted that this is not a fit case to allow the accused petitioners to go on bail at this stage. Mr. Kaushik further submitted that in the case of Gulfisha Fatima vs. State (Govt. of NCT of Delhi) arising out of SLP (CRL.) No. 13988/2025, the Apex Court considering the case of Union of India vs. K.A. Najeeb (Supra) has held that it is to be understood as a principled safeguard against unconscionable detention. The Court should consider whether the continued detention has become Constitutionally unjustifiable and the sole ground of prolonged incarceration not necessarily affect the Constitutional right of a person under Article 21 of the Constitution. Mr. Kaushik, the learned Addl. P.P., Assam basically relied on para 51, 52 & 53 of the said judgment, which read as under:- “51. There is a further constitutional aspect that warrants articulation. Article 21 protects individual liberty. It also, within the same guarantee of life, reflects the State’s obligation to protect the life and security of the community. In prosecutions alleging threats to public order and national security, the Court cannot be unmindful that both dimensions are engaged. The constitutional order is not served by an approach that treats liberty as the sole value and societal security as peripheral. Both must be accommodated through reasoned adjudication. 52. The consequence of the above is that Najeeb(supra) must be understood as a principled safeguard against unconscionable detention. Prolonged incarceration is a matter of serious constitutional concern and carries great weight. It is not, however, the sole determinant. The Court must consider, in totality, whether continued detention has become constitutionally unjustifiable, having regard to the role attributed, the statutory context, the limited prima facie material, the trajectory of the trial, the causes of delay, and the availability of intermediate remedies. 53. This approach does not dilute Article 21. It gives Article 21 structured content in a field where the Constitution itself recognises competing interests. Nor does it render Section 43D(5) absolute. It recognises that statutory restraint must yield in an appropriate case where detention becomes punitive by reason of unreasonable and unjustified delay. What it excludes is a mechanical override based on time alone, divorced from legal context”. Hearing the submissions of learned counsel for both sides, I have also perused the scanned copy of the case record as well as the earlier bail order passed in connection with the present accused petitioners. Page No.# 6/7 It is a fact that both the accused petitioners are behind the bar for a considerable period i.e. for more than three years but considering the nature of allegation and the way the alleged offence was alleged to have been committed by these accused persons, the bail petitions were rejected by this Court earlier, in two occasions. However, in the first occasion, there was an observation of this Court that examination of two vital witnesses was necessary and accordingly the Trial Court was directed to record those two vital witnesses of the prosecution. After examination of those two witnesses, the accused petitioners moved another bail application i.e. the second bail application wherein they basically took the plea that those two vital witnesses have already been examined by the Court, hence their bail may be considered. However, considering the submissions made by the learned Addl. P.P., Assam, materials on record and the evidence of some of the prosecution witnesses, it was observed that the accused persons not only alleged to have committed the offence but after commission of the offence, they fled away from the place of occurrence and absconded immediately after the offence but somehow, they were arrested in the State of West Bengal with the help of the West Bengal Police. So considering the past history of absconding, the subsequent bail application was also rejected by this Court with a direction to complete the trial within a reasonable period and preferable within six (6) months. From the record, it reveals that complying with the direction of this Court, the learned Sessions Judge had took all necessary efforts for completion of the trial and to that effect, eight witnesses out of nine listed prosecution witnesses have already been examined including one of the I.O. who is examined as PW.8. However, only one witness is left to be examined by the prosecution. Thus, the Page No.# 7/7 case is also seems to be at the fag end of the trial. There is no new and urgent ground for consideration of the present bail prayer which was earlier rejected on two occasions by this Court. So considering all these aspects of the case, this Court is of the opinion that there is no unnecessary delay in the trial of the case and in the same time, the learned Trial Court below also took all necessary steps for the speedy trial and hence, only considering the period of incarceration, the bail for the present two petitioners cannot be granted at this stage. With the above observation, the present bail application stands rejected. JUDGE Comparing Assistant