Page No.# 1/13 GAHC010143222026 2026:GAU-AS:14167 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail (Cancellation)/10/2026 ABUL KALAM SON OF LATE NUR HUSSAIN, RESIDENT OF VILLAGE SUAPATA PT-IV, BILASIPARA, DISTRICT DHUBRI, ASSAM. VERSUS THE STATE OF ASSAM AND 3 ORS. REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM. 2:SUKKUR ALI SON OF LATE NUR HUSSAIN SHEIKH.RESIDENTS OF VILLAGE SUAPATA PT-IV P.O. BILASIPARA P.S. BILASIPARA DISTRICT DHUBRI ASSAM PIN 783348. 3:SABIA KHATUN W/O SUKKUR ALI RESIDENTS OF VILLAGE SUAPATA PT-IV P.O. BILASIPARA P.S. BILASIPARA DISTRICT DHUBRI ASSAM PIN 783348 4:SAJINA BEGUM W/O SAMIYAL HOQUE RESIDENTS OF VILLAGE SUAPATA PT-IV P.O. BILASIPARA P.S. BILASIPARA DISTRICT DHUBRI ASSAM Page No.# 2/13 PIN 783348 Advocate for the Petitioner : MRS. S ROY, Advocate for the Respondent : PP, ASSAM, MR J ISLAM(R2,3,4) BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA ORDER 24-09-2026 Heard Mr. S. Dutta, learned Senior Counsel assisted by Mrs. S. Roy, learned counsel for the petitioner and Mr. K. K. Das, learned Additional Public Prosecutor, Assam for the respondent No.1. Also heard Mr. J. Islam, learned counsel for the respondent/accused Nos. 2, 3 and 4. 2. This is an application filed under Section 483(3) of the BNSS, 2023 seeking cancellation of bail granted to the respondents/accused by order dated 03.07.2026, passed by the learned Sub-Divisional Judicial Magistrate (M), Bilasipara in connection with PRC Case No. 201/2026 arising out of Bilasipara P.S. Case No. 59/2026 corresponding to G.R. Case No. 97/2026 under Sections 61(2)/318(2)/103(2) of the BNS, 2023. 3. It is submitted by Mr. Dutta, learned Senior Counsel that these three respondents/accused earlier approached this Court with a prayer for pre-arrest bail and two of the respondents/accused, namely, Sabia Khatun and Sajina Begum were granted with the privilege of interim pre-arrest bail. But the prayer for interim pre-arrest bail in respect of respondent/accused Sukkur Ali was rejected. But after receipt of the case diary and considering all the materials in the case diary, vis-à-vis the conduct of the respondents/accused, this Court had Page No.# 3/13 rejected their pre-arrest bail application vide its order dated 15.05.2026, passed in AB No. 859/2026. After rejection of the earlier order, the respondents accused again approached this Court with another pre-arrest bail application being AB No. 1412/2026 after filing of the charge sheet, wherein these three respondents/accused were shown as absconder and vide order dated 25.06.2026, this Court had passed an order directing the respondents/accused to surrender before the learned Trial Court with an application for bail and directed the learned Trial Court to consider the same in accordance with law. 4. During investigation sufficient materials were found against all the 6 numbers of accused persons and accordingly, the case is charge sheeted under Section 103(2) of the BNS, 2023 along with other relevant sections of law. Out of 6 numbers of accused persons, three were already arrested and these 3 respondents/accused did not cooperate with the I.O. during the investigation of the case and hence, they were shown as absconder in the charge sheet. On the basis of the direction passed by this Court vide order dated 25.06.2026 all the respondents/accused surrendered before the Court of learned SDJM (M), Bilasipara and the Court had passed the order very mechanically allowing all the 3 respondents/accused to go on bail. 5. Mr. Dutta, learned Senior Counsel further submitted that the learned Magistrate also has the authority to allow the bail application and there is no bar for the Magistrate to consider an application for bail in a case which is exclusively triable by the Court of Sessions. But in that case also the Magistrate may direct the accused persons initially to approach the Court of Sessions for the purpose of getting the relief of bail. 6. However, the Magistrate also can exercise the same power under Section 437 CrPC, but in that case, the Magistrate has to come to a conclusion that no Page No.# 4/13 overt act has been committed by the petitioners or the accused and is to satisfy himself that the accused/petitioner is not guilty of an offence punishable with sentence of death or imprisonment for life. But here in the instant case, while dealing with the bail application, there is no mention that these respondents/accused did not play any role in the commission of the offence and only on some ground of old age and having twin baby, the bail application is considered for the respondents herein. More so, after the direction of surrender of the respondents/accused, the Magistrate or the committal Court did not even send such prayer before the Sessions Judge for consideration and it very mechanically passed the order without being satisfied that the respondents/accused are innocent or they have not committed any such offence punishable with death or life imprisonment. To substantiate his plea, Mr. Dutta, learned Senior Counsel relied on a decision of the Apex Court in the case of Prahlad Singh Bhati Vs. N.C.T. Delhi & Anr., reported in 2001 2 Supreme 550, wherein in para 6 and 7 it has been held as under: “6. Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a court of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code in respect of a person who is, suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negtivate the existence of reasonable ground for believing that such accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case, where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail. 7. Powers of the Magistrate, while dealing with the applications for grant of bail, Page No.# 5/13 are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.” 7. Further it is submitted by Mr. Dutta that the accused/respondents are very influential persons and after being released on bail, they are threatening the witnesses and hence, the hampering or tempering with the evidences of the witnesses also cannot be denied at this stage and thus, they also violated the terms and conditions of the bail. 8. Mr. Dutta, learned Senior Counsel also relied on another decision of the Hon’ble Apex Court in the case of Sheikh Mehmoood Vs. Union Territory of Jammu and Kashmir & Ors. [Criminal Appeal No….of 2026 (arising out of SLP (Criminal) Case No. 19036 of 2025)], wherein in para 32 it has been held as under: “32. In the light of all these factors and viewed in the light of the evidence on record, we are of the prima facie opinion, at least at this stage, that it is not a case of (i) no overt act of homicidal death, (ii) no records being available to link such death with the conspiracy and (iii) no share intention.” 9. He further submitted that after considering all these aspects of the case, the learned Sessions Judge has the authority to pass an order of bail, after committal of the case. But the learned Trial Court/committal Court had passed the order very mechanically without being satisfied that these accused persons are not guilty of the offence to exercise his power under Section 437 CrPC to grant bail to the accused persons. More so, he submitted that from the charge sheet itself it is seen that how these respondents/accused are involved in the Page No.# 6/13 alleged offence and they never cooperated with the I.O. during the entire investigation of this case though they were very well aware about the pendency and the investigation of the case. Thus, Mr. Dutta, learned Senior Counsel submitted that it is a fit case for cancellation of bail at this stage. 10. Mr. Islam, learned counsel appearing for the respondent Nos. 2, 3 and 4 submitted that the bail can be considered for an old ailing person, child and for a woman under the proviso of Section 480 BNSS. In the present case also two of the respondents are female and out of which, one respondent is aged about 62 years old and the other respondent is having twin child of 3 years of age and that apart the other respondent is also an old ailing person, more than 60 years of age. The learned SDJM (M), Bilasipara while passing the bail order had considered all these aspects of the case and accordingly, the bail order was passed considering the nature and status of the respondents. 11. More so, all the respondents are appearing regularly before the Court without violating any terms and conditions of the bail and thus there cannot be any reason for cancellation of the bail which had already been granted to the respondents and they are abiding by all the terms and conditions of the bail. Relying on a judgment of the Apex Court in the case of Himanshu Sharma Vs. State of Madhya Pradesh reported in 2024 0 Supreme (SC) 160, it is submitted by Mr. Islam, learned counsel that the Hon’ble Apex Court had opined that for consideration of grant of bail and cancellation of bail are entirely different and bail granted to the accused only be cancelled, if the Court is satisfied that after being released on bail, (a) accused has misused liberty granted to him; (b) flouted conditions of bail order; (c) that bail was granted in ignorance of statutory provisions restricting powers of Court to grant bail; (d) or that bail was procured by misrepresentation or fraud. Page No.# 7/13 12. Page No.# 7/13 12. But here in the instant case, it is seen that none of the respondents had misused the liberty granted to them, nor they have violated any terms and conditions of the bail order, nor the bail was ever obtained under the misrepresentation of facts to the Court. 13. Mr. Islam, learned counsel accordingly submitted that there is no reason for cancellation of bail wherein all the respondents are abiding by the bail conditions of the Court and regularly appearing before the Court without any default. 14. Further, Mr. Islam, learned counsel submitted that though the respondent Nos. 3 and 4, namely, Sabia Khatun and Sajina Begum respectively, were earlier granted with interim pre-arrest bail, but after granting of the bail they could not get a chance for appearing before the I.O. as the charge sheet was filed within a very short period though they were ready for cooperating with the I.O. in the investigation of the case. 15. So considering all these aspects of the case, the prayer for cancellation of bail for these respondents may be rejected. 16. Mr. Das, learned Addl. PP appearing for the State respondent No.1 submitted that admittedly NBWA against these respondents had to be issued by the learned Trial Court because of their non-appearance. More so, the case has already been charge sheeted considering the prima facie case against them and thus, it cannot be held that the respondent Nos. 2, 3 and 4 are innocent and they have not committed the offence as alleged against them. 17. Mr. Das, learned APP also submitted that this may be a fit case for cancellation of bail. 18. Heard the submissions made by the learned counsel for the parties and I Page No.# 8/13 have also perused the case record and the order passed by the learned Trial Court. 19. From the record it is seen that initially a pre-arrest bail application was moved before this Court by the respondent Nos. 2, 3 and 4 and the interim protection was granted to the respondent Nos. 3 and 4 accordingly, calling for the updated case diary. But on perusal of the case diary and the incriminating materials available against the respondent Nos. 2, 3 and 4, the pre-arrest bail application was rejected and the interim protection granted to the respondent Nos. 3 and 4 were also vacated. Thereafter, the respondents again moved an application seeking pre-arrest bail after filing of the charge sheet and considering the submissions made by the learned counsel for the parties, all the respondents were directed to appear before the learned Trial Court/committal Court and to apply for regular bail with a direction to the learned Trial Court to consider the same in accordance with law. 20. After obtaining the said order, the respondent Nos. 2, 3 and 4 appeared before the learned Trial Court/committal Court and filed an application for regular bail, which was considered and they were accordingly granted bail by the learned Trial Court. 21. It is the case of the petitioner that bail was granted to the respondents very casually without assigning any proper reason as to his satisfaction to grant bail. Further, it is the case of the petitioner that the learned Trial Court did not send the record before the Court of learned Sessions Judge or the Trial Court to consider their bail application or to pray for regular bail by the respondents, nor he had came to any conclusion that no overt act was committed by these respondents to consider their bail application in a case which is exclusively triable by the Court of Sessions, wherein the offence is punishable with death or Page No.# 9/13 life imprisonment. 22. To substantiate the plea as referred above, Mr. Dutta, learned Senior Counsel also cited the decision of the Apex Court. 23. On the other hand, it is the case of the respondents that pursuant to the direction of this Court, all the respondents have appeared before the learned Trial Court/committal Court with a prayer for regular bail and that was accordingly considered by the learned Trial Court. 24. Mr. Islam, learned counsel for the respondent Nos. 2, 3 and 4 also stressed on the provision of Section 480 BNSS wherein the bail can be granted to an applicant, if he is a child, old/sick person and a woman. 25. Here in the instant case, it is an admitted position that the respondent Nos. 3 and 4 are women and one of the respondent has twin child of 3 years of age and the other respondent was an aged lady more than 60 years and the respondent No.2 is also an old ailing person, aged more than 60 years. So these observations were taken into consideration by the learned Trial Court while passing the order of bail. 26. It is an admitted fact that the case is charge sheeted under Section 103(2) of the BNS apart from other relevant sections. It is also reveals from the record that the pre-arrest bail prayer for these respondents was rejected by the Court considering their involvement and incriminating materials in the case diary. Thus, it cannot be said that these respondent are innocent and they did not participate in the said crime or no overt act was committed by these respondents. Rather, there are sufficient incriminating materials against these respondents and considering those materials only the earlier pre-arrest bail application was rejected by the Court. Page No.# 10/13 27. Further, as it is a case of Section 103 BNS, it is exclusively trible by the Court of Sessions and hence, while dealing with such bail application in case of such nature, the Magistrate is to pass the bail order only after assigning the reasons for satisfaction. But here in the instant case, it is seen that the order of bail was passed by the learned Trial Court only considering the fact that the case had already been charge sheeted and hence, custodial interrogation may not be required for the present respondents and that apart, the conduct of the respondent Nos. 3 and 4 is also considered with an explanation as to why they could not participate in the investigation even after obtaining the order of interim pre-arrest bail and that apart, it was considered that out of 3 respondents, two are women and other one is also aged person. So considering all these aspects of the case, the learned Trial Court had passed the order of bail. But as per requirement of law, there is no discussion as to whether, these respondents are innocent and no overt act has been committed by these respondents in the said crime to deal with a bail application which is exclusively triable by the Court of Sessions, more so, as per the observation of the Apex Court referred by the learned counsel for the petitioner, the learned Trial Court/committal Court did not make any endeavour to send the record before the learned Sessions Judge to consider their regular bail application. Thus, it is seen that without assigning any reasonable ground, the learned Trial Court had passed the order. 28. It is a settled law that there is no legal bar for a Magistrate to consider a bail application for grant of bail to a person in a case which is exclusively triable by the Court of Sessions, but while granting bail, the Magistrate is to consider as to whether there is any reasonable ground for believing that the accused is not guilty of the offence punishable with death or with life imprisonment. More so, Page No.# 11/13 as per the observation of the Apex Court in the case of Prahlad Singh Bhati (supra) as referred above, the learned Magistrate has the option to send the person to approach the Court of Sessions for the purpose of granting bail. 29. But here in the instant case, the Magistrate did not make any endeavour to send the accused persons before the Court of Sessions for bail and at the same time, there is no observation made by the learned Magistrate that these respondent Nos. 2, 3 and 4 are totally innocent and did not play any role in the commission of the offence of murder. 30. In the case of Ajwar Vs. Waseem & Anr., reported in 2024 SCC OnLine SC 974, the Apex Court had expressed the view that “it well settled that bail once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the superior Court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a superior Court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order”. 31. In the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr., reported in (2004) 0 Supreme (SC) 310 the Apex Court in para 10 of the said judgment observed as under: “10. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the Page No.# 12/13 accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge; (See Ram Govind Upadhyay Vs. Sudarshan Singh and others (2002 (3) SCC 598) and Puran Vs. Rambilas and another (2001 (6) SCC 338). 32. In another decision of this Court in the case of Munni Effa Vs. State of Arunachal Pradesh reported in 2020 0 Supreme (Gau) 685 the Division Bench also expressed the view that bail can be cancelled under the following two circumstances: “(i) When the accused mis-use the liberty of bail, or there is any other supervening circumstance rendering the liberty of bail non-conducive to fair trial or when some new facts comes to light. (ii) When the order of granting bail suffers from illegality, impropriety or serious infirmity causing mis-carriage of justice for not considering the relevant factors or for taking into account irrelevant factors.” 33. Entertaining a bail application, in a case which is exclusively triable by the Court of Sessions is not a bar for a Magistrate, but while granting bail the satisfaction is to be recorded and at the same time, the Court is to be very cautious while granting bail and in such a case the Court can also direct the petitioners to approach the learned Sessions Judge with a regular application for bail. 34. But as discussed above, the learned Trial Court while granting bail did not consider these aspects of the case and there is no discussion at all as to the role played by these respondents to consider a bail application, which is exclusively Page No.# 13/13 triable by the Court of Sessions and punishable with death or imprisonment for life. 35. Considering the detail discussion made above, this Court is of the opinion that the bail granted to the respondent Nos. 2, 3 and 4 namely, Sukkur Ali, Sabia Khatun and Sajina Begum by the learned Sub-Divisional Judicial Magistrate (M), Bilasipara by its order dated 03.07.2026 is liable to be set aside and quashed and accordingly, the same is hereby set aside and quashed with a direction to the respondent Nos. 2, 3 and 4 to surrender before the learned Trial Court/committal Court and further the learned Trial Court is also hereby asked to commit the case record within a short/reasonable period, preferably before the next date, so that the respondents can approach the learned Sessions Judge/Trial Court with a regular application for bail for consideration. 36. With this above observation and direction, this application stands allowed and disposed of. JUDGE Comparing Assistant