Page No.# 1/7 GAHC010261322025 2026:GAU-AS:4092 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3835/2025 MOKDAM ALI S/O LT. SHED ALI R/O VILL- MORABAS, P.S. AND DIST. BARPETA, ASSAM-781308. VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. B D KONWAR SR. ADV., H BAISHYA,MR P DOLEY,MR J SINGH,MR H AGARWAL,MRS J M KONWAR,MS S JAIN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 20.03.2026 1. Heard learned Senior Counsel, Mr. B. D. Konwar for the petitioner, Mokdam Ali, who has filed this application under section 483 of the BNSS, 2023 with prayer for bail in connection with Sessions Case No. 209/2022 arising out of Barpeta P.S. Case No. 338/2022 under Sections 341/302/34/120B of the Indian Page No.# 2/7 Penal Code (IPC for short). 2. It is submitted on behalf of the petitioner that charge-sheet has been laid against seven accused persons and the prime accused are already on bail except the petitioner and another accused. The petitioner has thus prayed for bail on the ground of parity. 3. It is further submitted that the petitioner went up to the Supreme Court and it was directed by the Supreme Court to consider the bail petition after examination of all the key witnesses. All the witnesses have already been examined. The I.O. is yet to be examined. On the date fixed for evidence, the I.O. did not turn up. Now, on account of election duty, the I.O. is busy. The petitioner's right to personal liberty will be infringed as this case will remain pending only for the appearance of the I.O. as an witness. 4. It is not plausible that the I.O. would be able to appear before the Trial Court before the Assembly Elections are over. Moreover, the I.O. is not the prime witness. The key witness is the star witness. The star witness is the sister of the deceased who has already been examined. 5. It is submitted that the petitioner was a decorated Army officer with an unblemished career and he has earned several medals and accolades to his credit, whereas on the contrary, the deceased had a chequered career and she had 16 criminal cases pending against her. The interested witnesses are the ones who have named the petitioner due to long-standing personal disputes between the petitioner and the family members of the deceased. Dispute is relating to land which is not denied and this is the reason why the petitioner has been roped in, in connection with a false case. It is submitted that the family members of the deceased have been nursing a grudge against the Page No.# 3/7 petitioner. 6. It is further submitted that there is nothing to influence the Investigating Officer (I.O. for short) as the witnesses who were vulnerable and prone to influence have already been examined, cross-examined and discharged. The I.O. is an official witness and he would never be influenced. Thus, this Court can easily grant bail to the petitioner who may be given a liberty to prepare his defence against inimical witnesses. 7. In connection with Mokdam Ali and Anr vs. The State of Assam and Anr in SLP No. 7819/2024, the Supreme Court vide order dated 10.12.2024, had observed that the petitioners are at liberty to apply for fresh bail after examination of the key witnesses including the seizure witnesses. 8. It is now submitted that at this stage, the petitioner will not be able to influence the I.O. Further custodial detention is not necessary. It is further submitted that on the day of the incident, the petitioner was in the hospital and there is nothing in the CDR or other digital evidence to support the claim that the petitioner was at the place of occurrence. It is further submitted that during this ongoing Ramzan month, the petitioner prays for bail as his mother is not keeping well. He is the sole breadwinner of the family and he has to look after his three sisters. 9. It is further submitted that the evidence is misleading and it has been falsely stated that he was holding the neck of the deceased. The investigation was conducted in a perfunctory manner and the clothes of the deceased were not sent for forensic examination. The I.O. also did not seize the CCTV footage to show the time when the petitioner left the hospital. The petitioner will be highly prejudiced as it appears that trial will not conclude immediately and will Page No.# 4/7 take atleast 6 months to conclude. It is further submitted that even after the incident, the petitioner was in his house with his wife and he can prepare his defence and produce his alibi. It is further submitted that the I.O. is at present posted at Barpeta and the petitioner will therefore be unable to influence the I.O. 10. The learned counsel has prayed to consider the conduct of the petitioner who immediately surrendered after his bail was rejected by the Honourable Supreme Court. It is further submitted that the petitioner is willing to abide by any stringent bail conditions if imposed upon him. The dao was recovered from a river after 9 days and therefore any forensic evidence may not be found on the weapon of offence. More so, when 6 motorcycles were seized, whereas in this case at the time of the incident, six motorcycles were not used. 11. The I.O. did not even collect the blood samples of the victim and the dao was found downstream 3 kms away. Scientifically up to nine days, some traces of blood may have been present on the dao. No independent witnesses were examined during seizure of the dao. The seizure witnesses are SDRF employees who helped in tracing the dao. It is further submitted that the petitioner is entitled to a fair trial as he is an Army officer who offered his dedicated services to the nation. 12. The learned Additional Public Prosecutor, Mr. K. Baishya laid stress in his argument that the chronology of bail order is relevant. The rejection order of the Supreme Court clearly reveals that bail may be considered only after examination of all the key witnesses. 13. It cannot be ignored that the I.O. is a key witness. A direction from the Hon’ble Supreme Court has to be complied with. Aggrieved by the bail order Page No.# 5/7 dated 29.06.2022, passed by the learned Sessions Judge, Barpeta, in Crl. (Misc.) Case No. 403/2022, the informant approached this Court and this Court vide order dated 20.05.2024 in I.A. (Crl.) Case No. 435/2022, granted bail to the present petitioner. Against the order of this court, the petitioner went to the Supreme Court and vide order dated 10.12.2024, the petitioner's Special Leave Appeal Criminal No. 7819/2024, was dismissed, according a liberty to the petitioner to apply for fresh bail after examination of the key witnesses including the seizure witnesses. 14. The petitioner then approached this Court for bail and vide order dated 24.04.2025 in Bail Application No. 716/2025, the petitioner's prayer for bail was rejected. Against this order, the petitioner preferred a Special Leave Petition registered as SLP (Crl.) No. 6637/2025 and vide order dated 16.07.2025, the SLP was dismissed. 15. So stating, the learned Additional Public Prosecutor laid stress in his argument that at this juncture, the petitioner does not have the caveat to apply for bail after examination of key witnesses. By the second order dated 16.07.2025, in SLP No. 6637/2025, the Supreme Court dismissed the petitioner's challenge against the order dated 24.04.2025, passed by this Court in B.A. No. 716/2025. 16. It is further submitted by the learned Additional Public Prosecutor that referring to the evidence in a case of bail is not worthwhile. Evidence cannot be discussed while considering a bail application when the matter is subjudiced before the Trial Court, more so, when the matter is at the fag end of the trial. The evidence has to be assessed by the learned Trial Court. This Court while dealing with a bail application would not definitely assess the evidence in a manner similar to a mini trial. Page No.# 6/7 17. I have considered the submissions at the Bar with circumspection. 18. I find force in the argument submitted by the learned Additional Public Prosecutor. It is true that after this Court rejected the bail application of Mokdam Ali i.e., the petitioner vide order dated 24.04.2025 in B.A. No. 716/2025, the petitioner approached the Supreme Court and the petitioner's Special Leave petition was dismissed by the Hon'ble Supreme Court. The earlier direction of the Hon'be Supreme Court is also to be complied with. It is true that the witnesses cannot influence the I.O. at this stage. It is submitted that the I.O. is to be cross-examined on the statements of the witnesses recorded under section 161 of the CRPC. 19. In this case at hand, charges have been framed against the petitioner under Section 302/34 of the IPC. It is no more res integra that while considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like, the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses, repeating the offence if the accused is released on bail, the likelihood of the accused being unavailable in the event, bail is granted, the possibility of obstructing the proceedings and evading the Courts of justice, and Page No.# 7/7 the overall desirability of releasing the accused on bail. 20. The gravity of offence cannot be ignored. The overall desirability of releasing the accused on bail also cannot be ignored. 21. The Supreme Court accorded an opportunity to the petitioner to apply for bail, after examination of key witnesses. The I.O. is yet to be examined. The fact that the petitioner's special leave application against the bail order of this Court has been dismissed by the Supreme Court is also taken into account. Trial is progressing at a regular pace. 22. In view of the foregoing discussions, it is thereby held that at this juncture, the Court is constrained to reject the bail application of the petitioner. 23. Bail application stands rejected at this stage. JUDGE Comparing Assistant