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2011 DIGILAW 753 (GAU)

Mathew Lalnunpuia v. State of Assam

2011-09-09

UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. The instant application is filed by the accused petitioner, namely, Mathew Lalnunpuia under section 439, Cr.PC for granting him bail in connection with CID PS case No. 57 of 2011 under section 25(1A) of the Arms Act, as he is in custody since 22.7.2011 in connection with the aforesaid PS case. 2. Heard Mr. A.K. Bhuyan, learned counsel for the petitioner who submits that the petitioner though named in the FIR but there is no statement as to how and in what manner the petitioner is involved with the alleged offence. More so, the petitioner is in custody since his date of arrest, i.e., almost for a period of about 50 days and custodial detention is permissible up to 60 days. He further submits that when the police have recovered the alleged 20 Nos. of live ammunition of A.K. series, nothing remains for custodial detention of the petitioner. He further submits that an under trial prisoner should not be considered as a convict in a trial, as by this time it is settled that power to grant bail is not to be exercised by a court as if the punishment before trial is being imposed and an under trial prisoner is kept in the custody only for the purpose of investigation, not otherwise, in the instant case, further detention of the petitioner in custody would be nothing but a punishment. Thus, it would be proper for the court to grant him bail with any condition as this court deems fit when he is ready to cooperate with the investigating agency to find out the real truth. 3. Mr. B.S. Sinha, learned Addl. PP for the State, while producing the case diary mainly placed reliance on the statement of the accused-petitioner before the police and contended that the accused-petitioner himself stated before the police that he went to the house of Mrs. Melody Hmar and on query of the CID people he has shown the 20 Nos. of live ammunition kept in the box of a fan. On query of this court Mr. Sinha submits that except production of the case diary, there is no such specific prayer from the IO of the case for further detention of the accused. 4. Melody Hmar and on query of the CID people he has shown the 20 Nos. of live ammunition kept in the box of a fan. On query of this court Mr. Sinha submits that except production of the case diary, there is no such specific prayer from the IO of the case for further detention of the accused. 4. It is settled by this time that detention of an under trial prisoner is necessary only when there is a possibility of his absconsion or tampering the witnesses or after his release he will gain over the witnesses to frustrate the trial. A court cannot detain a person only considering the heinousness of the offence committed without looking into the other aspects like possibility of absconsion and tampering the witnesses. No doubt the offence is a heinous one but heinousness of an offence is not the only criteria to refuse the prayer for bail. A court has to consider whether after release the accused would be available for facing the trial or not. Mr. Bhuyan rightly said that by this time it has been settled by the Apex Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case these is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence - see Bhagirathsinh Judeja v. State of Gujarat (1984) Cri. LJ 160 (SC). 5. In a case where the offences are serious in nature, court should consider how and in what manner the investigating agency can be assisted by the accused and what should be the conditions to be imposed. LJ 160 (SC). 5. In a case where the offences are serious in nature, court should consider how and in what manner the investigating agency can be assisted by the accused and what should be the conditions to be imposed. In the instant case, being the nature of offence is a serious one, this court is of considered opinion that some conditions should be imposed so that the accused cannot avoid the trial. 6. Accordingly, keeping in mind that the petitioner is a commission agent and is in custody for about 50 days, it is ordered that the petitioner shall be released on bail in connection with the aforesaid PS case on furnishing a bond of Rs. 30,000 with two sureties each of the like amount to the satisfaction of the learned CJM, Kamrup on further condition that he shall appear before the IO of the case once in a week for the next three months and shall not, directly or indirectly, make any inducement, thereat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer. He shall not leave the Kamrup District without the prior permission the learned CJM, Kamrup. 7. With the aforesaid order, bail application stands allowed.