Gauhati High Court
Monirul Islam @ Monu Sk vs The State Of Assam on 7 November, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/5
GAHC010191302022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/2768/2022
MONIRUL ISLAM @ MONU SK
S/O NASHIRUDDIN
VILL- BHUTIDANGA, P.O. SUKCHAR
P.S. SOUTH SALMARA
DIST. SOUTH SALMARA MANKACHAR, ASSAM, PIN-783135
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. M ISLAM
Advocate for the Respondent : PP, ASSAM
Linked Case : AB/2700/2022
MIZANUR RAHMAN
S/O MOZIBOR RAHMAN
VILL- RAGHUPARA
P.O. FEKAMARI
P.S. SOUTH SALMARA
DIST. SOUTH SALMARA MANKACHAR
ASSAM
PIN-783135
Page No.# 2/5
VERSUS
THE STATE OF ASSAM
REP. BY THE PP
ASSAM
------------
Advocate for : MR. M ISLAM
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 07-11-2022 Heard Mr. M. Islam, learned counsel for the two petitioners in A.B. no. 2768/2022 and A.B. no. 2700/2022; Mr. B. Sharma, learned Additional Public Prosecutor for the respondent State of Assam; and Ms. A. Begum, learned counsel for the informant.
2. By this application under Section 438, Code of Criminal Procedure, 1973 [CrPC], the two petitioners, that is, Monirul Islam @ Monu Sk in A.B. no. 2768/2022 and Mizanur Rahman, the petitioner in A.B. no. 2700/2022, have approached this Court seeking the benefit of pre-arrest bail, apprehending their arrest, in connection with South Salmara Police Station Case no. 286/2022 registered for offences punishable under Sections 376[I]/323/34, Indian Penal Code [IPC] and added Section 498[A], IPC.
3. The informant in the First Information Report [FIR], registered on 28.07.2022, has named 5 [five] persons as accused. The accused no. 1, Mizanur Page No.# 3/5 Rahman is the petitioner in A.B. no. 2700/2022 and the accused no. 3, Monirul Islam @ Monu Sk is the petitioner in A.B. no. 2768/2022. The informant is the second wife of the accused no. 1-petitioner in A.B. no. 2700/2022. The name of the first wife of Mizanur Rahman is Smti. Narzuma Lucky. The accused no. 3- petitioner in A.B. no. 2768/2022 is the brother of Smti. Narzuma Lucky i.e. the first wife of Mizanur Rahman. The accused no. 4, Mazeda Khatun is the sister of Mizanur Rahman and the accused no. 2, Abdul Mazid is the husband of Mazeda Khatun. The accused no. 5 is another brother of Mizanur Rahman, accused no. 1-petitioner in A.B. no. 2700/2022.
4. In the FIR, the informant has inter alia alleged that the marriage between the informant and the accused no. 1-petitioner in A.B. no. 2700/2022 was solemnized 2 years earlier and out of the wedlock, a girl child was born. Allegations are made to the effect that the accused no. 2, Abdul Mazid used visit the house of the informant and during one such visit, he committed forceful sexual assault upon her. It is stated that the husband of the informant i.e. accused no. 1 - petitioner in A.B. no. 2700/2022 used to reside separately from the informant and he used to reside with his first wife. Allegation is made to the effect that accused no. 1-petitioner in A.B. no. 2700/2022 assaulted the informant when the informant disclosed to him about an incident of forceful sexual assault by the accused no. 2, Abdul Mazid. The informant was also allegedly assaulted physically by the accused no. 2, Abdul Mazid and the accused no. 4, Mazeda Khatun, when the informant met them.
5. Thus, from the allegations made in the FIR, it is evident that there are no allegations of committing forceful sexual assault upon the informant by the accused no. 3-petitioner in A.B. no. 2768/2022. The allegation of committing forceful sexual assault upon the informant is only against the accused no. 2, Page No.# 4/5 Abdul Mazid, who was arrested on 29.07.2022.
6. Mr. Sharma, learned Additional Public Prosecutor who has received the case diary, has submitted that in her statement recorded under Section 161, CrPC, the informant has brought allegation of committing sexual assault upon her also by the accused no. 3-petitioner in A.B. no. 2768/2022. The contents of the FIR is, therefore, found that at variance with the statement of the informant recorded under Section 161, CrPC and it, thus, clearly appears that there is embellishment and improvement on the part of the petitioner in stating her version against the accused no. 3-petitioner in A.B. no. 2768/2022. Veracity of the versions of the petitioner can be gone into only during the course of the trial. Be that as it may. The injury report available in the case diary goes to show that the informant suffered simple injury and the same appears to be not sufficient for declining the prayers of pre-arrest bail made by the petitioners in these two writ petitions.
7. It is noticed that interim protections were extended to the petitioner in A.B. no. 2700/2022 on 16.09.2022 and to the petitioner in A.B. no. 2768/2022 on 21.09.2022 and pursuant to the interim orders, both of them have appeared before the Investigating Officer of the case and their statements have been recorded by the Investigating Officer. Thus, the two petitioners have already joined the investigation.
8. Having regard to the nature of allegations made by the informant against the two petitioners in the FIR and the materials available in the case diary, collected during the course of investigation carried out so far, this Court is of the considered view that custodial interrogations of the petitioners for the purpose of carrying out further investigation of the case do not appear to be necessary as they have already joined the investigation by appearing before the Page No.# 5/5 Investigating Officer and their release on pre-arrest bail, at this stage of investigation, is not likely to affect the further investigation of the case in any prejudicial manner, provided they continue to extend their assistance and co- operation in the further investigation of the case.
9. Accordingly, the interim protection granted to the accused no. 1- petitioner in A.B. no. 2700/2022 on 16.09.2022 and the accused no. 3- petitioner in A.B. no. 2768/2022 by order dated 21.09.2022, are made absolute, subject to the following conditions :-
[1] the petitioners shall co-operate with the investigation and make themselves available as and when their presence are required by the I.O. in the investigation of the case;
[2] the petitioners shall not, directly or indirectly, make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; and [3] the petitioners shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police.
The two applications stand disposed of in the aforesaid terms.
JUDGE Comparing Assistant