Gauhati High Court
Nalini Saikia vs The State Of Assam on 18 January, 2022
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/6
GAHC010207752021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/4066/2021
NALINI SAIKIA
SON OF LATE NABIN SAIKIA
R/O VILL- MAZGAON
KHARAATI, TEZPUR, P.O. TEZPUR
P.S. TEZPUR, DIST. SONITPUR, ASSAM, PIN CODE-784001
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 18-01-2022 Heard Mr. K.N. Choudhury, learned Senior Counsel appearing for the petitioner. Also heard Mr. K.K. Parasar, learned Addl. Public Prosecutor, Assam appearing for the State respondent.
Page No.# 2/6
2. This second petition under Section 438 Cr.P.C., is filed for granting the privilege of pre-arrest bail to the petitioner, namely Sri Nalini Saikia apprehending arrest in connection with Tezpur P.S. Case No. 1790/2021 u/s 376/420/448/294/325/506 of the IPC.
3. The Case diary, as called for, is placed before the Court.
4. The previous bail application of the petitioner being AB 2854/2021 was rejected by this Court vide order dated 11.11.2021.
5. Mr. K.N. Choudhury, learned Senior Counsel appearing for the petitioner, contends that this Court rejected the earlier pre-arrest bail application of the petitioner and accordingly, vacated the interim pre-arrest bail granted to him in view of the written objection of the investigating officer inter-alia to the effect that the petitioner misled the investigation and had hampered and tempered with the investigation into the case. Mr. Choudhury, however, seeks a fresh consideration of his pre-arrest bail prayer on the ground that the petitioner has been suffering from jaundice since the last part of October, 2021 and besides the prescribed medications, the consulting doctor has advised him for complete rest.
6. Opposing the pre-arrest bail application of the petitioner, Mr. K.K. Parasar, learned Addl. Public Prosecutor has drawn attention to the grounds of rejection of the petitioner's earlier pre-arrest bail application and emphasized his uncooperative and bad conduct in course of the investigation.
7. The brief fact of the case is that since the year 2013 the petitioner and the victim woman had been in physical relationship with promise from the petitioner's side to marry her. On 22.08.2021 at around 8 p.m., the petitioner Page No.# 3/6 entered into the residence of the victim and apart from abusing her with indecent language hit her with his mobile phone injuring her right eye. It is alleged that the accused petitioner also threatened that he would circulate the victim's photographs in the social media which were stored in his mobile and that he would engage some other persons to commit rape on the victim's daughter as well as that he would pour acid on her body.
8. This Court by order dated 11.11.2021 while rejecting the earlier bail application, had observed as under-
"5. It may be mentioned that by order, dated 22.09.2021, this Court granted the privilege of interim pre-arrest bail to the petitioner, which reads as under-
"Considering the facts and circumstances of the case, it is provided that in the event of arrest of the petitioner named above, shall be released on interim pre-arrest bail, in connection with the above noted case, on furnishing bail bond of Rs.25,000/- with one surety of like amount to the satisfaction of the arresting authority, subject, of course, to the following conditions:
(i) That the petitioner shall appear before the Investigating Officer within 7 days;
(ii) That the petitioner shall not hamper or tamper with the investigation in any manner;
and
(ii) That the petitioner shall not, directly or indirectly, make any inducement, threat 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."
6. Now, the investigating officer by filing a written objection, dated 09.11.2021, has prayed to reject the pre-arrest bail prayer of the petitioner on the grounds cited as hereunder-
"(1) On 25.09.2021 the accused person appeared before police station after getting interim pre-arrest bail from your learned court and during interrogation while I checked the mobile handset of accused and found some nude photos and videos of victim and duly seized.
During examination the victim told that the accused had many mobile handsets where he stored nude photos and videos not only in his mobile storage but also in Google photo and Page No.# 4/6 other cloud storage. The CDR/IMEI/SDR of aforesaid mobile number 6901620157 was collected and learnt that the SDR of the number in the name of accused Nalini Saikia S/o- Lt Nabin Saikia Vill- Majgaon Kharati P.S.- Tezpur Dist- Sonitpur that is used in one ASUS mobile handset bearing IMEI 351928081483098. The notice U/S 91 CrPC has been issued to accused person to produce the same ASUS mobile handset before me but the accused produced an unknown ASUS mobile handset very cleverly in totally damaged condition and told me that said mobile was damaged one year ago. But while I analyzed CDR/IMEI/SDR/PTL of suspected mobile number 6901620157 and found that same device was used from 29/08/21 to 29/9/21 which means the accused person not only misleading the investigation but also violated the condition no. 2 of the Hon'ble high court order as hampering and tempering the investigation.
(2) The mobile phones are still now in his custody since the particular mobile phone are the vital evidence in this case so the recovery of the mobile phone is must. Now he is not letting us to recover the mobile phone as well as he is not mentioned about the user ID and password of the cloud storage where he stored the nude picture and the videos.
(3) In the period of interim pre-arrest bail the accused person usually went to the victim's office and threatened her to withdraw the case in presence of her staffs. Thus, he violated the Hon'ble high court'a order condition number (ii) and (iii).
(4) As per information he used to roam all over INDIA for what it is not easy to find him for the investigation"
7. A perusal of the statements of the victim woman under Sections 161 and 164 Cr.P.C., it is prima facie revealed that the victim, a married woman aged about 29 years, had been in love relationship with the petitioner since 2013 and believing his false promise of marriage, she occasionally consented him to establish physical relationship. In 2019, the petitioner took her to Bamungaon and while staying together, whenever she reminded him to marry her, he threatened her by pointing a gun. In 2016, the petitioner caused her to divorce her husband relying on his promise of marriage. The petitioner also subjected the victim and her daughter to physical and mental harassment on various occasions. The petitioner also caused her abortion thrice.
8. The injury/medical reports (CT scan etc.) reveal that the victim sustained injuries Page No.# 5/6 giving rise to the medical impression of (1) haematoma measuring 11 mm x 20 mm in subcutaneous plane of left pre-zygomatic region and (2) soft tissue swelling in left pre- zygomatic and pre-maxillary region.
9. The investigating officer appears to have seized various incriminating materials including electronic records and has sent those materials to the Forensic Science Laboratory, Assam for analysis, the report on which is awaited.
10. Although as per one of the conditions of the interim pre-arrest bail, the petitioner appeared before the investigating officer, subject to final outcome in investigation, keeping in consideration of the overall facts and circumstances more particularly, prima facie aggressive conduct of the petitioner towards the victim woman and her daughter that emerge from the case diary and further, in view of the adverse report of the investigating officer, as stated above in detail, this Court is of the opinion that it is not a fit case to grant the privilege of pre arrest bail to the petitioner.
11. Accordingly, the pre-arrest bail application of the petitioner stands rejected.
12. The interim pre-arrest bail granted vide order, dated 22.09.2021 stands vacated. The investigating officer is directed to expedite investigation."
9. On perusal of the updated case diary, it is seen that there is no new evidence dislodging the above findings recorded in this Court's aforesaid previous pre-arrest bail prayer rejection order. Therefore, this Court is of the opinion that in the backdrop of facts alleged and prima facie evidence so far collected by the investigating officer, it is not a fit case to grant the privilege of pre-arrest bail to the petitioner on the new ground of his illness (jaundice) since last part of October, 2021.
10. Accordingly, the pre-arrest bail prayer of the petitioner stands rejected for the second time.
11. Return the case diary.
12. This disposes of the anticipatory bail application.
Page No.# 6/6 JUDGE Comparing Assistant