Gauhati High Court
Shaha Alom @ Shah Alom Miah vs The State Of Assam on 3 August, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
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GAHC010099752021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1528/2021
SHAHA ALOM @ SHAH ALOM MIAH
S/O LATE JINNAT ALI
VILL- TOKRAIPARA
P.O. JHOWDANGA, P.S. MANKACHAR
DIST. SOUTH SALMARA MANKACHAR
ASSAM, PIN783131
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. M ISLAM
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 03-08-2021 The Court proceedings have been conducted through remote video conferencing mode.
2. Heard Mr. H.R.A. Choudhury, learned counsel for the accused-petitioner Page No.# 2/9 and Mr. B.B. Gogoi, learned Additional Public Prosecutor for the respondent State of Assam.
3. By this application under Section 439, Code of Criminal Procedure, 1973 (CrPC), the accused-petitioner viz. Shaha Alom @ Shah Alom Miah has sought for his release on bail as he is in custody in connection with Mankachar Police Station Case No. 182/2013 (G.R. Case no. 1197/2013), registered under Sections 370/34, Indian Panel Code.
4. Mr. Choudhury has submitted that the accused-petitioner after arrest, was produced before the Court of learned Sub-Divisional Judicial Magistrate, Hatsingimari, South Salmara Mankachar, Assam on 08.04.2021. Thereafter, a part-charge sheet was submitted on 29.04.2021. In the said charge sheet, the Investigating Officer (I.O.) has claimed that the fact that the accused-petitioner is involved in the trafficking of children including the victim Sheikh Arjun, has been proved but there are no materials to the effect that the accused-petitioner had sold the victim. Referring to the part-charge sheet, he has submitted that it is the accused-petitioner who had lodged a missing report about the victim before the Police Station at Delhi. It is his further submission that since co- accused persons have already been granted benefit of bail, the accused- petitioner may also be released on bail on the ground of parity. Moreover, the accused-petitioner is a local person and as such, there is no possibility of him absconding. He has referred to a decision of the Hon'ble Supreme Court of India in Pravat Kumar Dash vs. Central Bureau of Investigation, reported in (2017) 8 SCC 452, in support of his submissions.
5. Mr. Gogoi, learned Additional Public Prosecutor has, on the other hand, vehemently objected to the prayer for bail. He has submitted that the First Page No.# 3/9 Information Report (FIR) in the instant case was filed on 20.05.2013 and the accused-petitioner could be apprehended only on 07.04.2021. A part charge sheet has been submitted on 29.04.2021. In the case record of G.R. Case No. 1197/2013, there are ample materials which clearly show that the accused- petitioner is involved in offence of child trafficking since long and in an organized manner. The accused-petitioner was not only involved in the trafficking of the victim in question but there are many other children who had been taken away by the accused-petitioner to Delhi and the accused-petitioner exploited those children by making them to rag pick at the faraway place.
6. I have considered the submissions of the learned counsel for the parties and also perused the materials available in the case record of G.R. Case No. 1197/2013, arising out of Mankachar Police Station Case No. 182/2013.
7. The case, Mankachar Police Station Case no. 182/2013 (G.R. Case no. 1197/2013) under Sections 370/34, IPC came to be registered on the basis of an FIR lodged by one Md. Dudu Miah on 20.05.2013 wherein he named the present accused-petitioner and one Anar Zamal as accused. In the said FIR, the informant had, inter-alia, stated that the two accused persons on 09.11.2012 took his son, Sheikh Arjun, aged about 13 years, and his nephew, Subur Miah, aged about 15 years, to Delhi by inducement for engaging them in jobs. After the two minor boys were taken to Delhi the informant tried to contact the accused persons over phone to get information about his son and nephew. After some period, Subur Miah came back from Delhi and told the informant that his son went missing one day. When the accused persons visited their native place after sometime, they did not bring the informant's son with them. When the informant inquired, the accused persons informed him that Sheikh Arjun went Page No.# 4/9 missing in Delhi. The informant thereafter, went to Delhi in search of his son but had to come back without any information about him. It was suspected that the accused persons had either sold Sheikh Arjun or killed him. The case has been registered for offences under Sections 370/34, IPC and investigation was initiated.
7. During the course of investigation, a number of witnesses were examined by the I.O.s by recording their statements. Two accused persons viz. Anar Zamal, named in the FIR, and one Antab Ali were arrested. The statement of one of the victims, Subur Miah was recorded under Section 164, CrPC on 21.12.2019. In his statement under Section 164, CrPC, Subur Miah gave an account about the manner in which he and Sheikh Arjun were taken to Delhi by the accused-petitioner and other accused in the year 2012.
8. From the materials in the case record which includes the statement of Subur Miah, it has emerged that apart from the said two minors referred above, the accused-petitioner had taken some more children to Delhi and by keeping them in small houses made of plastic and cartoon sheets in Jhuggi Jhopri, these children were engaged in the work of rag picking in Delhi. The children were asked to go out in the morning hours to rag pick from the roadsides and other places and to come back in the evening hours to deposit the collected items to the accused-petitioner. Some of those boys were taken to Delhi without any information to their parents. It has further emerged that prior to their leaving for Delhi, the children were told by the accused-petitioner not to inform their parents that they would be leaving for Delhi with him. The parents of some other children who were taken by the accused-petitioner to Delhi without their knowledge, have corroborated the said fact. The children were lured to go with Page No.# 5/9 him with the promise that they would be paid adequately. The minor boy, Sheikh Arjun was exclusively kept by the accused-petitioner with him for the job of rag picking. Though works were extracted from those minor boys, they were not paid. The minor boy, Sheikh Arjun was found missing one day. When the accused-petitioner was asked whereabout of Sheikh Arjun by Subur Miah, he was beaten by the accused-petitioner, Anar Zamal and Altab Ali with the threat to him not to ask about Sheikh Arjun again. He stated to have overheard the accused persons discussing about selling Sheikh Arjun. According to him, Sheikh Arjun had been sold by the three accused persons. Similarly, they had plotted to sell Subur Miah also. In his statement, Subur Miah has disclosed that after learning about the plot to sell him, he managed to flee away from the clutches of these three accused persons with the help of another person who also hailed from the State. By boarding a train with the help of the said person at Delhi, Subur Miah somehow managed to reach his house. The statement of another witness who was also taken to Delhi by the petitioner when he was a minor, is also available in the case record and this witness has also corroborated the version of Subur Miah.
9. The materials in the case record further go to show that it was not at the instance of the accused-petitioner that the missing entry about Sheikh Arjun was filed. After learning about missing of his minor son, the informant, Dudu Miah had reached Delhi and met the accused-petitioner. When Dudu Miah after making searches, failed to find out his son, Sheikh Arjun, Dudu Miah and the accused-petitioner had filed an information about missing at Sunlight Colony Police Station, South East District, New Delhi on 05.12.2012. A case has been registered as FIR no. 450 but no information has been received till date from the Delhi police about the recovery of Sheikh Arjun till date.
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10. Materials in the case record further go to show that since the date of registration of the case i.e. 20.05.2013, the accused-petitioner has been found absconding and he had managed to evade arrest until 07.04.2021. In view of abscondance of the accused-petitioner, the investigation of the case did not progress in the manner desired and it was only after his arrest, the charge sheet could be submitted on 29.04.2021. The Investigating Authority has observed that there is need to carry out further investigation into the case so as to unearth further materials about the modus operandi adopted by the accused- petitioner in trafficking of children from the State, more particularly, from areas in and around Mankachar. A prayer was made before the learned Court to permit the Investigating Authority to carry out further investigation in the case under Section 173(8), CrPC while submitting the charge sheet and the said prayer has been allowed by the learned Jurisdictional Magistrate on 03.06.2021.
11. It is well settled that the aspects to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of justice being thwarted by grant of bail. It is no doubt true that while considering an application for bail the aspect of personal liberty of the accused is also to be considered. But at the same time, the interest of free and fair trial of the case, more particularly, when it pertains to an offence of heinous nature is also to be looked into. The discretion vested in the Court for grant of bail or otherwise has to be exercised in a judicious manner and not as a matter Page No.# 7/9 of course.
12. The offence defined under Section 370, IPC relates to trafficking of person. As per Section 370, IPC, if the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than 14 (fourteen) years, which is the allegation in the case in hand against the accused-petitioner and the other accused persons, but which may extend to imprisonment for life, and shall also be liable to fine. If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
13. In Pravat Kumar Dash (supra), a partial charge sheet was filed on 07.03.2015 and thereafter, despite several extensions of time for completion of the remaining part of the investigation, the investigation was not completed. By that time, the accused had spent over two-and-half years in custody. Having regard to the period of custody suffered and the offences alleged against him which were under Sections 420/467/468/471/406/417/418/422/120B/34, IPC and Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978, the accused was released on bail.
14. In the case in hand, the accused-petitioner is in custody since 08.04.2021 for the offence under Section 370, IPC, an offence grievous in nature. It has emerged from the materials in the case record that the accused-petitioner was absconding for more than 7 (seven) years and it was after much efforts on the part of the Investigating Authority, he could be apprehended on 07.04.2021. The allegations against the accused-petitioner are about trafficking of more than one minor, that too, on more than one occasion. The learned Jurisdictional Page No.# 8/9 Magistrate having reached the satisfaction that there is need to carry out further investigation, has allowed the Investigating Authority to carry out further investigation by his order dated 03.06.2021 and the further investigation is still in progress. In the above fact situation, obtaining in the case in hand, it is found that the decision in Pravat Kumar Dash (supra) is found not of any assistance in the case of the accused-petitioner.
15. Having regard to the facts and circumstances of the case where the accused-petitioner is facing the serious charge of trafficking of more than one minor, that too, on more than one occasion and where the charges have not yet been framed and the minors who were so trafficked, have not yet been examined as prosecution witnesses, the possibility of influencing or intimidating or preventing those witnesses by the accused-petitioner from deposing in the trial to be taken place in a manner free from any fear or influence in the event of his release on bail, at this stage, cannot be ruled out. Furthermore, further investigation is being carried out and it is still in progress and there is possibility of causing impediment in the course of such further investigation. The accused- petitioner has been found absconding resulting in a protected investigation of running into more than 7 (seven) years till date. In the aforesaid facts and circumstances, this Court is of the considered view that the release of the accused-petitioner on bail at this stage is likely to impede the process of free and fair trial when the charges are yet to be framed and the vital witnesses are yet to be examined. Upon due consideration of all these aspects, this Court does not find any merit in this bail application. Accordingly, the prayer for bail made on behalf of the accused-petitioner is rejected.
16. While rejecting this application with the aforesaid observations, it is made clear that the above observations are only limited to the question of granting Page No.# 9/9 bail or otherwise of the accused-petitioner and the observations, made above, shall not have any bearing in the merits of the case during the course of the trial. Liberty is, however, granted to the accused-petitioner to renew his prayer for bail after the charges are framed; the victims, cited as prosecution witnesses, who were allegedly trafficked by the accused-petitioner, are examined and upon due consideration of the progress made in the further investigation.
JUDGE Comparing Assistant