Gauhati High Court
Mantu Borah vs The State Of Assam on 7 February, 2020
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/4
GAHC010007812020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB 169/2020
1:MANTU BORAH
S/O- PHANIDHAR BORAH, VILL.- HELEMGURI, P.O. HELEMGURI, P.S.
HELEM, DIST.- BISWANATH, ASSAM, PIN- 784172.
VERSUS
1:THE STATE OF ASSAM
REP. BY P.P., ASSAM
Advocate for the Petitioner : MR. R DE
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 07-02-2020 Heard the learned counsel, Mr. R. De, appearing for the petitioner. Also heard Mr. N. K .Kalita, learned Additional Public Prosecutor, Assam, appearing for the State respondent.
By this application under Section 438 of the Cr.P.C., the accused petitioner, namely, Mantu Borah, has prayed for grant of pre-arrest bail in connection with Helem P.S. Case No. 51/2019, registered under Sections 120(B)/121/507 of the Indian Penal Code read with Section 18 of the U.A. (P) Act and read with Section 67 of the I.T. Act.
Page No.# 2/4 The petitioner, herein, had uploaded a message in Facebook. The said message is read as follows -
"Aji Jiman student e houk ba raijei houk himn protibad krise teo CAB grihit krile.xokoluke anurudh jonao.aji ami jimn manuh rajpothot ahi andulon krisu hokolue hatot bonduk louk.alfa mak help korok."
An English translation of the aforesaid message would disclose that the petitioner was criticizing the protesters of Citizenship Amendment Bill and invited them to take up arms and for that matter he requested the ULFA, the banned organization, for help.
The F.I.R. in this case is filed by a Police Officer of Helem Police Station. The informant has alleged that the petitioner had abated the people for weighing war against the Government of India. Accordingly, Police registered the case under Section 18 of U.A. (P) Act and under Section 67 of the I.T. Act.
Mr. Kalita, learned Additional Public Prosecutor, Assam, has objected to this bail petition on the ground that an Anticipatory Bail Petition under Section 438 of the Cr.P.C. would not lie here because of the bar created by Section 43 D (4) of the U.A. (P) Act.
The learned counsel for the petitioner, on the other hand, has relied upon a decision of the Hon'ble Supreme Court which was rendered in Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra (2018 Crl. L. J. 3422), wherein, the Hon'ble Supreme Court has held that even if there is a bar, exclusion of Section 438 of the Cr.P.C. would not apply if the allegations of the offence are found to be prima facie false and motivated. The learned counsel for the petitioner has also drawn the attention of this Court to Section 15 of the said Act. He further submitted that the act of the petitioner, herein, is not a "terrorist act "as defined by Section 15 of the U.A. (P) Act.
Page No.# 3/4 Some people in Assam are agitating against the Citizenship Amendment Bill. The petitioner asked those people to take up arms to protest against the said Bill.
In Dr. Subhash Kashinath Mahajan (supra), the Hon'ble Supreme Court has held as under -
"68. Accordingly, we have no hesitation in holding that exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, we are reiterating a well established principle of law that protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest. In doing so, we are not diluting the efficacy of Section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention."
In the case in hand, I am of the considered opinion that the act of the petitioner can never be termed to be a terrorist activity. His act is nothing but an act of a precocious young person. Therefore, this Court is of the opinion that the petitioner, namely, Mantu Borah, does not deserve to be detained in custody. Accordingly, it is directed that in the event of arrest the petitioner namely, Mantu Borah, he shall be released on bail of Rs. 10,000/- (Rupees ten thousand) only with a surety of like amount subject to the satisfaction of the arresting authority. It is further provided that the petitioner shall continue to render full co-operation in the investigation and shall not indulge in any activities which are detrimental to the investigation.
The anticipatory bail application is, accordingly, disposed of.
JUDGE Page No.# 4/4 Comparing Assistant