Gauhati High Court
Page No.# 1/6 vs The State Of Assam on 3 August, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/6
GAHC010148492022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1845/2022
RABIYAL ALI AND 3 ORS.
S/O SAHED ALI
VILL- PALHAJI
P.O. PALHAJI, P.S. BARPETA,
DIST. BARPETA, ASSAM,
PIN-781309.
2: MOSTAB ALI
S/O AFAJ UDDIN
VILL- MAJORGAON
P.O. BHATKUCHI
P.S. BARPETA
DIST. BARPETA
ASSAM
PIN NO. 781314
3: RAKIBUL ISLAM
S/O SUKUR ALI
VILL- MAJORGAON
P.O. BHATKUCHI
P.S. BARPETA
DIST. BARPETA
ASSAM
PIN-781314.
4: ABBAS ALI
S/O RUPCHAN ALI
VILL- KAHIBARI
P.O. PATBAUSHI
P.S. BARPETA
Page No.# 2/6
DIST. BARPETA
ASSAM
PIN-78130
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. S AHMED
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 03-08-2022 Heard Mr. S. Ahmed, learned counsel for the petitioners. Also heard Mr. D.P. Goswami, learned Addl. P.P. for the State.
2. By filing this bail application under section 439 Cr.P.C., the four petitioners herein, namely, (1) Rabiyal Ali, (2) Mostab Ali, (3) Rakibul Islam, and (4) Abbas Ali who were arrested on 30.03.2022 in connection with Barpeta P.S. Case No. 338/2022 under sections 341/302/34 IPC with added section 120B IPC are seeking regular bail as they are in custody for last about 126 days.
3. The learned counsel for the petitioners has submitted that upon completion of investigation of the case, on 21.06.2022, the I.O. had submitted charge-sheet against the petitioners in the herein before mentioned police case, wherein one of the charge-sheeted accused, namely, Rafikul Ali was shown as Page No.# 3/6 absconder. It was further submitted that by an order dated 29.06.2022, the learned Sessions Judge, Barpeta had granted regular bail to the two co-accused, namely, Mokdam Ali and Mohibul Hoque @ Moni. However, by an order dated 18.07.2022, the prayer for regular bail to the petitioners was rejected by the learned Sessions Judge, Barpeta. In the said context, it was submitted that while rejecting the prayer for bail of the petitioners, the learned Sessions Judge, Barpeta had given a go-bye to the principles of parity in the matter of grant of bail for which the said order dated 18.07.2022 was perverse.
4. The learned Addl. P.P. has opposed the prayer for bail.
5. It is seen from the FIR dated 22.03.2022 that the allegations against the 3 (three) named accused is that during pendency of a three year old land dispute, on 21.03.2022, at about 7.30 pm, Rinima Begum and Rupjan Nessa, the elder sisters of the informant went to the house of Binay Doctor at Bilartarihati (also referred to as Bilortari Chowk) and after visiting the doctor, while stepping into the car, suddenly the named accused came in a motor-cycle and accused no. 1, Mokdam Ali strangulated the neck of Rinima Begum, and accused no. 2 had stabbed her belly and killed her. The accused no. 1 and 2 escaped on the motorcycle driven by accused no. 3. Rupjan Nessa was able to identify the accused persons and there were eye witnesses who would prove the same in Court.
6. The petitioners herein were arrested on 30.03.2022 and from the forwarding report dated 31.03.2022 of the I.O., by which 5 (five) accused including the 4 (four) petitioners herein were produced before the learned Court of Chief Judicial Magistrate, Barpeta, it appears that the fifth accused named therein, Mahibul Haque, who was granted regular bail by order dated Page No.# 4/6 29.06.2022, had planned the murder of the victim and had paid a sum of Rs.13.00 lakh in installments to Rakibul Islam (petitioner no.3) and Mostab Ali (petitioner no. 2) herein to prepare a plan and hire professional killers. It is further stated therein that investigation had revealed that the petitioner nos. 2 and 3 had paid Rs.4,50,000/- to Abbas Ali (petitioner no.4) for committing the murder and in turn the petitioner no. 4 had hired one Rafikul (also referred to as Rafiqul) (absconding accused) and Rabiyal Ali (petitioner no.1) to murder the victim.
7. As per the charge-sheet, the petitioner no. 1 had not disclosed whether he is employed in any manner, petitioner no. 2 is a daily labourer, petitioner no. 3 is a salesman, and petitioner no. 4 is a carpenter. Thus, there is no material before the Court to show that the petitioners have regular source of income and have some standing in the society so as to assure to the Court that if enlarged on bail, they can be found and they would appear on each date before the trial Court. As the investigation reveals that the accusation against the petitioners is that they were professionals and hired to kill the deceased victim, the Court is of the opinion that it would not be appropriate to release the petitioners on bail.
8. It would now be appropriate to deal with the plea of principle of parity in the grant of bail, which was raised by the learned counsel for the petitioners. On the invoking of the principle of parity in the matter of grant of bail, it may be mentioned that a two Judge Bench of the Supreme Court of India, in the case of Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230, had held that the High Court while granting bail must focus on the role of the accused in deciding the aspect of parity. It was observed as Page No.# 5/6 under:-
"26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12- 2020, the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-
15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.
The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."
9. The said view was again approved by another two- Judge Bench of the Supreme Court of India in the case of Mahadev Meena v. Praveen Rathore & Anr., (2021) 0 Supreme(SC) 518: 2021 SCC OnLine 804.
10. Therefore, notwithstanding that two other co-accused have been granted the privilege of bail, but they were not hired killers. Hence, as indicated herein before, the Court is of the considered opinion that this is not a fit case to enlarge the petitioners, namely, (1) Rabiyal Ali, (2) Mostab Ali, (3) Rakibul Islam, and (4) Abbas Ali on regular bail. Hence, the prayer for bail is rejected in the motion stage without issuing notice to the State.
11. This application stands disposed of.
Page No.# 6/6 JUDGE Comparing Assistant