Gauhati High Court
Prasanta Bhuyan @ Sushil Bhuyan vs The State Of Assam And Anr on 14 October, 2020
Author: Suman Shyam
Bench: Suman Shyam, Prasanta Kumar Deka
Page No.# 1/4
GAHC010118722020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.) 433/2020
1:PRASANTA BHUYAN @ SUSHIL BHUYAN
- S/O- BHABA BHUYAN, R/O- CHOWKHAMTING GAON, P.O. SISSI
BORGAON, P.S. SILAPATHAR, DIST.- DHEMAJI, ASSAM, PIN- 787110.
VERSUS
1:THE STATE OF ASSAM AND ANR
REP. BY P.P., ASSAM.
2:AHMED ALI
S.I. DHEMAJI POLICE STATION
DIST.- DHEMAJI
ASSAM
Advocate for the Petitioner : MR. I CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
Date : 14-10-2020 Suman Shyam, J Heard Mr. I. Choudhury, learned counsel for the applicant. Also heard Ms. S. Jahan, learned Addl. P.P. Assam appearing for the State.
Page No.# 2/4 By filing this application under Section 389 Cr.P.C. 1973 the applicant has approached this Court for the second time seeking his release on bail.
The applicant was convicted by the judgment and order dated 04-07-2019 passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 127 (DH)/ 2011 and he was sentenced to inter alia undergo rigorous imprisonment for 04 years and to pay fine of Rs. 5,000/- with default clause.
By the order dated 06-08-2020 passed in I.A.(Crl.) No. 675/2019, this Court had earlier rejected the bail application of the applicant by a reasoned order.
Mr. I. Choudhury, learned counsel for the applicant submits that the witness Sri Jatin Dowari did not mention the name of his client i.e. Prasanta Bhuyan and therefore, the said aspect of the matter was not correctly dealt with in the order dated 06-08-2020. It is also the submission of Mr. Choudhury that while recording the statement of the accused under Section 313 Cr.P.C. it was not put to the applicant that he has been named by the co-accused Sri Jatin Dowari. The learned counsel submits that the trial stood vitiated on such ground alone. As such it has been prayed that the applicant be released on bail. Insofar as the first ground urged by the learned counsel is concerned the matter has been adequately dealt with by this Court in the order dated 06-08-2020. The relevant part of the observation made in the order dated 06-08-2020 is reproduced herein-below for ready reference:
"Mr. Choudhury, submits that the only incriminating material against the applicant as held by the learned Session Judge, Dhemaji that the police seized his motor cycle vide Ext. 62 used by the applicant lending support to the fact that he was involved providing assistance to the ULFA members in commission of the bomb Page No.# 3/4 blast. It is further submitted that the applicant had almost completed 1 (one) year in jail if, the post trial detention is taking into consideration and as such there being no materials against him hence the learned counsel sought for suspending the operation of sentence against the applicant and release him on bail.
Ms. Jahan, the learned Addl. P.P. on the other hand, objected the said submission of the learned counsel for the applicant. She referred to the statement under Section 164 Cr.P.C. of Sri Jatin Dowari as observed by the learned court below that on 05.08.2004 while he was at home in the evening suddenly ULFA members including "Peasanna Bhuyan" along with others threatened him on gun point and took him out from his house and reached Dhemaji College Gate. They asked to show the college field (place of occurrence). Sri Jatin Dowari accordingly, shown the college field whereafter, he was send back to the Girls Hostel Tiniali. As per Ms. Jahan the applicant is named by the co-accused Sri Jatin Dowari in his statement under Section 164 Cr.P.C. and that itself is an incriminating material showing the direct and specific act of attribution towards assisting the unlawful association for furtherance of unlawful activities by the applicant and rightly convicted by the learned court below.
We have perused the judgment, the records and specifically the statement under Section 164 Cr.P.C. of Sri Jatin Dowari and other accused persons convicted under Section 302 IPC and other provisions of law. In order to decide this application under Section 389 Cr.P.C. at this stage entering into the merits of the finding of the court below is not the requirement but to examine the incriminating materials recorded against the convicted person vis-a-vis the materials on record. As per the record Jatin Dowari was a co-accused and if the statement under Section 164 Cr.P.C. is looked into which remained unrebutted during the trial, at this stage, we are not inclined to apply discretion in favour of the applicant after considering the materials on record in the light of provisions of UA(P) Act, 1967.
Accordingly, this application is dismissed."
From the above, it is apparent that the first ground urged by the petitioner has been dealt with by this Court in the earlier order on the basis of submission advanced by the learned counsel for both parties as well as the materials available on record. Insofar as the second ground is concerned, viz. failure to pose relevant questions to the accused/ applicant while examining him under Section 313 Cr.P.C. we find that same is not even a ground taken in the main appeal. Be that as it may, the said ground was available to the applicant while the earlier bail application was moved but the learned counsel for the applicant did Page No.# 4/4 not urge the same before us.
It is the salutary principle of law that a second bail application would be maintainable only when some new ground becomes available. Mere omission to urge a ground, which was earlier available but the applicant failed to take up, cannot in our considered opinion, constitute a new/ fresh ground for filing a second bail application. Entertaining a second bail application on grounds earlier available, in our opinion, would amount to review of the earlier order passed by the Court, which would be impermissible in the eye of law.
On a specific query made by this Court as to whether he would like to examine whether any other ground can be taken up on behalf of his client, Mr. Choudhury has responded in the negative.
Under the circumstances, this Court is left with no option but to reject the prayer made by the applicant.
The I.A. is, therefore, dismissed.
This order would, however, not prevent the applicant from approaching this Court again if and when new ground for consideration of his bail application becomes available.
JUDGE JUDGE GS Comparing Assistant