Marofat Ali and Anr v. The State of Assam

ORDER Date : 18.12.2023

Heard Mr. M. Islam, learned counsel for the petitioners. Also heard Mr. B. Page No.# 2/4 Sarma, learned Additional Public Prosectuor, appearing for the State respondent.

¶2The petitioners, namely, 1. Marofat Ali, 2. Rofikul Islam, have filed this application under section 438 Cr.P.C., with a prayer for pre arrest bail in connection with Kharupetia PS Case No.358/2022 under sections 366/307/420/306/34 IPC.

¶3I have given my anxious consideration to the submissions at the bar and I have also perused the case diary.

¶4The FIR unfolds that the deceased had a love relationship with the accused No.1 and he took her away to his house. After the deceased reached his house, the other petitioners tried to set her ablaze by dousing her with kerosene. Then the deceased raised alarm and the petitioners assaulted her. The neighbourers rescued the deceased and the public handed over the deceased to her parents. The deceased was 17 months short of 18 years and so the public assured to solemnize her marriage with the accused No.1 named in the FIR after the deceased would attain majority. When the deceased was about to complete 18 (eighteen) years, the accused No. 1 at the behest of his family members refused to marry the deceased and he suggested that the deceased could consume poison. The deceased then sank into depression and she committed suicide.

¶5It is submitted on behalf of the petitioners that they are in no way involved with the death of the deceased. No offence under section 306 IPC could be made out through the FIR. The petitioners have also relied on the decision of the Hon'ble Supreme Court in Kashibai & Ors Vs. the State of Karnataka in

(2023) LiveLaw SC 149, wherein it has been held as follows: "44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on Page No.# 3/4 the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

¶45The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide."

¶6The learned Addl. PP has submitted that the statements of the witnesses and the suicide note of the victim clearly incriminates the petitioners.

¶7I have perused the case diary.

¶8Admittedly the accused No. 1 was engaged to the victim. The petitioners have denied that their conduct can be considered as abetment to commit suicide. There is no direct allegation that they have abetted the victim to commit suicide.

¶9I have perused the case diary and the statement of witnesses under section 161 Cr.P.C.

¶10The nitty gritties of the evidence is filtered at this juncture. This Court is not seized of the matter like deciding an appeal to take into consideration the ingredients required to prove offence under section 306 IPC. No prima facie case, admitting the petitioner to bail has been made out.

¶11It cannot be ruled out that no overt act could be attributed to the petitioners. A provision under section 438 Cr.P.C., cannot be exercised in an untrammeled manner. Page No.# 4/4

¶12The petitioners are booked under a grave offence. It appears that investigation may be adversely affected if the petitioners are insulated by an order of bail under section 438 Cr.P.C.

¶13In view of my foregoing discussions, it is held that there appears to be no justified ground to extend the privilege of pre arrest bail to the petitioners at this stage of investigation. Petition is accordingly rejected. Send back the case diary.

AB stands closed in the above terms. JUDGE Comparing Assistant

Page No.# 1/4 GAHC010196702023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/3044/2023 MAROFAT ALI AND ANR S/O LATE JOBBAR ALI VILL- KHAKJANI P.S. KHARUPETIA DIST. DARRANG, ASSAM 2: ROFIKUL ISLAM @ RAFIKUL S/O MAROFAT ALI VILL- KHAKJANI P.S. KHARUPETIA DIST. DARRANG ASSA VERSUS THE STATE OF ASSAM REP. BY THE LEARNED PP, ASSAM Advocate for the Petitioner : MR. M ISLAM Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND