Rejen Ali @ Rejen Uddin vs State Of Assam

The Court proceedings have been conducted through online court proceeding services.

Heard Mr. D. Das, learned Senior Counsel assisted by Mr. S. Khound, learned counsel for the petitioner and Mr. R.J. Baruah, learned Additional

Public Prosecutor for the respondent State of Assam.

The petitioner viz. Rajen Ali @ Rejen Uddin has approached this Court by this application for the third occasion seeking the benefit of pre-arrest

bail under Section 438, Code of Criminal Procedure, 1973, apprehending his arrest, in connection with Patharkandi Police Station Case No. 224/2020

registered for offences punishable under Sections 457/376/143/325/326/354/188/269/270, Indian Penal Code read with Section 51(a) of the Disaster

Management Act, 2005.

The first application, AB No. 1471/2020 was rejected by this Court on 17.08.2020 after perusal of the materials available in the case diary. When

the petitioner preferred his second application, AB No. 3068/2020, the same was rejected by order dated 10.11.2020.

The learned Senior Counsel for the petitioner has submitted that during consideration of the earlier two applications, no medical report/injury report

of the informant was available in the case diary. He has submitted that for consideration of the case of the petitioner, a consideration of the medical

report/injury report of the informant is vital and it is only after a combined perusal of the same and the other evidence available in the case diary, the

case of the petitioner should be considered. If nothing incriminatory material is found upon such perusal, the petitioner deserves to be granted the

benefit of pre-arrest bail.

The learned Additional Public Prosecutor has strongly objected to the submissions made on behalf of the petitioner by contending that after rejection

of two earlier applications, it is not open for the petitioner to approach the Court again agitating the same grounds. He has submitted that all the

materials in the case diary, produced on those dates, were perused by the Court and it was after due consideration of those materials, the prayer for

pre-arrest bail was rejected.

The medical report/injury report would not further the case of the petitioner.

I have considered the submissions of the learned counsel for the parties and have also perused the materials available in the case diary.

It would be apposite to extract the relevant parts of the order dated 10.11.2020 hereunder :

“3. For ready reference, the relevant parts of the order are extracted hereunder :

“3. In the First Information Report (FIR) lodged on 15.04.2020, the informant has brought the accusations in two parts. In the FIR, the informant

has named 5 (five) persons as accused with the present accused-petitioner as accused no. 1.

In the first part, the informant has stated that about 8 (eight) months ago, her husband had expired leaving her behind with three minor children. It is

alleged that since the death of her husband, the present accused-petitioner was trying to marry her in order to possess the share of land and property

of her husband. She had refused the present accused petitioner’s proposal for marriage. In one night, the present accused petitioner, armed with a

dao, entered into her room and committed rape on her forcibly. Out of fear of her life and thinking about the future of her minor children, the informant

did not disclose the incident to other persons. It is further alleged that the present accused-petitioner had also committed rape forcibly on her on 2/3

further occasions subsequently.

In the second part, the informant had alleged about an incident of assault on the mother and four brothers of the informant on 14.04.2020 with sharp

weapons in association with the other accused persons named in the FIR.

It is submitted on behalf of the accused-petitioner that when all the 5 (five) accused persons named in the FIR including the present accused-

petitioner, had approached the learned Sessions Court for bail under Section 438, CrPC, the learned Sessions Court, by order dated 15.05.2020, was

pleased to extend the benefit of pre-arrest bail under Section 438, CrPC in respect of the other 4 (four) accused persons. The learned Sessions Court

had, however, rejected the prayer of pre-arrest bail in respect of the present accused-petitioner. In such view of the matter, the learned counsel for

the accused-petitioner has submitted that the prayer for pre-arrest bail in respect of the present accused-petitioner may be allowed on the ground of

parity.

Mr. Misra, learned Additional Public Prosecutor has submitted that the case of the present accused-petitioner cannot be equated with the other

accused persons since the accusations against the present accused-petitioner are serious in nature. It is submitted by him that the other 4 (four)

accused persons were granted the benefit of pre-arrest bail as the accusations against them were with regard to the incident dated 14.04.2020 only. In

the incident dated 14.04.2020, the members of the informant’s side had sustained only simple injuries, as revealed from the injury reports available

in the case diary.

I have considered the submissions of the learned counsel for the parties and perused the materials available in the case diary. In the statements of

the informant recorded under Section 161, CrPC and under Section 164, CrPC, the informant has clearly mentioned about the forceful commission of

rape on her by the present accused petitioner on many occasions. It is stated by her that such sexual assaults on her was committed forcefully by the

present accused-petitioner with the threat to kill her. Such accusations made by the informant are also corroborated by more than 3 (three) other

witnesses whose statements under Section 161, CrPC are available in the case diary.

Upon due consideration of the nature and gravity of the allegations brought against the present accused-petitioner vis-Ã -vis the other accused

persons named in the FIR, this Court is of the considered opinion that the submission as regards parity is not sustainable. Considering the seriousness

of the allegations brought against the present accused-petitioner, this Court is of the considered opinion that in so far as the present accused-petitioner

is concerned, the benefit of pre-arrest bail under Section 438, CrPC cannot be extended. Accordingly, this bail application is rejected.â€​

In this second application, it has been averred that the police did not forward the injury report of the informant wherein it has been mentioned that

no injury was seen in her body including her private parts. It has been projected that the informant’s whole case is a concocted one.

It is settled that after rejection of an application for pre-arrest bail under Section 438, CrPC on merits, there is scope to file a subsequent bail

application for pre-arrest bail if there is change in the fact situation or in law which requires the earlier view being interfered with or where the earlier

finding has become obsolete.

Having considered the order dated 17.08.2020 which was passed upon perusal of the materials in the case diary and the new ground urged in this

application, I do not find sufficient force in the contention of the learned counsel for the petitioner for re-consideration of the earlier order dated

17.08.2020.â€​

The First Information Report (FIR) was lodged before the In-Charge, Baraigram Police Post on 15.04.2020 and the Officer In-Charge, Patharkandi

Police Station registered the case on 16.04.2020. The medical examination of the informant was conducted only on 22.04.2020 which was much after

the date of institution of the FIR on 15.04.2020. The medical examination report is available in the case diary and therein the concerned Doctor who

did the medical examination, had recorded about the incident, as narrated by the informant. The informant before the Doctor like in the FIR, did not

allege any incident of rape on her on 14.04.2020. In view of the same, the contentions advanced on behalf of the petitioner as regards relevance of the

medical examination report/injury report of the informant appears to have no relevance in the face of the observations already made by this Court in

the order dated 17.08.2020 (supra) and the order dated 10.11.2020 (supra) as regards the inculpatory statements of the informant and other witnesses

against the petitioner.

In view of the same, I find no merit in this application, preferred for the third occasion, for pre-arrest bail and accordingly, the same stands

dismissed.