Biswajyoti Deb Roy v. The State of Assam

ORDER Date : 23-08-2023 Heard Mr. D.P. Borah, learned counsel for the applicant and also heard Ms. S.H. Borah, the learned Addl. Public Prosecutor, for the State respondent.

¶2Apprehending arrest in connection with Ramkrishna Nagar P.S. Case No.90/2023, under section 409 IPC, this application, under Section 438 of Cr.P.C., is preferred by applicant Sri Biswajyoti Debroy, Secretary of Page No.# 2/6 Gandhigram GPSS, for grant of pre-arrest bail.

¶3It is to be noted here that the above noted case has been registered on the basis of one FIR lodged by one Shamshul Hoque Mazarbhuyan, Inspector, Food Civil Supplies & Consumer Affiars, Karimganj, on 12.06.2023.

¶4The brief fact leading to registration of above noted case is that the complainant had received a complaint from one Saurav Das against the applicant on following counts:-

(i) That the applicant, being the Secretary of Gandhigram GPSS, he used to run the Society without a joint account in the name of the President and Secretary and used to operate the account himself;

(ii) The office of the Society is being operated from his own residence, causing inconvenience to the general public;

(iii) He used to take Rs. 13/ to 14/ per quintal rice from the dealers;

(iv) He used to take 650 grams of NFSA rice, per bag from the dealers;

(v) He never issued commission of Mid day meal rice to the dealers;

(vi) He used to take Rs.13/ per quintal from the Agents as carrying charge; Accordingly, the complainant and one Sanjoy Goswami, Inspector, Food Civil Supplies & Consumer Affairs, Karimganj visited Gandgigram GPSS to ascertain the veracity of the said complaint and he found prima-facie case of violation of Clauses 14,19,20, and 26 of Assam Public Distribution Articles Order, 1982 and also violation of terms and condition of Licence and commission of criminal breach of trust, against the applicant.

¶5Mr. D.P. Borah, learned counsel for the applicant submits that the applicant is innocent and no way involved in the offence alleged in the FIR. Mr. Page No.# 3/6 Borah further submits that the original complainant, namely, Saurav Das is not a resident of under the jurisdiction of Gandhigram GPSS, and despite he was allowed to contest in the election for the post of Member of the Board of Directors of the GPSS and he got elected and selected as Chairman and the same was approved by the Registrar, Co-operative Societies on 01.06.2023, and against the said election, one Member of the GPSS initiated a Writ Proceeding before this court being WP(C) No. 2439/2023, wherein, the petitioner was directed to filed one representation before the Registrar, Cooperative Societies and till disposal of the said representation, the department officers were directed to run the Society. Though the said writ petitioner had filed one representation, yet, he had withdrawn the same subsequently. Subsequently, two more Writ Petitions were filed before this court wherein the Registrar was directed not to grant approval to the newly elected body. Mr. Borah further submits that subsequently, Saurav Dutta and ten other lodged the complaint with mala-fide intention against the applicant and the allegations are totally false and the applicant is no way involved with the offence and that there is no bar in running the Office of the Society from his residence and always there is shortage of rice, to the extent of 1-2 kg per bag and that he is ready to co-operate with investigating agency and his custodial interrogation is not required and therefore, Mr. Borah contended to allow this petition.

¶6Per contra, Ms. S.H. Borah, the learned Addl. P.P. has vehemently opposed the petition. Producing the Case Diary before this court Ms. Borah submits that the I.O. has collected prima facie materials to show complicity of the applicant with the offences alleged in the FIR. Ms. Borah, further submits that investigation is going on and the applicant is absconding and enlarging him pre-arrest bail will hamper the investigation as the applicant is an influential person Page No.# 4/6 of the said locality. Therefore, it is contended to dismiss this petition.

¶7Having heard the submission of learned Advocates for both the sides, I have carefully gone through the petition and the documents placed on record and also perused the case diary with the assistance of Ms. Borah, learned Addl. PP.

¶8It is to be mentioned here that in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, reported in (2011) 1 SCC 694, specially to para 112, Hon'ble Supreme Court had laid the parameters to be taken into consideration by the Court, while granting anticipatory bail, which are as follows: "122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution Page No.# 5/6 because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

¶9It appears from the case diary that the I/O has collected sufficient incriminating materials in support of the allegation made in the FIR. The applicant has been running the Society from his residence and the witnesses, examined so far, implicated him with the allegations so made in the FIR. Investigation is going on and the applicant has been absconding. It also appears from the materials collected in the Case Diary that the applicant has been operating single bank account and on several occasions he had transferred money from the account of the Society to his name.

¶10Having considered aforementioned facts and circumstances, and also having considered the nature and gravity of the offence, and the punishment prescribed for the same, as well as the submission of learned Advocates for both the sides, and also in view of the observation, so made in the case of Siddharam Satlingappa Mhetre (supra) as discussed herein above, this Court left unimpressed by the submission of Mr. Borah, learned counsel for the applicant that custodial detention of the applicant is not warranted in this case. Page No.# 6/6 His custodial interrogation is necessary in the interest of investigation. Accordingly, striking a balance between the individual right of the applicant and that of the societal interest, this Court is of the view that this is not a fit case where the privilege of pre arrest bail can be extended to the applicant and therefore, the petition stands rejected. The case diary be returned. JUDGE Comparing Assistant

Page No.# 1/6 GAHC010162062023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/2567/2023 BISWAJYOTI DEB ROY S/O- LATE BISHNUPADA DEB ROY, VILLAGE- GANDHI NAGAR, P.O. NETAJINAGAR, P.S. RAM KRISHNA NAGAR, DIST.- KARIMGANJ, ASSAM, PIN- 788166 VERSUS THE STATE OF ASSAM REP. BY THE P.P., ASSAM Advocate for the Petitioner : MR. D P BORAH Advocate for the Respondent : PP, ASSAM BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN