Sh. Kali Kumar Tongchangya v. The State of Mizoram

ORDER B E F O R E HON'BLE MR. JUSTICE NELSON SAILO

28.06.2023 Heard Mr. Roshan Subedi learned counsel for the petitioner who submits that by filing this application under Section 438 Cr.P.C, the petitioner prays for pre-arrest bail as he apprehends that he may be arrested in connection with ACB Case No. 2/2021 dated 14.04.2021 under Section 120(B)/409/420 IPC read with Section 13(1)(a)

(b)/13(2) of the Prevention of Corruption Act, 1988. On 26.06.2023, Court passed the following order:-"Heard Mr. B. Lalramenga, learned counsel for the petitioner, who submits that by filing this application under Section 438 Cr.PC, the petitioner prays for anticipatory bail since he apprehends his arrest in connection with ACB Case No. 2/2019 dated 24.09.2019. The learned counsel submits that the ACB has concluded their investigation and Charge-sheet has been filed. The matter is due to come up for consideration of charge before the Trial Court concerned on 27.06.2023 and therefore, the petitioner prays that he be granted anticipatory bail. It is noticed that the petitioner had earlier sought for anticipatory bail before the learned Special Judge, Prevention of Corruption Act, Aizawl through Anticipatory Bail Application No. 4/2023 and the same was rejected vide Order dated 23.03.2023. Despite such rejection, the petitioner has not been arrested and explanation to that is made by the petitioner that it was only due to the 11th Chakma Autonomous District Council election that such steps was not taken. He otherwise submits that the petitioner has all along been cooperating with the investigation. Page No.# 3/4 In view of above, issue notice. Mrs. Linda L. Fambawl, learned Addl. Public Prosecutor accepts notice. List the matter again along with A.B No. 7/2023." Today when the matter is listed, the learned counsel for the petitioner has drawn the attention of this Court to paragraph No. 6(viii) of the application and submits that since the charge-sheet has been filed, the petitioner has reason to believe that he will be arrested. Ms. Mary L Khiangte, learned Addl. Public Prosecutor submits that since the investigation is completed and the charge-sheet has been submitted by the investigating authority, it is now up to the Court whether or not to put the petitioners under judicial custody. Section 438 of the Cr.P.C provides as follows:-"438. Direction for grant of bail to person apprehending arrest.---[(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:--

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; Page No.# 4/4

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested." From a perusal of the above abstract, it may be seen that when a person has reason to believe that he may be arrested on the accusation of having committed a non-bailable offence, he may apply to the High Court or Court of Session for pre-arrest bail and the same may be granted by the Court upon considering the nature and gravity of the accusation, the antecedents of the applicant, pass conviction, if any, possibility of the applicant flee from justice, etc. Merely because charge-sheet has been filed and the matter has been fixed before the Trial Court for delivery of documents, it cannot be presumed by the petitioner that he may be arrested. According to the learned counsel for the petitioner, two other co-accused persons have been granted Anticipatory Bail by the learned Special Judge, PC Act, Aizawl vide Order dated 24.03.2022 passed in Anticipatory Bail Application No. 1/2022 and therefore, a similar benefit may be given to the present petitioners. It may, however, be seen that despite the Anticipatory Bail application also filed by the present petitioner i.e., Anticipatory Bail Application No. 4/2023 before the learned Trial Court being rejected on 23.03.2023 the petitioner has not been arrested till now. Therefore, I do not find any substance in the apprehension projected by the petitioner that he will be arrested so as to grant them Anticipatory Bail. Accordingly, the petition stands rejected and disposed.

JUDGE Comparing Assistant

Page No.# 1/4 GAHC030003372023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Linked Case : AB/8/2023 Sh. Kali Kumar Tongchangya S/o Kegera Tongchangya R/o H.No. 51 Bilosora Lawngtlai District Mizoram. VERSUS The State of Mizoram Aizawl Advocate for the Petitioner : Mr B Lalramenga Advocate for the Respondent : P.P./Addl.PP Mizoram Page No.# 2/4