Gauhati High Court
Ghanshyam Sarda vs The State Of Assam on 9 August, 2017
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
AB No. 1517 of 2017
BEFORE
THE HON'BLE MR. JUSTICE HITESH KUMAR SARMA
:: O R D E R ::
09-08-2017 This order is passed on the application under Section 438 of the Code of Criminal Procedure filed by the petitioner, Sri Ghanshyam Sarda, who apprehends arrest in connection with Paltanbazar P.S Case No. 868/2014 for the offences under Section 120B/468/420/471/379 IPC.
2. Shorn of necessary details, the facts leading to the Paltanbazar P.S Case No. 868/2014 are that one Tez Narayan Thakur, Director of the Abhyudya Trading Company, Guwahati, lodged a written FIR with the Officer in Charge, Paltanbazar Police Station, alleging that he had acquired 11,410 nos. shares in Jatia Cotton Mills, of which the petitioner is one of the Directors. The principal allegation of the informant, as against the petitioner and few others, is that all the accused persons, including the petitioner herein and accused, Saurabh Banerjee, hatched a conspiracy to deprive the informant of his ownership over said 11,410 nos. shares in Jatia Cotton Mills, by creating forged documents thereby showing transfer of shares, standing in the name of the informant, in the name of accused Saurabh Banerjee. The informant alleges that he had never transferred any shares to any persons and hence by committing the acts of conspiracy the petitioner along with others have committed the offence as alleged.
3. It may be mentioned here that prior to this petition there was another application filed under Section 438 CrPC vide AB No. 811/2017 in which, by order dated 26.04.2017, an order for interim bail was passed. However, when the said bail application came up for final hearing it was noticed that the petitioner has not sworn the affidavit in person rather; one Sri Bibhash Chatterjee had sworn the affidavit. On this technical aspects the application for pre-arrest bail was held to be not maintainable and the interim order was vacated.
4. After the present application was filed, interim bail was granted to the petitioner, vide order, dated 25.07.2017, directing that in the event of arrest the petitioner shall be released on bail bond of Rs 40,000/- with two sureties each of like amount. Vide order dated 25.7.2017 the case diary was also called for.
Page 1 of 4 AB No. 1517 of 20175. The case diary has been produced by the learned Additional Public Prosecutor, for the State. I have gone through the case diary.
6. Heard Mr. Diganta Das, learned senior counsel for the petitioner and Mr. N.K. Kalita, learned Additional Public Prosecutor, for the State. Also heard Mr. C.P. Sharma, Mr. A Deka and Mr. HK Das, learned Counsel for the informant.
7. Learned counsel for the informant raised a preliminary objection on the point of maintainability of the instant anticipatory bail petition in view of the fact that no application was preferred before the Sessions Court, before approaching this Court. He also referred to an order of this Court, passed on 01-09-2015, in Case No. AB 2332/2015. In the said order, this Court directed the petitioner of that application to approach the Court of learned Sessions Judge.
8. I have appreciated the submissions of learned Counsel for the informant, however, I am not inclined to go into the aspect of maintainability because the instant bail application was already heard on merits by a co-ordinate Bench and an interim order was passed. It would not be proper, now, to revert to the aspect of maintainability that no application was preferred before the Court of Session.
9. Coming, now, to the merit of the case learned senior counsel for the petitioner, while placing reliance on various litigations between the parties, urged upon the Court that dispute is essentially civil in nature and that the transfer of shares by the informant is pending adjudication in Company Law Board, Kolkata.
10. It is found to be an admitted position, during the course of hearing, that the informant of this case has filed an application, vide C.P. No. 4/13, under Sections 235, 397, 398, 399, 402 and 403 of the Companies Act against Jatia Cotton Mills, among others. The issue raised in the FIR, under consideration, and the issue raised in the C.P. No. 4/13 are identical. In fact, perusal of the FIR, in the present case, shows that it is perhaps a replicated copy of certain petition filed by the informant before Company Law Board.
11. I have consulted the case diary in this regard, which reveals that petitioner had also responded to notices issued by the Investigating Officer under Section 41 of the CrPC.
Page 2 of 4 AB No. 1517 of 201712. I may point that offences under which the case has been registered attract a maximum penalty of 7 years imprisonment.
13. Section 41 of CrPC provides that any police officer may, without an order from a Magistrate and without a warrant, arrest any person involved in a cognizable offence. However Section 41(1)(b) provides that if the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine, an arrest shall be made only if the following conditions are satisfied, namely:--
(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary--
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) unless such person is arrested, his presence in the Court whenever required cannot be ensured.
14. Section 41A CrPC further provides that if the Police Officer is not effecting any arrest u/s 41(1) CrPC, he shall issue a notice directing the accused to appear before him. Now, if the person, to whom notice has been issued appears before the Investigating Officer the person shall not be arrested unless for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.
15. The case diary does not reveal that there is any apprehension of abscondence of the petitioner or that the petitioner is not co-operating with the Investigating Officer. The nature of allegations against the petitioner is such that his arrest is subject to the fulfillment of conditions mentioned in Section 41(1) CrPC and Section 41A CrPC.
16. Hence, considering that the dispute raised in the FIR is also pending adjudication before a civil authority and also considering that the fate of this case would much depend of documentary evidence, I find that custodial interrogation of Page 3 of 4 AB No. 1517 of 2017 the petitioner is not necessary. Hence the interim bail granted, vide order dated 25.07.2017, is hereby made absolute with following conditions;
(i) that the petitioner shall make himself available for interrogation by a police officer as and when required;
(ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) that the petitioner shall produce all documents, in his possession and power, before the Investigating Officer as and when called for.
17. With the aforesaid directions, this pre-arrest bail application stands disposed of.
18. Return the case diary.
JUDGE Paul Page 4 of 4 AB No. 1517 of 2017