Gauhati High Court
Dwijen Patgiri vs The State Of Assam on 29 September, 2021
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
Page No.# 1/18
GAHC010156992021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./2488/2021
DWIJEN PATGIRI
SON OF LATE HARMOHON PATGIRI, R/O VILL- MUGURIA, P.S.
PATACHARKUCHI, DIST. BAJALI, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR J BORAH
Advocate for the Respondent : PP, ASSAM
Linked Case : Bail Appln./2492/2021
APURBA KR. CHOUDHURY
S/O- LT. SURYA KR. CHOUDHURY
R/O- PATHSALA
WARD NO.3
P.S. PATACHARKUCHI
DIST.- BAJALI
ASSAM
PIN- 781325
VERSUS
THE STATE OF ASSAM
Page No.# 2/18
REP. BY P.P.
ASSAM
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Advocate for : MR J BORAH Advocate for : PP ASSAM appearing for THE STATE OF ASSAM Linked Case : Bail Appln./2493/2021 BUDUL TALUKDAR @ BUBUL TALUKDAR S/O LATE SIBA NATH TALUKDAR R/O WARD NO. 1 PATHSALA TOWN P.S. PATACHARKUCHI DIST .BAJALI ASSAM.
VERSUS THE STATE OF ASSAM REPRESENTED BY PP ASSAM.
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Advocate for : MR J BORAH Advocate for : PP ASSAM appearing for THE STATE OF ASSAM Linked Case : Bail Appln./2491/2021 MANTU CHOUDHURY S/O SRI PABAN CHOUDHURY R/O VILL- BARBARI JOYPUR P.S. PATACHARKUCHI DIST. BAJALI ASSAM VERSUS Page No.# 3/18 THE STATE OF ASSAM REP. BY THE PP ASSAM
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Advocate for : MR J BORAH Advocate for : PP ASSAM appearing for THE STATE OF ASSAM Linked Case : Bail Appln./2490/2021 NURUL ISLAM @ NUR ISLAM S/O LATE MANTAJ ALI R/O VILL. ISLAMPUR PATHSALA TOWN P.S. PATACHARKUCHI DIST. BAJALI ASSAM.
VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP ASSAM.
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Advocate for : MR J BORAH Advocate for : PP ASSAM appearing for THE STATE OF ASSAM Linked Case : Bail Appln./2489/2021 CHAMPAK SARMAH S/O- LT. KANDARPA SARMAH R/O- VILL- MUGURIA P.S. PATACHARKUCHI DIST.- BAJALI ASSAM Page No.# 4/18 VERSUS THE STATE OF ASSAM REP. BY P.P. ASSAM
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Advocate for : MR J BORAH Advocate for : PP ASSAM appearing for THE STATE OF ASSAM Linked Case : Bail Appln./2467/2021 KAMESWAR TALUKDAR AND 4 ORS S/O LATE PRIYA NATH TALUKDAR R/O WARD NO. 4 MILANPUR PATHSALA P.S. PATACHARKUCHI DIST. BAJALI ASSAM 2: MUKUL CH. SARMAH @ MUKUL SARMAH S/O LATE AMBIKA PRASAD SARMAH R/O WARD NO. 3 PATHSALA P.S. PATACHARKUCHI DIST. BAJALI ASSAM 3: BHABESH KALITA S/O LATE NARESWAR KALITA VILL- KUWARA P.S. PATACHARKUCHI DIST. BAJALI ASSAM 4: NARENDRA NATH GOSWAMI S/O SRI BONGSHIDHAR GOSWAMI R/O WARD NO. 5 SARIHA SATRA PATHSALA P.S. PATACHARKUCHI Page No.# 5/18 DIST. BAJALI ASSAM 5: MADAN KHATANIAR S/OLATE RAM MOL KHATANIAR VILL- WARD NO. 9 AKASHI PATH PATHSALA P.S. PATACHARKUCHI DIST. BAJALI VERSUS THE STATE OF ASSAM REP. BY THE PP ASSAM
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Advocate for : MR. N K KALITA Advocate for : PP ASSAM appearing for THE STATE OF ASSAM BEFORE HON'BLE MR. JUSTICE HITESH KUMAR SARMA 29-09-2021 Bail application nos. Petitioners' name
(i) B.A. No.2488 of 2021 - Dwijen Patgiri
(ii) B.A. No.2489 of 2021 - Champak Sarmah
(iii) B.A. No.2490 of 2021 - Nurul Islam @ Nur Islam
(iv) B.A. No.2491 of 2021 - Mantu Choudhury
(v) B.A. No.2492 of 2021 - Apurba Kr.Choudhury
(vi) B.A. No.2493 of 2021 - Budul Talukdar @ Bubul Talukdar Page No.# 6/18
(vii) B.A.No.2467 of 2021-(a) Sri Kameswar Talukdar,
(b) Sri Mukul Ch. Sarmah @ Mukul Sarmah,
(c) Sri Bhabesh Kalita,
(d) Sri Narendra Nath Goswami, and
(e) Sri Madan Khataniar;
The above bail applications are taken up together for order as all these applications have arisen out of the same FIR and the petitions mostly contain nearly similar pleas seeking bail of the petitioners in connection with Patacharkuchi P.S. Case No.479/2021, registered under Sections 120(B)/420/409/ 467/468/471 of the Indian Penal Code, read with Section 7/7A/12 of the Prevention of Corruption Act.
The petitioners in the bail applications at serial No.(i) to (vi) above are represented by learned counsel Mr. A.D. Choudhury, and Mr. J. Borah. The petitioners in bail application at serial No.(vii) is represented by Mr. N.K. Kalita, learned counsel.
I have heard the respective learned counsel for the petitioners and also heard the common argument of Mr. M. Phukan, learned Public Prosecutor, Assam appearing for the State Respondent.
To understand the allegations against the petitioners, this Court would Page No.# 7/18 like to quote the FIR filed by the Deputy Commissioner, Bajali, dated 20.09.2021, which reads as under :
" With reference to the subject cited above, it is informed that the Revenue Circle offices are most important field level government offices which maintain record of lands belonging to government and private pattadars. These offices provide various citizen centric service like mutation, partition of land, issuing land holding certificates, land pattas processing of No-Objection certificates for land sale, etc. These services are very essential for general public without which their land transmission will be held up.
In order to strengthen the Revenue administration in the State of Assam, the Government had taken several initiatives. While addressing in the conference of ADC (Rev.), Circle Officers and attached Circle officers Hon'ble Chief Minister, Assam strictly warned against any sort of irregularities and corrupt practices in the Revenue Circles.
In view of the above, the undersigned request you to investigate against 17 (seventeen) brokers as indicted in the list enclosed with the letter under reference regarding alleged irregularities and corrupt practices and to book as per provisions of law.".
On receipt of the above FIR, the Superintendent of Police, Bajali, forwarded the same to the Officer-in-Charge of Patacharkuchi Police Station on the same day i.e. on 20.09.2021 with instruction to register a case. The letter containing the above instructions is reproduced below for Page No.# 8/18 better understanding and appreciation :
" In enclosing herewith a copy of letter in original received from Shri Bharat Bhushan Dev Choudhury, IAS, Deputy Commissioner of Bajali District which will speak for itself.
Henceforth, you are hereby directed to register a case under proper section of law against all 17 (seventeen) numbers of land brokers as indicated in the list and investigate the case as per proper procedure of law. The action taken from your end may intimate to the undersigned within 2 (two) days for further necessary instructions. The list of 17 (seventeen) numbers of land brokers is enclosed herewith. The matter is MOST URGENT."
Learned counsel for the petitioners have submitted that the FIR itself does not disclose any cognizable offence as required under Section 154 of the Code of Criminal Procedure and, therefore, the case could not have been registered by the police. It has further been submitted that in the instant case, taking into account the fact that cognizable offence has not been disclosed in the FIR, the accused petitioners could not have been arrested. Learned counsel for the petitioners have also referred to the guidelines contained in the case of Lalita Kumari Vs. Government of Uttar Pradesh, reported in (2014) 2 SCC 1, in paragraphs 120.1 to 120.6 therein, which are reproduced below :
120.1. Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in Page No.# 9/18 such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/ family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases Page No.# 10/18
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry."
There is no denial of the fact that there is any instance on record to show that any preliminary enquiry was made in the light of the decision in Lalita Kumari (supra) .
Learned counsel for the petitioners have also referred to the order dated 24.9.2021 passed by a Coordinate Bench of this Court in Criminal Petition No.522/2021 and has submitted that in the said order, it has been observed as follows :
" After going through the materials available on record, I find that based on an F.I.R., although a case has been shown to have been registered against the petitioners under Sections 120(B)/420/409/467/468/471 IPC read with Sections 7/7(A) of the PC Act, yet, the F.I.R. and the other materials available on record prima-facie do not disclose any ingredients of offences committed under those provisions of the IPC. It is also not clear as to the nature of allegations brought against the petitioners."
It deserves mention here that Mr. N.K. Kalita, learned counsel for the petitioner in B.A. No.2467/2021, has adopted the above argument made by the learned counsel for the petitioners in the bail applications at serial No.(i) to (vi) above with additional submissions that the contents of the FIR and the letter of the Superintendent of Police to the Officer-in-Charge Page No.# 11/18 of Patacharkuchi Police Station instructing for registration of the case discloses different version of the facts. According to him, while lists of 17(seventeen) persons were forwarded to the Superintendent of Police by the Deputy Commissioner along with the FIR stating that while addressing a conference of the Additional Deputy Commissioner (Revenue), Circle Officers and the attached Circle Officers, the Hon'ble Chief Minister of Assam had strictly warned against any sort of irregularities which used to provide services like mutation, partition of land, issue of land record certificates etc. and by the FIR requested to investigate against 17(seventeen) brokers, as indicated in the list annexed therewith. However, as submitted, the investigating officer has mentioned in the report forwarding the accused to the Court that the FIR mentions about regular complaints, media reports and source information received from time to time that large scale irregularities and corrupt practices in the Revenue Offices and several middleman and unauthorized intermediaries are operating in the Circle Offices demanding bribes from innocent public in order to get the services delivered. By such submission, the learned counsel for the petitioners Mr. Kalita, has tried to impress upon this Court that there is manipulation and exaggeration in respect of accusation and allegations made against the petitioners in the forwarding report as such facts indicated therein are in complete deviation from the contents of the FIR. One of the argument made by the learned counsel for the petitioners in B.A. No.2492 of 2021 is to the effect that he is a patient suffering from cardiac problem and he has submitted a diagnostic report from EXCELCARE Hospital, and the final impression, after diagnosis, is to the effect that -'Right Bundle Branch Block, Left Anterior Fascicular Page No.# 12/18 Block'. The date of the diagnosis is 9.9.2021, i.e. prior to the date of his arrest in the instant case. On perusal of the medical papers furnished, it is found that the petitioner Apurba Kr. Choudhury, in the aforesaid B.A. No.2492 of 2021, has been really suffering from heart problems, as indicated above.
Learned counsel for the petitioners in aforesaid bail applications at serial No.(i) to (vi) above has also submitted that the manner of registration of the case and arrest of the petitioners is in gross violation of Article 21 of the Constitution of India. According to him, every moment spent by the petitioners in custody is a blatant violation of his right to liberty for the reasons that they are arrested and put in custody without there being a prima facie cognizable offence made out against them in the FIR itself. It has further been argued that although the case has been registered inter alia under the above sections of law, yet there is no material to indicate either in the FIR or in the forwarding report that any of the provisions of Sections 7/7A and 12 of the Prevention of Corruption Act are applicable in the instant case in the absence of any material of the public servant being bribed or that undue advantage was taken by the petitioners to influence the public servant by corrupt and illegal means and also of abatement of such offence.
Resisting such submissions and vehemently opposing the prayer for bail of the petitioners, Mr. Phukan, learned Public Prosecutor has submitted that an FIR is not an encyclopedia requiring to reflect every details, rather, according to him, it is with a view to set the investigating machinery to motion, and to substantiate his such argument, he has Page No.# 13/18 referred to the decision of the Hon'ble Supreme Court in State of Uttar Pradesh Vs. Krishna Master and others , reported in (2010) 12 SCC 324, particularly paragraph-66 thereof, which is quoted below :
"66. As far as this aspect is concerned, this Court notices that the FIR need not be an encyclopedia of all the facts and circumstances on which the prosecution relies. The main purpose of the FIR is to enable a police officer to satisfy himself as to whether commission of cognizable offences is indicated so that further investigation can be undertaken by him. The purpose of the FIR is to set the criminal law in motion and it is not customary to mention every minute detail of the prosecution case in the FIR. FIR is never treated as a substantive piece of evidence and has a limited use, i.e., it can be used for the corroborating or contradicting the maker of it."
In this context, he has also referred to the decision in Kirender Sarkar & Ors vs State Of Assam, reported in (2009) 12 SCC 342, wherein the Hon'ble Supreme Court in para-11 held as follows :
"11. The law is fairly well settled that FIR is not supposed to be an encyclopedia of the entire events and cannot contain the minutest details of the events. When essentially material facts are disclosed in the FIR that is sufficient. FIR is not substantive evidence and cannot be used for contradicting testimony of the eye witnesses except that may be used for the purpose of contradicting maker of the report. Though the importance of naming the accused persons in the FIR cannot be ignored, but Page No.# 14/18 names of the accused persons have to be named at the earliest possible opportunity.".
He has further referred to the decision in Alagarsamy & Ors vs. State By Deputy Superintendent Of Police, Madurai reported in (2010) 12 SCC 427, in para 39, to impress this Court on the issue that the FIR is not a be-all and end-all of the matter, wherein it has been held as follows :
"39. After all, the FIR is not a be-all and end-all of the matter, though it is undoubtedly, a very important document. In most of the cases, the FIR provides corroboration to the evidence of the maker thereof. It provides a direction to the Investigating Officer and the necessary clues about the crime and the perpetrator thereof. True it is that a concocted FIR, wherein some innocent persons are deliberately introduced as the accused persons, raises a reasonable doubt about the prosecution story, however, a vigilant, competent and searching investigation can despoil all the doubts of the Court and on the basis of the evidence led before the Court, the Court can weigh the inconsistencies in the FIR and the direct evidence led by the prosecution. It is not a universal rule that once FIR is found to be with discrepancies, the whole prosecution case, as a rule, has to be thrown. Such can never be the law."
In the light of the submissions made by the respective learned counsel for the petitioners, this Court would like to decide the bail prayers of the petitioners on merit on the basis of the materials available/placed before Page No.# 15/18 this Court. So far the legal issues raised, as indicated above, suffice it to say that this Court is dealing with applications for bail and not a proceeding for quashment challenging legality of the FIR itself. Therefore, this Court would confine itself to the materials in the case diary vis-à-vis the FIR for consideration of the prayers for bail of the petitioners.
On perusal of the case diary, it is found that certain documents/papers were seized from different petitioners, as indicated below against their respective names :
(1) Apurba Kr. Choudhury - seizure of eight (8) numbers of agreement (Baina Patras) on Non-Judicial Stamp Papers and several land documents/sale deeds, affidavit, etc. and several pass books of different banks.
(2) Mantu Choudhury - seizure of three original agreements (Baina Patras) and one Xerox copy of Baina Patra (agreements) with blank applications for NOC for transfer of immovable properties with photos and signed affidavits, original sale deeds.
(3) Budul Talukdar @ Bubul Talukdar - seizure of several passbook of different banks.
(4) Kameswar Talukdar - seizure of several original deeds on non-
judicial stamp papers.
(5) Mukul Chandra Sarmah - there is seizure of ten land sale deeds made on Non-Judicial Stamp Papers, two nos. of pass books and other land related documents.
Page No.# 16/18 (6) Bhabesh Kalita - seizure of several stamp papers, General Power of Attorney and one bank passbook.
(7) Narendra Nath Goswami - There is seizure of Rs.5,76,000/- along with certain other documents and some stamp papers and other documents relatable to transfer of land.
(8) Madan Khataniar- seizure of several original deeds made on Non-
Judicial Stamp paper pertaining to transfer of land.
Similar kind of papers/documents pertaining to transfer of lands were seized from other co-accused, namely, Dwijen Patgiri, Champak Sarmah, and Nurul Islam @ Nur Islam.
There is no instance in the case diary to indicate that these seized documents are not legal or were executed by practicing fraud etc. The seizure witnesses have subscribed to the seizures only and, on merit of the facts, they are not found to have made any statement. There is also no material in the case diary to indicate that the aforesaid documents/papers, bank pass books etc. seized were illegal or procured by any means not approved by law. There is also no instance found in the case diary, as of now, that the petitioners had bribed or influenced some public servant and no public servant is found to have been named in the instant case to have been involved with such offences. On the other hand, the FIR contains only vague and unspecific allegation. There is also no material on record to indicate that any person has made specific complaint against the petitioners in respect of commission of offences punishable under the provisions of law under which the case has been registered.
Page No.# 17/18 On perusal of the entire materials in the case diary, as indicated above, this Court finds that the petitioners deserve to be granted bail in the absence of specific accusation with materials subscribing such accusation at this moment. In view of the above, in the considered view of this Court, the petitioners are entitled to grant of bail.
Accordingly, the accused-petitioners, named above, shall be released on bail in connection with the case aforementioned on their furnishing bail bond of Rs.30,000/- each with one suitable surety each of the like amount, to the satisfaction of learned Special Judge, Assam.
The direction for bail is further subject to the conditions that the accused-petitioners :
(a) shall not leave the territorial jurisdiction of learned Special Judge, Assam, without prior written permission from him;
(b) shall not hamper with the investigation, or tamper with the evidence of the case;
(c) 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.
(d) shall during the continuation of the investigation, the petitioners shall not meet/communicate with any of the witnesses of the case, in any manner.
This Court would like to make it clear that the order granting bail to the petitioners is made on the basis of the materials available in the case Page No.# 18/18 diary in respect of individual petitioner and, therefore, shall not be treated as a precedent for other accused.
In terms of the above, this bail application stands disposed of.
Return the case diary.
JUDGE Comparing Assistant