Gauhati High Court
Page No.# 1/8 vs The State Of Assam on 1 December, 2023
Page No.# 1/8
GAHC010269192023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./4353/2023
SUMIT BOSE AND ANR
S/O SHYAMAL BOSE
R/O BARMANPAA, P.O. AND P.S.MANKACHAR,
DIST. SOUTH SALMARA, ASSAM
2: SUNIL DAS
S/O RAMESH DAS
R/O HOUSE NO. 2
MANDAKINI PATH
UZANBAZAR
DIST. KAMRUP (M)
ASSA
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR. D GOGOI
Advocate for the Respondent : PP, ASSAM
BEFORE
HON'BLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
01.12.2023 Heard Mr D Gogoi, learned counsel for the petitioners, 1) Sumit Bose and Page No.# 2/8
2) Sunil Das.
2. The petitioners have filed this application under Section 439 Cr.PC, with prayer for bail as they are in jail since 14.09.2023, in connection with Dispur P.S. FIR No. 2126/2023 under Sections 120B/419/420/385/ 467/471/468/507 IPC read with Sections 65/66/66B/66C/66D of IT Act, 2000.
3. It is submitted on behalf of the petitioner that-
That the aforesaid case in Dispur P.S. was registered on the strength of an FIR dated 07.11.2023 lodged by one Inspector of Police(UB) namely Madhurjya Dadhara wherein it was stated that one Asquib Nawaz, Partha Aditya Saikia @ Parthajit Pathak, Syed Tasdique Alam and Divyam Arora and other co-accused were operating a call centre at Satyapur path, Beltola road and one Rimpi Roy, Rajan Sidana, Debojyoti Deb @David, Partha Aditya Saikia @ Parthajit Pathak, Syed Tasdique Alam and Divyam Arora and other co-accused are learnt to be operating a call center at Ananda Nagar, Sixmile. And it was further stated inthe FIR that from reliable sources it was learnt that the aforesaid call centers were actively involved in committing serious cyber and economic frauds by impersonations and other such fraudulent methods.The FIR also specifically arrays the owners of the respective Call centers namely Indrajit Mazumder and Amit Das as accomplices but interestingly doesn't name them as accused.
4. It is submitted on behalf of the petitioners that they are not connected to the call centres, named in the FIR and they do not have any knowledge of such call centres and their nefarious activities as alleged. It is submitted that only to circumvent the bail order, whereby the petitioners were released on bail and to prolong their custody, the aforesaid FIR was lodged.
5. On the basis of these submissions, the petitioners have prayed for bail.
6. Also heard Ms A Begum, learned Additional Public Prosecutor for the State of Assam, who has raised serious objection stating that the parity in relation to Page No.# 3/8 the present petitioners do not arise at all as the present petitioners are the prime accused and are employees in such call centres indulging in such heinous activities. It cannot be held at this stage that no offence under Section 467 of the IPC has been made out against the present petitioners. The Case Diary reveals cogent and incriminating materials against the present petitioners and they have siphoned off huge amount of money and some of the co-accused are on foreign shores. Granting bail to the present petitioners will entail in adversely affecting the investigation as this is a case relating to cybercrime which can be committed from a remote area. Digital records can be easily manipulated from a remote area and granting bail will be perilous as many individuals have already been cheated and the petitioners have benefitted through such nefarious activities. The learned Additional Public Prosecutor has submitted to reject the bail petition as the import of the offence with which the petitioners are alleged, does not entitle them to bail.
7. It is also submitted that the call centres were opened on the basis of fake documents and fake identity proof.
8. It is further submitted that several accused involved in this offence are evading arrest and some are even on foreign shores and absconding arrest. I have perused the seizure list. Several desktop computers and other relevant articles have been seized in connection with this case from various locations around the Guwahati city area. The petitioners are employees and they are deeply involved in running fake call centres. Several vehicles, documents, tenancy agreements for hiring the premises were found to be fake, during investigation.
9. The learned Additional Public Prosecutor has further submitted that although the petitioners have submitted that all the computers laptops and Page No.# 4/8 official digital records have been seized in connection with this case, yet cybercrime cannot be prevented by seizure of official digital records. It has to be borne in mind that this offence is a cybercrime, which can also be committed from a remote area.
10. It is true that the petitioner No. 1 is a resident of Barmanpara, Mankachar, South Salmara and petitioner No. 2 is a resident of Mandakini Path, Uzanbazar, Kamrup (Metro), Guwahati. There are incriminating materials that the petitioners are employees of illegal call centres or fake call centres at Guwahati, along with their other accomplices. One call centre is located at Rajgarh Road and the other near Mono Motors Building at Bamunimaidam. It is also submitted that money trail is yet to be ascertained due to the hurdle created by circulation of money through fake accounts, bit coins and by dark web.
11. I have considered the submissions at the Bar with circumspection.
12. It is submitted that the petitioners are booked under bailable offence as Section 81 of the IT Act has an overriding effect in relation to offences under Section IPC, except Section 467 of the IPC. It is also submitted that Section 467 of the IPC has been incorporated with malafide. It has been observed by a coordinate Bench of this Court vide order dated 08.11.2023 in Bail Application No. 4012/2023 that-
"4. It is also the submission of learned counsel for the petitioners that except the offence under Section 467 IPC, the mandatory period of other alleged offences are 60 days. Section 467 IPC is not attracted here in this case as because there is no allegation against the petitioners that they forged any document which purports to be a valuable security/will etc. In fact, police has failed to seize any article/document during investigation.
5. It is also submitted that the petitioners came to Guwahati to Page No.# 5/8 join as a trainee who had no knowledge about the alleged scam, if any. Considering the nature of offence as well as length of detention, petitioners may be enlarged on bail."
13. The learned Additional Public Prosecutor has relied on the decision of Neeru Yadav -Vs- State of UP & Anr., reported in (2014) 16 SCC 508, wherein it has been held and observed that-
"17. Coming to the case at hand, it is found that when a stand was taken that the 2nd respondent was a history sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non- application of mind. That apart, as a matter of fact it has been brought on record that the 2nd respondent has been charge sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this court would tantamount to travesty of justice, and accordingly we set it aside."
14. The learned Additional Public Prosecutor has also relied on the decision of Hon'ble the Supreme Court in Tarun Kumar -Vs- Assistant Director Directorate of Enforcement, in SLP (Crl.) No. 9431 of 2023, decided on 20.11.2023, where it has been held and observed that-
"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Page No.# 6/8 Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/ operator/ controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.
19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis Page No.# 7/8 or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision."
15. The learned Additional Public Prosecutor has prayed to dismiss the petition as the petitioners are involved in an organized crime and their network has tentacles spread even to remote locations and have duped citizens in foreign shores. It is also submitted that the statements of the witnesses under 161 CrPC, have incriminated the petitioner.
16. I have scrutinized the Case Diary. I have perused the statements of the witnesses under Section 161 CrPC.
17. The petitioners have also prayed for bail on the ground of parity. I have considered the length of detention. The petitioners have been languishing in jail since 14.09.2023.
18. The Case Diary reveals that the investigation has progressed to a considerable extent.
19. Considering all aspects and in view of my foregoing discussions, petition is allowed. The petitioners are enlarged on bail under the following conditions:-
i) the petitioners are to be released on bail on his execution of a bond of Rs. 50,000/- each, with two suitable sureties of like amount to the satisfaction of the jurisdictional Court, under the conditions that-
(a) the petitioners shall attend in accordance with the conditions of the bond executed;
(b) the petitioners shall not commit an offence similar to the offence of which they are accused, or suspected of;
(c) the petitioners 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 them from disclosing such facts Page No.# 8/8 to the Court or to any police officer or tamper with the evidence;
and
(d) the petitioners will not leave the country without prior written permission from the jurisdictional Court.
20. Bail Application stands disposed of.
JUDGE Comparing Assistant