Gauhati High Court
Pranjal Borah vs The State Of Assam on 12 September, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010157032022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/2222/2022
PRANJAL BORAH
S/O JUGEN CH. BORAH
PERMANENT R/O VILL- TEOK SONARI GAON TEOK, P.O. UTTAR DHULIA,
P.S. TILOK, DIST. JORHAT, ASSAM, PIN-785112
VERSUS
THE STATE OF ASSAM
REP. BY THE LD. PP, ASSAM
Advocate for the Petitioner : MR. M K DAS
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 12.09.2022 Heard Mr. M.K. Das, learned counsel for the petitioner. Also heard Mr. Bankim Sarma, learned Addl. P.P. appearing for the State.
2. Apprehending arrest in connection with Jorhat P.S. Case No. 244/2022 under sections 406/409/34 of the I.P.C., the petitioner has filed this Page No.# 2/6 second pre-arrest bail application under section 438 Cr.P.C. The previous application was rejected vide order dated 20.07.2022, passed by this Court in A.B. 1317/2022.
3. The learned counsel for the petitioner has submitted that after interim pre-arrest bail was granted by order dated 08.08.2022, the petitioner had appeared before the I.O. and his statement has been recorded. It was further submitted that the learned Sessions Judge, Jorhat by order dated 04.05.2022, had granted pre-arrest bail to a similarly situated co-accused, namely, Smt. K. Bendangsangla, who was also the Assistant Manager of the Indian Overseas Bank and therefore, by referring to the case of Kamaljit Singh v. State of Punjab & Anr., (2005) 7 SCC 226 , he has prayed for granting pre- arrest bail to the petitioner on the ground of parity. By referring to the medical documents of the petitioner, it was also submitted that the petitioner is a HIV positive patient and therefore, it would be in the interest to all concerned that he is granted pre-arrest bail.
4. The learned Addl. P.P. has produced the case diary and has opposed the prayer for bail.
5. Considered the case diary once again.
6. The materials available in the case diary indicates that the petitioner, as well as other officials of the bank, either individually and/or in connivance with each other had illegally and unauthorisedly closed deposit accounts of the bank customers and the proceeds of such illegally closed accounts were siphoned off by the petitioner by either opening fake accounts, or depositing proceedings in some saving bank accounts which are less Page No.# 3/6 operative and belong to weaker section of the society. As on the date of lodging of the FIR, the bank could only detect that from 28.12.2018 till 03.06.2020, 28 (twenty-eight) over-due deposit accounts and 14 (fourteen) current accounts were illegally and unauthorisedly closed without the mandate of the customers and its effect/ balance amounting to about Rs.16,47,658/- was fraudulently credited by the petitioner in connivance and active participation with other co- accused, who were also bank employees in fake accounts and low/less operative accounts.
7. Some witnesses, who were the account holders, and were examined by the I.O. had stated that the petitioner had called them to bank and informed that due to some error, deposit entries were made in their account and they were asked to withdraw cash and hand it over to the branch named by the petitioner and when they went with money to the concerned branch, the petitioner received cash from them from outside the bank and these customers returned home with impression that they had deposited money back into the bank. However, the money was pocketed by the petitioner.
8. It is projected by the learned counsel for the petitioner that as on date, the petitioner had returned to the bank a sum of approximately Rs.10.00 lakh.
9. Therefore, in view of the extent of bank fraud committed by the petitioner, this is not an appropriate case to grant the privilege of pre-arrest bail to the petitioner because the learned Addl. P.P. has submitted that in order to unearth the extent of fraud and to ascertain the modus operandi, custodial interrogation of the petitioner was highly necessary.
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10. The three plea of the learned counsel for the petitioner, as mentioned herein before, are now examined.
11. The first plea was that after interim pre-arrest bail was granted by order dated 08.08.2022, the petitioner had appeared before the I.O. and his statement has been recorded. In the said context, it would be relevant to mention herein that the previous pre-arrest bail application was rejected vide order dated 20.07.2022, passed by this Court in A.B. 1317/2022. However, in this instant application, it was projected that the mother of the petitioner had died on 01.08.2022 and the shraddha ceremony was scheduled on 16th and 17th of August, 2022. On such consideration, the Court had granted interim pre- arrest bail by interim bail order dated 08.08.2022. However, it was made clear that the interim bail was granted on the aforesaid ground that the said order shall not create any right to the petitioner at the time when the case diary is perused. Therefore, despite appearance of the petitioner before the I.O., in view of the commission of bank fraud by the petitioner, who was an officer of the bank and was holding a position of trust, had allegedly betrayed the trust and had swindled the bank as well as its unsuspecting constituents/ customers.
12. The second plea was that the learned Sessions Judge, Jorhat by order dated 04.05.2022, had granted pre-arrest bail to a similarly situated co- accused, namely, Smt. K. Bendangsangla, who was also the Assistant Manager of the Indian Overseas Bank and therefore, by referring to the case of Kamaljit Singh (supra), he has prayed for granting pre-arrest bail to the petitioner on the ground of parity. In the present case in hand, the Court finds that the material in the case diary not only implicates the petitioner of committing fraud, but the same stands cemented by the submissions made by the learned counsel for the Page No.# 5/6 petitioner that the petitioner had refunded about Rs.10.00 lakh to the bank.
13. It would now be appropriate to deal with the plea of "principle of parity" in the matter of grant of bail, raised by the learned counsel for the petitioner. It may be mentioned that the Supreme Court of India, in the case of Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230 , had held that the High Court while granting bail must focus on the role of the accused in deciding the aspect of parity. It was observed as under:-
"26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12- 2020, the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-
15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.
The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."
14. The said view was again approved by the Supreme Court of India in the case of Mahadev Meena v. Praveen Rathore & Anr., (2021) 0 Supreme(SC) 518: 2021 SCC OnLine 804. Therefore, notwithstanding that other co-accused were granted pre-arrest bail, but the petitioner herein stands in a different footing as the materials collected in course of investigation discloses sufficient materials against the petitioner, for which, in the opinion of the Court, this is not a fit case for grant of pre-arrest bail to the petitioner. Therefore, the Page No.# 6/6 case of Kamaljit Singh (supra), would not help the petitioner in any manner.
15. The third plea was that the petitioner is a HIV-1 positive patient and therefore, it would be in the interest to all concerned that he is granted pre- arrest bail. In this regard, the nature of illness allegedly suffered by the petitioner would not entitle the petitioner to pre-arrest bail because the petitioner was diagnosed of being HIV-I positive vide report dated 18.02.2019, but as per bank's projection, the bank could detect that between the period from 28.12.2018 and 03.06.2020, the petitioner had been siphoning off money from account holders of the bank. Thus, even after coming to know that he is HIV-1 positive, it did not dissuade the petitioner to allegedly commit the offence of cheating his employer, i.e. the concerned bank and its customers.
16. Therefore, in light of the discussions above, the Court is of the considered opinion that as the petitioner, in connivance of his other co-officers has allegedly committed offence of defrauding his employer bank and its customers, this is not a fit and appropriate case to grant the privilege of pre- arrest bail.
17. Accordingly, this application is dismissed. The interim pre-arrest bail, which was granted by order dated 08.08.2022, on the projection that his mother had expired on 01.08.2022, stands recalled and revoked.
18. The case dairy is returned.
JUDGE Comparing Assistant