Gauhati High Court
Tapan Mali vs The State Of Assam on 13 May, 2022
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
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GAHC010078822022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Bail Appln./957/2022
TAPAN MALI
S/O- LATE SUBUDH MALI
R/O- VILL.-BORKUCHI
P.O. MIRZA
P.S. PALASHBARI
DIST.- KAMRUP
ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBIC PROSECUTOR
ASSAM
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Advocate for : MR. N N B CHOUDHURY
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
Heard Shri Arunabh Chowdhury, learned Senior Counsel assisted by Shri NNB Choudhury, learned counsel for the applicant, namely, Sri Tapan Mali, who has filed this bail application under Section 439 of the Cr.PC praying for bail in connection with Palashbari PS Case No. 149/2022 under Sections 468/471/420/34 of the IPC, read Page No.# 2/10 with Section 64 of the Indian Stamp Act.
2. The applicant was arrested on 13.04.2021.
3. Pursuant to the orders of this Court, the Case Diary has been obtained.
4. An FIR has been lodged on 12.04.2022 by one Shri Nitul Boruah wherein serious allegations have been made against the applicant. It states that by taking recourse to fraud, the signature of his deceased father was forged and his land was transferred to the name of the accused vide a Sale Deed dated 20.02.2022. It has further been alleged that even the PAN card of the deceased father was forged and when the informant had contacted the accused, the accused has threatened him of filing a defamation case. The informant has further stated that he has already applied for cancellation of the mutation as the entire transaction was done by using forged documents. Along with the applicant, four other persons were made accused who are stated to be the aids and agents of the applicant.
5. Shri Chowdhury, learned Senior Counsel would first submit that so far the Indian Stamp Act is concerned, the violation alleged is of Section 64 thereof wherein the penalty prescribed is fine of Rs. 5000/- and the offence is bailable. Further, to invoke any provisions of the said Act, previous prosecution sanction is mandatory as per Section 70 thereof and in this case, no such sanction has been taken. To buttress the argument that prosecution also covers investigation, the learned Senior Counsel has relied upon the case of State, CBI Vs. Sashi Balasubramanian & Anr. , reported in (2006) 13 SCC 252.
6. Secondly, dealing with the provisions of the Benami Transactions (Prohibition) Act, 1988, the learned Senior Counsel submits that it appears that a non-existing Page No.# 3/10 provision of law has been sought to be relied upon inasmuch as, the said Act has undergone an amendment in the year 2016 and the alleged offence is after the said amendment. In any case, even under this Act, there is a requirement of previous sanction under Section 55 which has not been done. It is the contention made on behalf of the applicant that the offences under the aforesaid two Acts, namely, the Indian Stamp Act and the Benami Transactions (Prohibition) Act, 1988 are stillborn and therefore, cannot be invoked.
7. Dealing with the Sections of the Indian Penal Code, it is contended that none of the Sections involved i.e., 468/471/420/34 prescribe penalty for more than 7 years and therefore, the guidelines of the Hon'ble Supreme Court in the case of Arnesh Kumar Vs. State of Bihar & Anr. , reported in (2014) 8 SCC 273 is required to be followed. The guidelines prescribe that for offences of less than 7 years, there is a requirement to issue notice under Section 41-A of the Cr.PC and in absence thereof, to assign reasons which has, admittedly not been done in the present case. The Hon'ble Supreme Court has also gone to the extent of directing initiation of contempt proceeding by the respective High Courts in case of such violations. In the instant case, it is contended that there has been violation of the guidelines as no notice under Section 41-A was ever served.
8. It is contended on behalf of the applicant that he was shown arrested on 13.04.2022 as he was already in custody in connection with another case, namely, Palashbari PS Case No. 142/2022. From 13.04.2022 itself, the applicant is in judicial custody without any interrogation. It is also submitted that the evidence are all documentary in nature which have been seized and therefore, the requirement of further custodial detention/interrogation will not be necessary.
9. On the merits of the allegation, the learned Senior Counsel submits that the purchase of the land in question is by M/S Green Orchid NE Pvt. Ltd. of which the Page No.# 4/10 applicant is Managing Director and all such purchases were made after obtaining sale permission from the competent authority. It is contended that if there is any impersonation, it is the vendors who would benefit and not the applicant who has paid the price of the land. The transaction, in the present case, namely, execution of a Sale Deed, it is contended that the same was done on commission with one Prasanna Kumar Barman as the Commissioner. By drawing the attention to the said Sale Deed annexed as Annexure-V, it is contended that the signatures and thumb impression of the seller was taken at a different point of time than those of the applicant. It is therefore contended that the applicant was unaware that the seller was impersonated.
10. In support of his submissions, Shri Chowdhury, learned Senior Counsel has relied upon the following case laws:
i) Munawar Vs. State of Madhya Pradesh & Ors. , (2021) 3 SCC 712,
ii) P Chidambaram Vs. Directorate of enforcement , (2020) 13 SCC 791.
11. The learned Senior Counsel has submitted that in the case of Munawar (supra), the Hon'ble Supreme Court on noticing that the procedure contained in Section 41of the Cr.PC was not followed had granted ad-interim bail. Further, in the case of P Chidambaram (supra), the Hon'ble Supreme Court had laid down that it is not a rule that bail should be denied in case of economic offences.
12. On the other hand, the prayer for bail has been strenuously opposed by Shri M Phukan, learned Public Prosecutor, Assam.
13. As regards the argument made on the Indian Stamp Act and the Benami Page No.# 5/10 Transactions (Prohibition) Act, 1988, the learned Public Prosecutor submits that the requirement of prior sanction to prosecute has to be construed in a manner to give a reasonable and proper meaning to the provision of law. It is submitted that though apparently, the aforesaid two Acts are mentioned, it would only be at the time of completion of investigation when such requirement can be ascertained and it is, at that stage, when sanction can be obtained. Alternatively, it is submitted that the FIR contains other sections of the IPC which alone would be able to sustain the allegations. As regards the guidelines framed by the Hon'ble Supreme Court in the case of Arnesh Kumar (supra), it appears that if prior notice was issued, the applicant would have tempered with the evidence which are mostly documentary in nature. It is contended that the applicant is a very powerful person of the locality and has immense influence over the concerned offices. It is pointed out that in the same case, a Mondal has also been arrested.
14. By drawing the attention of this Court to the grounds of arrest, it is contended that the offences are serious in nature where many innocent persons have been duped and immovable property has been acquired by taking recourse to fraudulent means. The learned Public Prosecutor further submits that the applicant is not cooperating with the investigation. It is accordingly submitted that considering the fact that the applicant would exercise immense influence, if at this stage he is released on bail, there is every likelihood of the evidence being tempered.
15. On the plea of innocence made on behalf of the applicant that he was not aware of the fact that the seller was impersonated inasmuch as, the Sale Deed was executed on commission, the learned Public Prosecutor submits that the persons who had identified the signatures and are also Witnesses to the Sale Deed are all agents/aids of the applicant.
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16. In support of his contention that further custodial detention is necessary, Shri Phukan submits that many co-accused are yet to be arrested and there would be necessity of joint interrogation as the offence involved is an organized one wherein at various stages, various persons, including government officials are involved. Shri Phukan also relies upon the case of State of Bihar & Anr. Vs. Amit Kumar @ Bachcha Rai, reported in (2017) 13 SCC 751. Reliance has also been placed upon the case of P Chidambaram (supra). The learned Public Prosecutor has also relied a number of other case laws to justify his contentions.
17. The rival submissions made have been duly considered and the materials in the Case Diary carefully perused.
18. At the outset, let us remind ourselves that it is a petition for bail which is the subject matter of consideration and therefore, it is on a prima facie and tentative view based upon which the decision of this Court would be taken. The legality and validity of accusations under certain Acts are not the subject matter of adjudication in a bail application and therefore, this Court would refrain from making any comments or remarks on the same.
19. The aforesaid observation is required to be made inasmuch as, one of the main thrust of the argument is procedural violation of the Indian Stamp Act and Benami Transactions (Prohibition) Act. Though prima facie, the contention made on behalf of the applicant regarding requirement of previous prosecution sanction appears to be correct in view of the provisions of law and as explained by the Hon'ble Supreme Court in the case of Sashi Balasubramanian (supra), this Court is of the view that the investigation being at a preliminary stage, there is ample scope and opportunity for the prosecution to obtain previous sanction which in any case, has to be done before Page No.# 7/10 submission of the charge sheet. This Court also finds force in the submission of the learned Public Prosecutor that in a given situation, the requirement to invoke the aforesaid provision of law may not even arise and the prosecution can proceed only on the offences under the Indian Penal Code. Be that as it may, this Court is of the opinion that the said issue can be raised only in an appropriate proceeding and not in an application for bail and therefore, no further observations are required to be made on the said issue.
20. As regards compliance of the directions of the Hon'ble Supreme Court in the case of Arnesh Kumar (supra), this Court is in agreement with the contention of the learned Public Prosecutor that in a situation of the present nature, if notices under Section 41-A was given, the investigation would have suffered a huge jolt as it would have given the applicant a scope to temper with the evidence which are mostly documentary in nature. Further, under Guidelines 11.1 of Arnesh Kumar (supra), a scope has been given to the concerned police officers to satisfy themselves regarding the necessity for arrest vis-a-vis the provision of law laid down in Section 41 of the Cr.PC. For ready reference, Section 41 Cr.PC is quoted hereinbelow:
"41. When police may arrest without warrant.--(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person--
(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence 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, 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 office 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 Page No.# 8/10 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) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of Section 356; or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Subject to the provisions of Section 42, no person concerned in a non-
cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate."
21. Though the applicant had relied upon the case of Munawar (supra), the facts are totally different wherein a stand-up comedian was charge with offences under Page No.# 9/10 Section 295A/298/269/188/34 IPC wherein, it was alleged that the jokes made by the accused-petitioner had outraged the religious sentiment of the complainant and those similarly situated.
22. As regards the case of P Chidambaram (supra), though bail has been granted by the Hon'ble Supreme Court, the Hon'ble Court itself has made it clear that the findings in the judgment shall not have any bearing qua the other accused in the case and same shall be considered independently on its own merits. In view of such observation, it is obvious that the decision rendered has to be confined to the facts of the case.
23. The next issue which arises for consideration is the prima facie involvement of the applicant with the offence alleged. It is an admitted fact that though the purchase was by M/S Green Orchid NE Pvt. Ltd., it is the applicant, who is the Managing Director. It appears from the materials available on records that it is on the behest of the applicant that all transactions were done. With regard to the submission that sale permission was duly obtained, one has to keep in mind that the allegation is not of violation of any procedure but taking recourse to fraud and forgery in following the said procedure and in this case, it is an admitted fact that the signature of a dead person has been forged in all the documents for sale of land. This Court is unable to accept the explanation that it was merely lack of due diligence on the part of the applicant while purchasing the land in question. As revealed, the land in question forms a part of a big plot where the applicant claims to be constructing a huge housing complex. Further, on bare perusal of the materials on record and the Sale Deed, though the sale appears to be executed on commission, it is clear that the persons who had identified the signatures and thumb impression, mainly of the seller at the time of execution of the Sale Deed and also the Witnesses of the sale are none but the agents of the applicant.
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24. This Court also finds force in the contention of the learned Public Prosecutor that the present is an organized crime wherein a number of persons, including government officials may be involved and therefore, releasing the applicant, at this stage, may not be in the interest of justice. The aspect of joint interrogation which has been highlighted cannot also be brushed aside. This Court has also noticed that the applicant is a powerful person of the locality having influence over the concerned offices and is therefore, of the opinion that releasing the applicant at this stage may be detrimental and jeopardize to the investigation.
25. In view of the above discussions, the bail application accordingly stands rejected.
26. The Case Diaries which were placed before this Court in connection with the present case another case of the same applicant containing similar allegation are returned herewith to the learned Public Prosecutor, Assam.
JUDGE Comparing Assistant