Aditya Haralalka vs State Of Assam And Anr

Sanjeev Kumar Sharma, J

Heard Mr. S Borthakur, learned counsel for the petitioner. Also heard Ms. P Das, learned Additional Public Prosecutor for the State of Assam and Mr. R Ali, learned counsel appearing for respondent No. 2.

This is an application under Section 438 of the Bharatiya Nyaya Suraksha Sanhita (BNSS), 2023 read with Section 442 of Bharatiya Nyaya Suraksha Sanhita (BNSS), 2023 and Section 528 of Bharatiya Nyaya Suraksha Sanhita (BNSS), 2023 for setting aside the order dated 31.10.2024 passed by the Ld. Chief Judicial Magistrate, Kamrup (M) at Guwahati in connection with Hatigaon P.S Case No. 264/2023 under Section 406/420/419 of IPC and for cancellation of the bail granted to the opposite party No. 2.

The respondent No. 2 was arrested on 30.10.2024 in connection with the aforesaid case and he was granted bail on the next day i.e. 31.10.2024 by the impugned order of the said date and by way of this revision, the petitioner/informant seeks the interference of this Court with the aforesaid order which would result in the cancellation of the bail granted to the respondent No. 2.

As far as the stage of the case is concerned, the charge-sheet has already been submitted on 19.02.2025.

The brief facts of the case as reflected in the instant petition may be noted. That the petitioner’s company is engaged, inter alia, in the manufacturing and selling of poultry feeds. Sometime in the year 2021, on the representations made by the opposite party no. 2, the petitioner's company decided to expand its business in Northeast region and to that effect, the petitioner company wanted to enter into an agreement with the opposite party no. 2 to run the operations in the Northeast region. However, the opposite party no. 2 expressed his inability to enter into an agreement as he was working in CID, Assam. Such being the position, he suggested the name of Mrs. Dipsikha Choudhury, who was competent to handle the operation for the Northeast region of the petitioner company. Moreover, the opposite party no. 2 assured that though he cannot enter into an agreement, he along with Mrs. Dipsikha Choudhury would manage the entire operation of the Northeast region. On 19.04.2021, based on the representation made by the opposite party no. 2, the Petitioner's company executed a Consultant Engagement Agreement with Mrs. Dipshika Choudhury with an understanding that she would oversee the entire operations of Northeast region including but not limited to running and the managing the day-to-day affairs of company at Guwahati. One, Mr. Baban Pathak, a close Petitioner' relative of the opposite party no. 2 and Dipshika Choudhury was nominated as Godown In-charge by opposite party no. 2 and Dipshika Choudhury. For expanding the business in North East region, a Godown in Sonarpur, Guwahati was taken on lease. Thereafter, the opposite party no. 2 and his close relative, Mrs. Dipsikha Choudhury used to procure orders in the name of petitioner's company at Guwahati and sent the orders for processing to company's Head Office at Kolkata along with the details of the customer. Once, the petitioner's company at Kolkata processed the orders, delivery notes, tax invoices were issued for the goods. After that, the goods were transported from Raninagar Plant to the Godown at Sonarpur, Guwahati, with a delivery challan, tax invoices mentioning the quantity of the goods that were being transported. On 23.06.2023 the Godown In-charge certified that stock of 89.90 MT poultry feeds were lying in the Godown, which were to be sold on or before 23.06.2023, and in fact, there was no invoice or payment against the said goods and as such, the petitioner company presumed that goods were lying at Godown. Despite there being 89.90 Mt. of goods at Godown, an additional order of 23.5 Mt was placed by the opposite party no. 2 under the authority of Mrs. Dipsikha Choudhury, which raised suspicion in the mind of the petitioner. That being the position, the petitioner visited the Godown on 24.06.2023 and was surprised to find that there was no stock of the goods as certified by the Godown in-charge. The Godown In-charge could not give any satisfactory reply about the whereabouts of the goods and indeed stated that goods were sold by the opposite party no. 2 and Mrs. Dipsikha Choudhury. On further enquiry from the opposite party no. 2, the petitioner was initially threatened by the opposite party no. 2 with dire consequences for visiting Godown without his permission, however, after great persuasion, he stated that goods were sold in the market and the  shared with the petitioner after receiving the payment. But the opposite party no. 2 did not cooperate and did not divulge the details of the transaction done by them for the total amount of goods, i.e., 113.40Mt (89.90Mt+ 23.5Mt) removed from the godown. The value of the goods is around Rs.40,30,330/- (approximately) and no payment was received from any customer nor did the opposite party no.2 deposit the money and in fact, disconnected all communication with the petitioner. The petitioner came to know that the goods transported from Raninagar Plant with delivery notes, tax invoices and consignee notes has been actually received by one, M/S Sonali Foods and Feeds Pvt. Ltd, where DipsikhaChoudhury is one of the directors since 15.06.2021. In fact, the said company was incorporated on 15.06.2021 that too after the execution of the Consultant Engagement dated 19.04.2021. M/S Sonali Foods and Feeds Pvt. Ltd deals in the same line of business as petitioner's company.

In course of the investigation, the accused Nilam Medhi @ Nilank Kashyap was apprehended from his house and was brought to P.S. His statement was recorded U/S 180 of BNSS, 2023 and he was arrested and produced before the Ld. C.J.M (I/c, Kamrup Metro) but was granted bail by order dated 31.10.2024 due to non-compliance of Section 41A of Cr.P.C.

There is no dispute that the accused person who was named as Nilank Kashyap in the FIR is the same person as Nilam Medhi i.e. the respondent No. 2, a fact which has already been reflected in an order passed by this Court vide order dated 16.10.2023 upon an anticipatory bail application being A.B No. 2973 of 2023 filed by the respondent No. 2.

Mr. S Borthakur, learned counsel for the petitioner has drawn the attention of the Court to the impugned order, the relevant part whereof may be reflected hereunder:

“Seen the bail petition filed on behalf of the accused Nilam Medhi. The learned counsel for the accused stated that notice under Section 41(A) of Cr.P.C is not complied in this case. However, the I/O is absent and case diary also is not produced before me. This is a case of 2023 and there is no record that notice has been sent to the accused regarding the case against him. Hence, it is observed that the guidelines laid down by the Hon'ble Supreme Court in the case of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 has not been complied with. Considering all aspects, accused Nilam Medhi @ Nilank Kashyap is allowed to go on bail of Rs. 30,000/- with one surety of the like amount and in default to judicial custody.”

Mr. S Borthakur, learned counsel for the petitioner submitted that the impugned order has been passed upon a misconception of facts as well as law with regard to Section 41(A) of Cr.P.C. It is submitted that notice under Section 41(A) of Cr.P.C was issued to the said accused/respondent No. 2 as stated by learned Addl. Public Prosecutor and it was because of his non-appearance pursuant to such notice that the petitioner was arrested. It is further submitted that the grounds of arrest have been clearly stated in the forwarding report in respect of the said accused/respondent No. 2 and therefore, even if there was non-compliance with Section 41(A) of Cr.P.C, the same is of no consequence. It is further submitted that Section 41 Cr.P.C empowers the police officer, without any order from a Magistrate or without any warrant, to arrest any person against whom a reasonable complaint has been made in respect of an offence punishable with imprisonment for a term which may extend to 7(seven) years if the police officer has reason to believe, on the basis of such complaint, that such person has committed the said offence and when the police officer is satisfied that such arrest is necessary on any of the grounds as enumerated in Section 41 of Cr.P.C and further that the police officer is required to record, while making such arrest, his reason in writing. It is submitted that a perusal of the forwarding report would show that the I/O has clearly mentioned the grounds necessitating the arrest of the said accused/respondent No. 2 in compliance of Section 41 Cr.P.C and therefore, non-issuance of a notice under Section 41(A) of Cr.P.C, even if taken to be factually correct, is of no consequence and therefore, the impugned order stands vitiated. Further, referring to Section 37 Cr.P.C, more specifically the 4th proviso thereof, which requires notice to the Public Prosecutor before granting bail, has not been complied with, submitted ld. Counsel.

In support of his submissions, learned counsel for the petitioner has relied upon the decision of the Hon’ble Supreme Court in Arnesh Kumar V. State of Bihar reported in

2014 8 SCC 273 wherein it has been held as follows :

“Another provision i.e. Section 41-A CrPC aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. Section 41-A as inserted by Section 6 of the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), which is relevant in the context reads as follows:

“41-A. Notice of appearance before police officer.-(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person 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, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice."

The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, g the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.”

With reference to the aforesaid observation of the Hon’ble Supreme Court it is submitted that since the I/O has recorded the reasons for the necessity of the arrest as reflected in the grounds of arrest available in the forwarding report in respect of the accused, there cannot be said to have been any non-compliance with the provisions of Section 41(A) of Cr.P.C. Reliance has been placed on another decision of the Supreme Court in Prasanta Kumar Sarkar V. Ashish Chatterjee reported in 2010 14 SCC 496 wherein it has been held as follows :

“We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by a High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.”

It is submitted that without considering any of the aforesaid factors, the Ld. Magistrate has erred in granting bail to the accused merely on account of violation of Section 41(A) of Cr.P.C. In the case of Himanshu Sharma V. State of Madhya Pradesh reported in 2024 4 SCC 222, the Hon’ble Supreme Court has cited its previous decision in Gurcharan Singh V. State(UT) of Delhi reported in 1978 1 SCC 118 wherein the powers of the Court with regard to grant and cancellation of bail have been succinetly culled out. Also relied upon was the case of Ranjit Singh V. State of Madhya Pradesh reported in 2013 16 SCC 797 wherein it was held as follows :

“There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court.”

In the same case i.e. Himanshu Sharma Supra, it is further held as follows :

“Law is well settled by a catena of judgments rendered by this Court that the considerations for grant of bail and cancellation thereof are entirely different. Bail granted to an accused can only be cancelled if the Court is satisfied that after being released on bail:

(a) the accused has misused the liberty granted to him;

(b) flouted the conditions of bail order;

(c) that the bail was granted in ignorance of statutory provisions festricting the powers of the Court to grant bail:

(d) or that the bail was procured by misrepresentation or fraud.

In the present case, none of these situations existed.”

Lastly, reliance has been placed on the decision of the Hon’ble Supreme Court in Daulat Ram & Ors. V. State of Haryana reported in (1995) 1 SCC 349 wherein the conditions or grounds for cancellation of bail by way of illustration was discussed including the possibility of the accused absconding and evading the due course of justice.

Per contra, Mr. R Ali, learned counsel appearing for respondent No. 2 submitted that the petitioner ought to have filed an application for cancellation of bail and not a revision petition and therefore, the revision itself is not maintainable and liable to be dismissed. It is further submitted that in view of the absence of any proof or material to show that the notice under Section 41(A) of Cr.P.C was served upon the respondent No. 2 the Ld. Magistrate rightly held that there was non-compliance with the aforesaid provision in view of the decision of the Hon’ble Supreme Court in Arnesh Kumar Supra as well as Satender Kumar Antil V. Central Bureau of Investigation & Anr. reported in 2022 10 SCC 51.

There is no dispute with regard to the settled law that the High Court has the power to interfere with an order granting bail on the ground of gross illegality or perversity. The limited question that is required to be decided in the present petition is whether there was actual non-compliance with Section 41(A) of Cr.P.C and secondly, whether in view of mentioning of the grounds of arrest in the forwarding report in respect of the respondent No. 2, it was not necessary for the I/O to have complied with Section 41(A) of Cr.P.C.

On perusal of the Case Diary, there appears to be present a notice under Section 41(A) of Cr.P.C as well as a W.T message which are reproduced below :

W/T MESSAGE URGENT

O/C TARABARI PSU BARPETALI

INFO

DCP (EAST)/ DCP (CRIME ASSAM/ACPIISTA

FROM:

O/C HATIGAON PSLL GUWAHATI, ASSAM 14

SIG. NO.

HTG P.S/VOL/2023/166-169

DATED 17/09/202311

REP HATIGAON PS CASE NO 264/23U/3-406/419/420 TPC 11

IT IS HEREBY INFORM YOU THAT KINDLY SERVE THE NOTICE 0/8:41 A CPC TO NILAM MEDHI R/O BAHARI SATRA PS TARABARI PO NJ BOHORI DIST-BARPETA, ASSAM IN CONNECTION WITH THE ABOVE NOTED CASE REF YOUR A/T MAY KINDLY BE COMMUNICATED TO THE UNDERSIGNED BY RETURN SIGNALLIFPI

COPY TO:

1) 1/C VHF PSE TX EARLY

2) O/C MCC PSE TX EARLY (.)

Hatigaon Police Station

Notice U/3 41 A (1) Cr.P.C

To,

Nilam Medhi

R/O-Bahari, Satra, P.S.-Tarabari, P.O.- Nij Bohori

Dist-Barpeta, Assam

In exercise of the powers confirmed under Sub section (1) of section 41 Al of Cr. P.C. I hereby inform you that during the investigation of Hatigaon P.S. Case No 264/23 U/S 406/419/420 IPC registered at Hatigaon Police station, it is revealed that there are reasonable grounds to question you to ascertain facts and circumstances from you. Hence you are directed to appear before the undersigned Investigating officer at Hatigaon P.S. on dated 19/09/2023 at 11.00 AM.

However, no acknowledgement receipt is available either on the body of the notice/W.T. Message, nor could any return W.T message from the concerned police station be found stating that the notice has been served upon the accused/respondent No. 2.

Ms. P Das, learned Additional Public Prosecutor for the State of Assam also fairly concedes that there is no such material available in the Case Diary. Therefore, the question of service or non-service of notice under Section 41(A) of Cr.P.C stands answered accordingly.

This brings us to the question as to whether non-issuance or non-service of notice under Section 41(A) of Cr.P.C is irrelevant in view of the fact that the grounds of arrest have been stated in the forwarding report, a point that has been urged by learned counsel for the petitioner.

The relevant portion of Section 41 of Cr.P.C is reproduced below :

“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 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) 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.

Section 41(A) of Cr.P.C has already been quoted hereinbefore while quoting the relevant part of the decision of the Hon’ble Supreme Court in Arnesh Kumar Supra at paragraph 10 above.

What Section 41(A) of Cr.P.C mandates is that in all cases where the arrest of a person is not required under the provisions of sub-section 1 of Section 41 of Cr.P.C, the police officer is required to issue a notice to the accused to appear before him or at such other place as may be specified in the notice. The very fact that it is the contention of the prosecution, as borne out by the Case Diary as well, that a notice under Section 41(A) of Cr.P.C was indeed issued by the I/O ipso facto shows that the I/O had come to the conclusion that the arrest of the accused was not required under the provisions of sub-section 1 of Section 41 Cr.P.C. Mentioning of the grounds of arrest in the forwarding report after the subsequent arrest of the accused has nothing to do with Section 41 Cr.P.C after issuance of notice under Section 41(A) Cr.P.C. As stated in sub-section 4 of Section 41 of Cr.P.C, where the accused fails to comply with the terms of the notice under Section 41(A) of Cr.P.C, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest the accused for the offence mentioned in the notice. A bare reading of the aforesaid sub-section 4 of Section 41 of Cr.P.C would go to show that the said provision pre-supposes the due service of notice upon the concerned accused, as otherwise there is no question of complying with the terms of such notice. In view of the admitted fact that the respondent No.2 was not duly served with the notice that was issued by the I/O under Section 41(A) Cr.P.C, his subsequent arrest must be held to be wholly illegal. Therefore, the reference to the grounds of arrest mentioned in the forwarding report as a justification for non-compliance with Section 41(A) of Cr.P.C or to the lack of requirement of such compliance is wholly misconceived. Moreover, the charge-sheet has already been submitted and the I/O has not indicated therein any contemplation or necessity of further investigation as would require the custodial interrogation of the accused/respondent No. 2. In Himanshu Sharma Supra, cited on behalf of the petitioner himself, it has been observed by the Hon’ble Supreme Court that the Ld. Single Judge, while cancelling the bail granted to the appellants, did not even consider the fact that charges have been framed against the appellants and the trial had commenced and thus there could not have been any requirement of the appellants for further investigation.

In the present case also, charge-sheet has been submitted and the same principle would apply.

Learned counsel for the petitioner had also referred to the fourth proviso to Section 437(1) of Cr.P.C wherein it is provided that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life or imprisonment for 7(seven) years or more be released on bail by the Court under the said sub-section without giving an opportunity of hearing to the public prosecutor. The Public Prosecutor/Addl. Public Prosecutor/Assistant Public Prosecutor is generally present before the Courts while petitions of this nature are heard and the mere fact that the presence of the public prosecutor has not been reflected in the impugned order does not ipso facto lead to the conclusion that no opportunity of hearing was granted to the public prosecutor and in any case, such absence of notice to the public prosecutor in view of the facts and circumstances of the present case, as well as the law laid down in Arnesh Kumar Supra, must be regarded as an irregularity which does not vitiate the order itself.

In view of what has been discussed above, I do not find any infirmity in the impugned order and accordingly, the instant application is found to be devoid of merit and consequently, the same is dismissed.

Send back the Case Diary.