Gauhati High Court
Phulendra Kalita vs The State Of Assam on 4 June, 2021
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GAHC010007622021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/46/2021
PHULENDRA KALITA
S/O- LATE KASHI NATH KALITA, R/O- VILL.- JYOTINAGAR PATHSALA, P.O.
PATHSALA UNDER PATACHARKUCHI POLICE STATION, DIST.- BARPETA,
ASSAM.
VERSUS
THE STATE OF ASSAM.
REP. BY THE P.P., ASSAM.
Advocate for the Petitioner : MR Z KAMAR
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 04-06-2021
1. Because of COVID Pandemic situation, the Court proceedings are
conducted through Video Conferencing.
2. Mr. Z. Kamar, learned senior counsel assisted by Mr. M. I. Neog and
Mr. B. Talukdar, learned counsels for the applicant. Also heard Mr. D.
Das, learned Additional Public Prosecutor for the State.
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3. This interlocutory application has been filed by the applicant
praying for suspension of sentence as well as for bail since he is in
custody pursuant to the Judgment dated 28.12.2020 passed by the
Special Judge, Assam at Guwahati in Special Case No. 15/2017,
whereby the accused-applicant was convicted under Sections 7 and
13(2) of the Prevention of Corruption Act, 1988 and has been
sentenced to undergo rigorous imprisonment for 3(three) years and
also to pay a fine of Rs.20,000/- and in default to undergo rigorous
imprisonment for 1(one) month under Section 7 of the P.C. Act, 1988
and further to undergo rigorous imprisonment for 4(four) years and
also to pay a fine of Rs.30,000/- in default to undergo rigorous
imprisonment for 2(two) months under Section 13(2) of P.C. Act, 1988,
both the sentences were directed to run concurrently.
4. The learned senior counsel for the applicant submits that there are
serious discrepancies in the judgment under appeal inasmuch as the
FIR was lodged after the delay of 12(twelve) days and without any
appropriate explanation. The learned senior counsel referring to the
judgment under appeal submits that the trial Court has erred in
appreciating the facts as well as on law while arriving at the order
convicting the petitioner.
5. The learned senior counsel submits before the learned trial Court,
it was urged that there was unexplained delay in filing the FIR which is
fatal to the prosecution. It was further urged that the prosecution failed
to show that there was any demand for any gratification made by the
accused from the complaint. It was also urged that in terms of the
Assam Sarba Siksha Mission Abhijan, the accused/applicant herein, had
no power to grant any kind of work to anybody rather it was the school
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management committee who is the sole authority for allotment of the
work. The learned senior counsel by referring to the Judgment of V.
Venkata Subbarao -Vs- State represented by Inspector of Police A.P.
reported in (2006) 13 SCC 305 submits that the case put up by the
prosecution is in conflict with the law laid down by the Apex Court in
the said judgment. The learned senior counsel for the petitioner
submits that the learned trial Court, however, did not appreciate the
correct position in law as well as failed to take into account relevant
facts and consequently the accused/applicant was convicted by the
impugned judgment. The learned senior counsel submits that the
petitioner has already been in custody for about 7(seven) months and
3(three) days. He is a person having sufficient roots in the society and
he being a Government servant, the applicant will abide by any
condition that may be imposed by this Court. Therefore, it is prayed
that the applicant be released on bail and the sentence be suspended
till disposal of the appeal.
6. The learned Additional Public Prosecutor appearing for the State
submits that the application may not be considered at this stage in view
of the fact that the appeal can be heard within a short date.
7. Upon hearing the learned counsels for the parties and upon
perusal of the pleadings including the judgment in appeal, it is seen
that prima facie the trial Court has failed to appreciate the law laid
down by the Apex Court in V. Venkata Subbarao -Vs- State represented
by Inspector of Police A.P. reported in (2006) 13 SCC 305 (supra) in
arriving at the conviction of the applicant by the judgment under
appeal. Accordingly, this Court is of the view that the applicant can be
granted bail till the disposal of the connected criminal appeal i.e. Crl.A.
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No. 21/2021. He petitioner shall be released upon furnishing a bail
bond of Rs.25,000/- with one local surety to the satisfaction of the
Special Judge, Assam. Liberty is granted to the learned Special Judge,
Assam to put any condition as deemed fit and proper at the time of
releasing the applicant on bail.
8. In view of the appeal being admitted and the petitioner being
granted bail, the sentence imposed by the learned Special Judge,
Assam by the Judgment dated 28.12.2020 is suspended till disposal
of the criminal appeal.
9. The I.A. is, accordingly, allowed and disposed of.
JUDGE
Comparing Assistant
