Bikash Beria vs The State Of Assam
2022 Latest Caselaw 669 Gua

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GAHC010212892021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : AB/4171/2021

            BIKASH BERIA
            S/O DURGA PRASAD BERIA
            R/O RAVINDRA NATH LODH ADVOCATE APARTMENT, MISSION ROAD,
            TINSUKIA, P.S. TINSUKIA, PIN-786125
            DIST. TINSUKIA, ASSAM

            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM

Advocate for the Petitioner   : MR. A CHAMUAH

Advocate for the Respondent : PP, ASSAM



             Linked Case : AB/4172/2021

            NITIN BERIA
            S/O DURGA PRASAD BERIA
            R/O SECTOR 3
            BYE LANE NO. 2

            CHALIHA NAGAR
             TINSUKIA
            P.S. TINSUKIA
             PIN-786125
            IN THE DISTRICT OF TINSUKIA
             ASSAM


             VERSUS
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          THE STATE OF ASSAM
          REP. BY THE PP
          ASSAM

          ------------
          Advocate for : MR. A CHAMUAH
          Advocate for : PP
          ASSAM appearing for THE STATE OF ASSAM




                                PRESENT
                  HON'BLE MR. JUSTICE HITESH KUMAR SARMA

For the petitioners          :    Mr. A. Chamuah, Advocate

For the Respondent           :    Mr. P.N.Goswami,
                                  Additional Advocate General, Assam

                                   Mr. M. Phukan,
                                   Public Prosecutor, Assam

                                  Mr. R.J. Baruah,
                                  Additional Public Prosecutor, Assam

Date of hearing              :    21.02.2022

Date of Judgment             :    24.02.2022
and order


                                   ORDER

(CAV)

Both these applications are taken up together for convenience as they have arisen out of the same FIR.

2. These applications have been filed under Section 438 of the Cr.PC. seeking pre-arrest bail of the accused-petitioners, namely, 1) Sri Bikash Beria (in A.B. No.4171/2021) and 2) Sri Nitin Beria (in A.B.

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No.4172/2021), in connection with Crime Branch Police Station Case No.12/2021 registered under Sections 120(B), 420 of the Indian Penal Code, 1980 and read with Section 13, 14 of Assam Game and Betting Act, 1970.

3. The fact of the case, as appears from the FIR, is that on the basis of source information about betting and gambling taking place in respect of various IPL Cricket matches through mobile phones and various other electronic devices, especially Whatsapp, Telegram, Instagram, raid was carried out in the residence of Shri Lalit Kishore Bajoria of Zoo Road, Exotica Greens C Block 603 of Geetanagar and Rajesh Jain of Kumarpara, KRC Road, Amrit Residency A Block. Deepesh Bajoria, Ronak Bajaria and Rajesh Jain were found inviting bets by themselves and through their agents in respect of outcome of the cricket matches. During the raids so conducted, four numbers of mobile phones and four numbers of ATM cards, used as instruments of betting were recovered and seized. Various exchanges of text messages could be traced in the mobile inviting bets using passwords to keep it secret. The username and password to access online betting website platform (www.skyexchange.com) were also found in the seized mobile. During the interrogation of the apprehended accused persons, it reveals that they have been betting through WhatsApp calling and by various means by code. Witnesses also stated that the petitioners are involved in illegal betting adversely impacting the young generation of the society.

It has also been alleged in the FIR that the apprehended persons have been running the illegal activities along with others and have siphoned Page No.# 4/11

money from many innocent citizens by dishonestly inducing various dubious means in and around Guwahati city.

4. I have heard Mr. A. Chamuah, learned counsel for the petitioners. Also heard Mr. P.N. Goswami, learned Additional Advocate General, Assam & Mr. M. Phukan, learned Public Prosecutor, Assam assisted by Mr. R.J. Baruah, learned Additional Public Prosecutor for the Respondent State.

5. Mr. Chamuah, learned counsel for the petitioners has submitted that the petitioners are innocent and they are not involved with the offences alleged in the instant case in any manner and their names have also not appeared in the FIR as accused. He has further submitted that the FIR named accused, who were arrested earlier, have been granted bail by this Court. He has also submitted that another person, namely Ajay Kumar Agarwal, apprehending arrest in the instant case, had preferred a pre- arrest bail application before the learned Additional Sessions Judge No.5, Kamrup (Metro) and the said learned Court below had granted anticipatory bail to him. It has further been submitted by the learned counsel for the petitioners that the petitioners were granted interim protection by a Coordinate Bench of this Court, vide order dated 13.12.2021 and, in accordance with the said order, both of them have appeared before the investigating police officer and have cooperated with the investigation of the case. It has also been submitted by learned counsel for the petitioners that the mobile phones of the petitioners have been seized by the investigating police officer and there is no necessity for their custodial interrogation in the instant case. In the background of the above submissions, learned counsel for the petitioners has strenuously Page No.# 5/11

argued for grant of privilege of pre-arrest bail to the petitioners.

6. Resisting the prayer, learned State counsel has submitted that the conduct of the petitioners are such that grant of anticipatory bail to them would adversely affect the entire investigation of the case, particularly when it has come out from the materials in the case diary that the mobile devices used in the commission of the offence have been destroyed by the petitioners, particularly by petitioner-Bikash Beria. Learned State counsel has further submitted that the petitioners were not even willing to cooperate with the investigation of the case even after they were granted interim protection, for which, as submitted, a further order was required to be passed by this Court extending three days' further time for their appearance before the investigating police officer, vide order dated 5.1.2022 and, only thereafter, both the petitioners have appeared before the investigating police officer.

7. Learned State Counsel has also submitted that the petitioners even did not cooperate with the investigation of the case while they had appeared before the investigating police officer. It has further been submitted by the learned State counsel that the petitioner-Bikash Beria was earlier arrested in the year 2015 in connection with similar offences. Referring to the materials in the case diary, learned State Counsel has submitted that there is specific instance that the mobile phones used in the commission of the alleged offence were damaged by the petitioner- Bikash Beria and he has also formatted the mobile phones used by him so as to disable the investigating agency from procuring/collecting evidence against them.

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8. Learned State Counsel has also submitted that in paragraph-5 of the orders dated 13.12.2021, granting interim protection to the petitioners, it was specifically mentioned that considering the fact that the names of the petitioners were not there in the FIR, they were granted interim protection. However, as submitted by the learned State Counsel, on examination of the case diary, the materials against the petitioners is found galore and, therefore, it has been submitted that although the names of the petitioners were not there in the FIR, yet during the course of investigation, sufficient incriminating materials have been collected against them justifying an in-depth further investigation considering the organized manner in which the offences are found to have been committed. Learned State Counsel has also vehemently argued that the offence, in the instant case, involves huge transaction of money and has been committed in an organized manner through electronic devices and, as such, it is a kind of economic offence and, therefore, should be treated as a class apart and be dealt with accordingly by this Court.

9. I have meticulously scanned the case diary as well as the record of the case. It is a fact that the petitioners had not appeared before the investigating agency after they were granted interim protection, vide order dated 13.12.2021, and rather the case diary reveals that they have sent a copy of the interim order to the investigating agency without any further action although the Condition No.1, in the said interim order, was to the effect that the petitioners shall appear before the investigating agency within seven days.

10. That being so, this Court, on hearing the respective counsel for the Page No.# 7/11

parties, vide order dated 5.1.2022, granted another three days' time to get their statements recorded, which order, however, was complied with by the petitioners.

11. As regards the submission made by the learned counsel for the petitioners with regard to damaging of mobile devices used for commission of the offences as well as the formatting of the same, learned counsel for the petitioner, Mr. Chamuah, has submitted that all such text messages/materials in such devices can be retrieved and the same can be done by the investigating agency without their custodial interrogation and, therefore, according to him, no custodial interrogation of the petitioners appears to be necessary.

12. The materials so far collected by the investigating agency indicate the manner and mode in which the betting, involved in this case, had taken place and how the money was deposited. The 'www.skyexchange.com' is an online betting website and they invite participants for the said betting by way of advertisement through the mobile phones of the accused petitioners as well as of other co-accused. There are at-least four statements to substantiate the above facts and the mode and manner of the betting involved in this case. That apart, so far petitioner-Bikash Beria is concerned, although the learned counsel for the petitioners has submitted that there is no instance in the record to show that in the year 2015 he was arrested in connection with similar offence, yet the case diary reveals that there is admission by himself that he was arrested for similar kind offences in the year 2015. It has also been found in the case diary that Rs.26,40,000/- was recovered from one of the co-

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accused in the instant case being the proceeds of the betting involved in the case. There is also material to indicate that the petitioner-Bikash Beria is involved in the games and betting in connection with the IPL cricket matches since last 10-12 years. The materials also to suggest that petitioner-Nitin Beria had formatted the mobile phone, which he was using for last two years, about one-and-half months ago, meaning thereby that he has done the same during the continuance of the investigation of the case. The materials in the case diary also reveal that investigation of the case is in its crucial stage. The materials in the case diary also indicate that the investigating officer is trying to retrieve the communications made through the mobile phones used by the petitioners, as specifically mentioned in the case diary.

13. This Court has taken note of the legal position that ordinarily arrest is a part of the process of investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information.

The Hon'ble Supreme Court in P. Chidambaram Vs. Directorate of Enforcement, reported in (2019) 9 SCC 24, held-

"76. In Siddharam Satlingappa Mhetre v. State of Maharashtra and Others, reported in (2011) 1 SCC 694, the Supreme Court laid down Page No.# 9/11

the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

77. After referring to Siddharam Satlingappa Mhetre, reported in (2011) 1 SCC 694 and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar and another, reported (2012) 4 SCC 379, the Supreme Court held as under:-

"19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran, reported in (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, reported in (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal, reported in (2008) 13 SCC 305.)".

14. From the materials in the case diary, it appears that the investigating agency has collected lot of materials in respect of involvement of the petitioners with the offences alleged and there are still sufficient materials to be disinterred which have either been withheld by Page No.# 10/11

the petitioners or are within their specific knowledge. It has also appeared from the materials in the case diary that a chain of huge number of persons are involved in the offences alleged in the instant case and the offences are allegedly committed in such an organized manner that it adversely impact the society. On evaluation of the available materials in the case diary, this Court is unable to find that the accusation against the petitioners are made only with the object of injuring or humiliating them by arresting them. As indicated in the foregoing discussions, there are specific materials collected against the petitioner and there are still further materials to be collected by the investigating agency.

15. This Court has also taken note of the submissions made by the learned counsel for the petitioners that the punishment for the offence of games and betting is only three years and, therefore, punishment is not severe that custodial detention of the petitioners are essential. However, the case has been registered under Section 420 of the Indian Penal Code also in which case the punishment can be extended to imprisonment for seven years.

16. Whatever it may be, in the larger interest of the public/society and in view of the materials so far collected and likely to be collected in the event of custodial interrogation and also on the basis of the observation made above, this Court is not inclined to grant the privilege of pre-arrest bail to the petitioners and, accordingly, the same stands rejected.

17. The interim pre-arrest bail granted to the petitioners, vide orders dated 13.12.2021, stands vacated.

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18. The pre-arrest bail applications of the petitioners are disposed of accordingly.

19. Return the case dairy.

JUDGE

Comparing Assistant