Page No.# 1/13 vs The State Of Assam
2025 Latest Caselaw 3201 Gua

Gauhati High Court

Page No.# 1/13 vs The State Of Assam on 17 February, 2025

                                                                      Page No.# 1/13

GAHC010006622025




                                                                 2025:GAU-AS:1620

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

                              Case No. : Bail Appln./99/2025

           TAPAN BORAH @ TARKIK BORA
           S/O ARUN KUMAR BORA,
           R/O HOUSENO. 21, NIRIBIRI PATH SUBWAY ANANDA PATH,
           P.S. BASISTHA,
           DIST. KAMRUP (M), ASSAM

           VERSUS

           THE STATE OF ASSAM
           REP BY THE LEARNED PP, ASSAM


Advocate for the Petitioner : MR SARFRAZ NAWAZ, SAMIM RAHMAN,MS. P KHATUN,MR
A W AMAN,MR. SURAJIT DAS

Advocate for the Respondent : PP, ASSAM,


                                  BEFORE
                     HONOURABLE MR. JUSTICE ROBIN PHUKAN
                                  ORDER

17.02.2025

Heard Mr. S. Nawaz, learned counsel for the accused. Also heard Mr. M. Phukan, learned Public Prosecutor for the State respondent.

2. This petition, under Section 483, BNSS is preferred by accused, namely, Tapan Borah @ Tarkik Bora, who has been languishing in jail hazot in connection with Sessions Case No. 350/2024, pending before the Court of Page No.# 2/13

learned Sessions Judge, Dibrugarh, arising out of Barbaruah P.S. Case No. 85/2024, under Sections 61(2)/316(5)/318(4) of the BNS, read with Sections 21(1)/21(2)/21(3)/23 of the Banning of Unregulated Deposit Schemes Act, 2019, for grant of bail.

3. It is to be noted here that the aforementioned case has been registered on the basis of an FIR lodged by one Dipti Baruah on 19.09.2024.

4. The essence of allegation against the present accused is that in the year 2021, one Akshay Jain persuaded the informant to invest in a company owned by Bishal Phukan assuring her that an investment of Rs. 1,00,000/- would yield a 30% return along with principal amount within a year. Accordingly, she invested a sum of Rs. 50,000/- in the year 2021 and after a few months, Akshay Jain informed her that her initial investment had substantially grown due to company's high returns, and in the mid of 2023, she was made to believe that her capital increased to Rs. 5,00,000/- and during that period, Bishal Phukan introduced her to Sumi Borah, Tarkik Borah and his other associates, who presented themselves as key figures in the company's management and further convinced her to invest additional amount promising higher return. Thereafter, in the month of August, 2023, she had invested another sum of Rs. 50,000/-, expecting a better financial future and in the year 2024, when she made a request to withdraw her total investment, which had purportedly grown to Rs. 6,00,000/-, they blatantly refused to return her money and thereby defrauded her under the pretext of lucrative returns.

5. Mr. Nawaz, learned counsel for the accused submits that the accused was shown arrested here in this case on 24.09.2024 and since then, he has been languishing in jail hazot. Mr. Nawaz also submits that the case has been registered under Section 316(5) of the BNS and under Section 318(4) BNS but criminal breach Page No.# 3/13

of trust and cheating cannot go together and in support of his submission he has referred to a decision of Hon'ble Supreme Court in Delhi Race Club (1940) Ltd. & Ors. Vs. State of Uttar Pradesh & Anr. Criminal Appeal No. 3114 of 2024. Further, Mr. Nawaz submits that the present accused is not the main accused, but only a beneficiary from the main accused and that the entire case relates to documents and the same has already been collected, and further custodial detention of the accused may not be required in the interest of investigation as charge-sheet has already been submitted. Mr. Nawaz further submits that as many as 25 witnesses have been cited in the charge-sheet and the trial will be protracted and therefore, it is contended to allow the petition.

6. On the other hand, Mr. Phukan, learned Public Prosecutor submits that the accused is involved in economic offences and as many as three other cases are pending against the present accused, and in view of Section 479(2) of the BNSS, the accused cannot be granted bail as he is involved in more than one offence and the economic offences form a class apart and in support of his submission, Mr. Phukan has referred to a decision of Hon'ble Supreme Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, reported in 2023 SCC OnLine SC 1486. Mr. Phukan, referring to a bail objection report of the Addl. S.P. Dibrugarh, submits that the petitioner is a flight risk and he may attempt to influence witnesses and may try to tamper with the evidences if released on bail. Therefore, Mr. Phukan has contended to dismiss the petition.

7. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record and also perused the scanned copy of the record received from the learned trial Court.

8. The principle of granting bail in post charge sheeted cases is well settled in catena of cases by Hon'ble Supreme Court. It is held that at that stage Page No.# 4/13

only merit may be considered. Reference in this context can be made to the decision in Gurcharan Singh & Ors vs. State (Delhi Administration) reported in (1978) 1 SCC 118, wherein it has been held that the overriding considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out.

8.1. In the case of Panchanan Mishra vs. Digambar Mishra, reported in (2005) 3 SCC 143, Hon'ble Supreme Court has held that besides looking into the gravity of the crime, apprehension of tampering with the evidence and threats to the life of the complainant and other witnesses, the court has to consider the position and the status of the accused with reference to eye witnesses is also required to be taken into account while granting bail. 8.2. In the case of the State Through C.B.I vs. Amaramani Tripathi reported in (2005) 8 SCC 21, Hon'ble Supreme Court has held that besides other factors, the character, behaviour, means, position and standing of the accused and likelihood of the offence being repeated and reasonable apprehension of the witnesses being tampered with; and danger, of course, of justice being thwarted by grant of bail are also has to be taken into account.

8.3. In Ram Govind Upadhyay vs. Sudarshan Singh, reported in (2002) 3 SCC 598, Hon'ble Supreme Court laid down the factors that must guide the exercise of the power to grant bail in the following terms:

"3. Grant of bail though being a discretionary order -- but, however, calls for exercise of such a discretion Page No.# 5/13

in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail-- more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

     (d) Frivolity    in   prosecution should    always     be
         considered    and it is only the       element     of
                                                               Page No.# 6/13

genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

8.4. In Prasanta Kumar Sarkar vs. Ashis Chatterjee, reported in (2010) 14 SCC 496, Hon'ble Supreme Court observed as under:

"9. 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 the 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.
                                                                  Page No.# 7/13

10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal."

8.5. In the case of P. Chidambaram vs. Directorate of Enforcement, reported in (2020) 13 SCC 791, Hon'ble Supreme Court has observed as under:

"16. Though we have heard the matter elaborately and also have narrated the contention of both sides in great detail including those which were urged on the merits of the matter we are conscious of the fact that in the instant appeal the consideration is limited to the aspect of regular bail sought by the appellant under Section 439 CrPC. While stating so, in order to put the matter in perspective it would be appropriate to take note of the observation made by us in the case of this very P. Chidambaram v. CBI [P. Chidambaram v. CBI, (2020) 13 SCC 337], which reads as hereunder:

21. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:

(i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution;

(ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;

(iii)reasonable possibility of securing the Page No.# 8/13

presence of the accused at the time of trial or the likelihood of his abscondence;

(iv) character, behaviour and standing of the accused and the circumstances which are peculiar to the accused;

                             (v) larger interest of the public or the
                                  State     and    similar     other
                                  considerations.

[Vide Prahlad Singh Bhati v. State (NCT of Delhi) (2001) 4 SCC 280]

22. There is no hard-and-fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner."

8.6. It is also well settled in the case of Tarun Kumar (supra) that economic offences form a class apart. In paragraph No. 22 Hon'ble Supreme Court has held as under:-

"22. Lastly, it may be noted that as held in catena of decisions, the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Undoubtedly, economic offences have serious repercussions on the development of the country as a whole. To cite a few judgments in this regard are Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation, Nimmagadda Prasad vs. Central Bureau of Investigation9, Gautam Kundu vs. Directorate of Page No.# 9/13

Enforcement (supra), State of Bihar and Another vs. Amit Kumar alias Bachcha Rai10. This court taking a serious note with regard to the economic offences had observed as back as in 1987 in case of State of Gujarat vs. Mohanlal Jitamalji Porwal and Another11 as under:-

5. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest..."

8.7. In the case of Nimmagadda Prasad vs. C.B.I., reported in (2013) 7 SCC 466; Hon'ble Supreme Court has held as under:-

"23. Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fibre of the country's economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2 SCC 364 : 1987 SCC (Cri) 364] this Court, while considering a request of the prosecution for adducing additional evidence, Page No.# 10/13

inter alia, observed as under:

5. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.

24. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the Page No.# 11/13

charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."

8.8. In the case of Vibhuti Kumar Singh vs. Pritish Kumar & Anr., Criminal Appeal No. 3426 of 2024, arising out of SLP (Crl.) No. 5719/2024, Hon'ble Supreme Court, while setting aside the order of bail granted by High Court held that it could have waited till examination of crucial witnesses by the trial court.

9. It appears that the accused was shown arrested here in this case on 24.09.2024 and since then, he is behind the bar for 117 days. It also appears that investigation of the case has already been completed and charge-sheet has been submitted before the learned trial Court on 06.12.2024 i.e. within the stipulated period of 90 days. Further, it appears that the learned trial Court could not proceed with the case as the report of the FSL being not made available before the learned trial Court, and that the I.O. has collected sufficient incriminating materials against the present accused.

9.1. It also appears that in connivance with his employees, namely, Mridul Das, Sumi Borah, Tapan Borah @ Tarkik, co-accused Bishal Phukan targeted and manipulated several investors including the informant and Akshay Kumar Jain by luring them with deceptive promises assuring guaranteed 30% profit on their Page No.# 12/13

invested capital, and the charge-sheet and other materials collected during investigation left this Court unimpressed that no offence under Section 316(5) of the BNS is made out against the present accused.

9.2. Since herein this case the offence involves accumulation of money, wealth or illicit profit at the cost of gullible by exploiting the loop holes in the system by violating established regulation and fiscal laws, and various forms of financial misconduct it can be termed as an economic offence. The learned Public Prosecutor has rightly pointed this out at the time of argument. And I find substance in the same.

9.3. Thus, examining the aforementioned facts and circumstances on the record, in the light of the principles laid down by Hon'ble Supreme Court in the case discussed herein above, this court is of the view that no case for granting bail is made out. Basically this court is weighed by following factors:-

(i) The offences in which the accused is charge sheeted are undoubtedly economic offence and being it forms a class apart this court looked into from an angle different from other offences;

(ii) Sufficient materials are there on the record to show complicity of the accused with the offence under which the accused is charge sheeted;

(iii) The offences are serious and carried punishment up to imprisonment for life;

(iv) Trial is yet to be started and before examination of some crucial witnesses, if bail is granted then the possibility of influencing the witnesses cannot be ruled out;

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(v) The position and the status of the accused with reference to the victim and the witnesses;

(vi) The accused is a flight risk and this fact is apparent from the bail objection of the Addl. S.P. of Dibrugarh;

(vii) Multiple numbers of case are pending against the accused; and

(viii) The interest of the community and its trust and faith in the system when balanced with that of the interest of the accused, the interest of the community outweighed the interest of the accused.

10. Though, Mr. Nawaz, learned counsel for the accused submits that the trial will be protracted here in this case, yet, it is premature to arrive at such a finding at this stage, and therefore, the submission of Mr. Nawaz cannot be accepted.

11. In view of above discussion and finding, this court is of the view that no case for extending the privilege of bail to the accused is made out and accordingly, the same stands dismissed. However, liberty is granted to the accused to approach the learned trial court after examination of two crucial witnesses i.e. the informant, namely, Dipti Baruah and Akshay Kumar Jain by the learned trial court.

JUDGE Comparing assistant