Gauhati High Court
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GAHC010273552024
2025:GAU-AS:1619
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./3903/2024
BISHAL PHUKAN
S/O- LATE BIPIN CH. PHUKAN,
R/O- FLAT NO-503,
PRABHANJALEE RESIDENCY, BISHNU NAGAR, P.S AND DIST-DIBRUGARH,
ASSAM
VERSUS
THE STATE OF ASSAM
REP BY THE PP, ASSAM
Advocate for the Petitioner : MR A.M. BORA, MR. D.K. BAIDYA.
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
17.02.2025
Heard Mr. A.M. Bora, learned Senior Counsel, assisted by Mr. D. Baidya,
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,
Bishal Phukan, who has been languishing in jail hazot in connection with
Sessions Case No. 350/2024 (arising out of Barbaruah P.S. Case No. 85/2024),
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pending before the court of learned Sessions Judge, Dibrugarh, 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 the accused 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. Bora, learned Senior Counsel for the accused submits that the
accused person was shown arrested herein this case on 24.09.2024 and since then
he has been languishing in jail hazot. Mr. Bora has also pointed out that
investigation of the case has already been completed and charge-sheet has been
submitted before the learned trial Court, but the learned trial Court could not
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proceed with the matter and charge could not be framed against the accused till
date for non production of the FSL report before the Court by the prosecution side,
on account of non-receipt of the same from the FSL. Further, Mr. Bora submits that
though the case has been registered under Sections 21(1)/21(2)/21(3)/23 of the
Banning of Unregulated Deposit Schemes Act, 2019, yet, the said Act is not
attracted here in this case and further Section 316(5) of the BNS, is also not
attracted here in this case. Mr. Bora also submits that the bank statement of the
complainant, which is available on the record, belied the statement of the
informant that she had invested a sum of Rs. 5,00,000/- and the amount of Rs.
5,00,000/- was credited in her account prior to lodging of the FIR on 16.04.2024,
and that the amount she invested, returned to her account. It is also the
submission of Mr. Bora that the accused has already been granted bail in other
cases where he was arrested and he was only shown arrest here in this case, and
that the accused will appear before the learned trial Court on each and every date,
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 him, 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. Further
submission of Mr. Phukan is that the economic offences form a class apart and
should be treated differently from that of other offences. In support of his
aforesaid 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 also submits
that the case has already been charge sheeted and after submission of charge
sheet bail can be granted only on merit and in the case in hand, the I.O. has
collected sufficient incriminating materials against the accused. Mr. Phukan,
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referring to a bail objection report of the Addl. S.P. Dibrugarh, submits that there is
reasonable apprehension that if bail is granted then he may attempt to influence
witnesses and may try to tamper with the evidences. Therefore, Mr. Phukan has
contended to dismiss the petition.
7. In reply to the submission of Mr. Phukan, learned Public Prosecutor, Mr.
Bora, learned Senior Counsel for the accused submits that Section 479(2) of the
BNSS would not be attracted here in this case.
8. 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
and also perused the bail objection petition of the Addl. S.P. Dibrugarh.
9. 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
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.
9.1. 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
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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.
9.2. In the case of the State Through C.B.I vs. Amaramani Tripathi
reported in (2005) 8 SCC 21, it has been emphasized 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.
9.3. 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 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
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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
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."
9.4. In Prasanta Kumar Sarkar vs. Ashis Chatterjee, reported in
(2010) 14 SCC 496, Hon'ble Supreme Court has 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
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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.
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."
9.5. 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
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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 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]
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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."
9.6. 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
Investigation8, Nimmagadda Prasad vs. Central
Bureau of Investigation9, Gautam Kundu vs.
Directorate of 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
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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..."
9.7. 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,
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
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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
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
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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."
9.8. In the case of Sanjay Chandra vs. CBI, reported in (2012) 1 SCC
40, Hon'ble Supreme Court while dealing with issue of granting bail in economic
offences held as under:-
"45. In Bihar Fodder Scam (Laloo Prasad case [Laloo
Prasad v. State of Jharkhand, (2002) 9 SCC 372] )
this Court, taking into consideration the
seriousness of the charges alleged and the
maximum sentence of imprisonment that could be
imposed including the fact that the appellants
were in jail for a period of more than six months
as on the date of passing of the order, was of
the view that the further detention of the
appellants as pretrial prisoners would not serve
any purpose.
46. We are conscious of the fact that the accused are
charged with economic offences of huge magnitude.
We are also conscious of the fact that the
offences alleged, if proved, may jeopardise the
economy of the country. At the same time, we
cannot lose sight of the fact that the
investigating agency has already completed
nvestigation and the charge-sheet is already
filed before the Special Judge, CBI, New Delhi.
Therefore, their presence in the custody may not
be necessary for further investigation. We are of
the view that the appellants are entitled to the
grant of bail pending trial on stringent
conditions in order to ally the apprehension
expressed by CBI.
47. In the view we have taken, it may not be
necessary to refer and discuss other issues
canvassed by the learned counsel for the parties
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and the case laws relied on in support of their
respective contentions. We clarify that we have
not expressed any opinion regarding the other
legal issues canvassed by the learned counsel for
the parties."
9.9. 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.
10. In the instant case, from a perusal of the scanned copy of the record of
the learned trial court reveals that the accused was shown arrested here in this
case on 24.09.2024 and since then, he has been languishing in jail hazoot 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.
10.1. Further, it appears that the I.O. has collected sufficient incriminating
materials against the present accused. It also appears that in connivance with his
employees, namely, Mridul Das, Sumi Borah, Tapan Borah @ Tarkik, he had
targeted and manipulated several investors including the informant and one Akshay
Kumar Jain by tempting them with deceptive promises assuring guaranteed 30%
profit on their 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.
10.2. 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
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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.
10.3. 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.
10.4. This court has taken note of the decision of Hon'ble Supreme Court in
the case of Sanjay Chandra (supra),and in view of the existence of reasonable
apprehension of influencing the witnesses in the event of granting bail to the
accused in the present case, it stands in a different footing from that of the case of
Sanjay Chandra(supra). In the case in hand, this court is weighed by the
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 it 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 carry 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
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influencing the witnesses cannot be ruled out;
(v) The position and the status of the accused with reference
to the victim and the witnesses;
(vi) Multiple numbers of case are pending against the
accused; and
(vii) 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.
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. Accordingly,
the petition 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.
And in the event of filing such petition the learned trial court shall consider the
same in accordance with law.
JUDGE
Comparing Assistant
