Sri Indreswar Kalita @ Indra Kalita vs The State Of Assam
2025 Latest Caselaw 3427 Gua

Gauhati High Court

Sri Indreswar Kalita @ Indra Kalita vs The State Of Assam on 24 February, 2025

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GAHC010028102025




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

                               Case No. : Bail Appln./351/2025

            SRI INDRESWAR KALITA @ INDRA KALITA
            S/O LATE JADAV KALITA @ JADAB DAS, RESIDENT OF 4TH FLOOR,
            NIVANA TOWER, R G BARUAH ROAD, NEAR RAJDHANI NURSERY,
            GUWAHATI, PS DISPUR, DIST KAMRUP METRO



            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE LD PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR BHARGAV DAS, MR. C PAUL,MR. S BORTHAKUR,MR K P
PATHAK

Advocate for the Respondent : PP, ASSAM,




                                   BEFORE
                 HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                           ORDER

Date : 24.02.2025

1. Heard Mr. K. P. Pathak, the learned senior counsel assisted by Mr. S. Borthakur, the learned counsel for the petitioner. Also heard Mr. M. Phukan, the learned Public Prosecutor for the State Page No.# 2/9

Respondent.

2. This application under Section 483 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has been filed by the petitioner, namely, Sri Indreswar Kalita @ Indra Kalita, who has been detained behind the bars since 29.01.2025, in connection with Vigilance P. S. Case No. 02/2024 under Section 13(1)(b)/13(2) and Section 12 of the Prevention of Corruption Act, 1988.

3. The gist of accusation in this case is that while the petitioner was serving as the Secretary to the Government of Assam, Excise Department, a regular inquiry(RE) was initiated against him, as per the order dated 04.01.2024, issued by the Chief Minister of Assam following certain allegations regarding his possessing disproportionate assets beyond his known source of income.

4. The report submitted in respect of the aforesaid regular inquiry recommended initiation of a criminal case against the present petitioner, accordingly, an FIR was lodged on 03.03.2024 against the present petitioner alleging that he is possessing disproportionate assets beyond his known source of income.

5. The learned senior counsel for the petitioner has submitted that after initiation of the investigation, the Investigating Officer issued notices under Section 41A of the Code of Criminal Procedure, 1973 against the petitioner on three occasions, i.e., on 03.04.2024, 10.04.2024 and 22.04.2024. It is further submitted that on all three occasions, the petitioner appeared before the Investigating Officer and cooperated in the investigation.

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6. The learned senior counsel for the petitioner has submitted that the Investigating Officer had also made seizure of certain documents and articles from the possession of the present petitioner. It is submitted by the learned senior counsel for the petitioner that the passport of the present petitioner was also seized.

7. The learned senior counsel for the petitioner has submitted that though, the petitioner was cooperating in the investigation, however, on 29.01.2025 at about 12.30 pm, the petitioner received a telephonic call from the Investigating Officer, summoning him to the Office of the CM Vigilance Cell. Accordingly, the petitioner went there and, on his arrival, he was arrested in connection with Vigilance P.S. Case No. 02/2024.

8. The learned senior counsel for the petitioner has submitted that though, the notice under Section 50 of the Code of Criminal Procedure, 1973 was served on him, however, it does not conform to the mandated requirements of Section 50 of the Code of Criminal Procedure, 1973 as well as Article 22 (1) of the Constitution of India inasmuch as the grounds of arrest were not communicated to him as mandated by the law.

9. It is submitted by the learned senior counsel for the petitioner that the notice served on the petitioner merely state about the penal provision of the law under which he was booked and the case number and nothing beyond that, so as to inform the petitioner regarding the grounds of his arrest in connection with the aforesaid case.

10. The learned senior counsel for the petitioner has submitted that informing a person arrested of the grounds of his arrest is a mandatory requirement of the Article 22 (1) of the Constitution of India. He further Page No.# 4/9

submits that the information of grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds of arrest is imparted and communicated to an arrested person effectively in the language which he understands. However, in the instant case, nothing of that sort was done, which, he submits, itself entitles the petitioner to get bail in this case

11. In support of his submission, the learned senior counsel for the petitioner has cited the following rulings of the Apex Court:

i. Vihan Kumar Vs. State of Haryana and Another reported in 2025 SCC Online SC 629 ;

ii. Prabir Purkayastha Vs. State (N), City of Delhi reported in (2024) 8 SCC 254 ;

iii. P. Chidambaram vs CBI reported in (2020) 13 SCC 337 ;

iv. State of Chattisgarh vs Gurjinder Pal Singh reported in 2022 SCC Online SC 2270.

12. The learned senior counsel for the petitioner has further submitted that in the meanwhile, the petitioner has been placed under suspension by notification dated 06.06.2025 issued by the Secretary to the Government of Assam, Personnel (A) Department.

13. The learned senior counsel for the petitioner has submitted that since initiation of the regular inquiry against the present petitioner, he has been cooperating with the Inquiry Officer as well as after filing of the FIR with the Investigating Officer.

14. As the passport of the petitioner has also been seized, the learned senior counsel for the petitioner submits that there is also no flight risk of the Page No.# 5/9

petitioner.

15. The learned senior counsel for the petitioner submits that the detention of the petitioner is unjustified and not necessary for the fair completion of the investigations, therefore, he prays for allowing the petitioner to go on bail.

16. On the other hand, the learned Public Prosecutor, Mr. M. Phukan has vehemently opposed the grant of bail to the present petitioner. He submits that the petitioner was fully aware about the case which is pending against him and he was also aware about the regular inquiry conducted against him, therefore, the plea that the grounds of arrest were not made known to him is not sustainable.

17. He further submits that as there are incriminating materials against the petitioner in the case diary of having been indulged in large-scale corruption while holding a responsible post of the government, he is not entitled to get bail. He further submits that petitioner being a high-ranking government servant may tamper with the evidence and influence the witnesses if he is released on bail at this stage. He also submits that the petitioner was not cooperating with the Investigating Officer and therefore, it necessitated his arrest and the custodial detention of the petitioner is necessary for fair completion of the investigation.

18. I have considered the submissions made by the learned counsel for both the parties and have gone through the materials available on record, including the case diary of Vigilance P.S. Case No. 02/2024. I have also gone through the judgments relied upon by the learned counsel for both the parties.

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19. It appears from the acknowledgements issued by the Investigating Officer of the case to the petitioner that on three different occasions the petitioner had complied with the notice under Section 41A of the Code of Criminal Procedure, 1973 which were issued to him by the Investigating Officer of the case. He had appeared before the Investigating Officer in pursuant to the said notices and cooperated in the investigation.

20. It also appears that the notice issued to the petitioner under Section 50 of the Code of Criminal Procedure, 1973, on 29.01.2015, mainly mentions about the Vigilance P.S. Case No. 02/2024 and the penal provisions of the Prevention of Corruption Act. Nothing beyond that has been stated in the notice so that sufficient knowledge of the basic facts constituting the grounds of arrest is imparted and communicated to the petitioner.

21. In this regard, the observations made by the Apex Court of India in the case of "Vihaan Kumar Vs. State of Haryana" (Supra) are relevant and same are reproduced here in below:

"21. Therefore, we conclude:

a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1);

b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved;

                      c)    When arrested accused alleges non-
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compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1);

d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article.

Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non- compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1);

e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22(1) and other mandatory safeguards has been made; and

f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established."

22. In the instant case, it appears that the petitioner was appearing before the Investigating Officer in pursuant to the notice issued to him under Section 41A of the Code of Criminal Procedure, 1973 on all the occasions. However, while arresting the petitioner, the grounds of his arrest were not Page No.# 8/9

properly communicated to him which in the considered opinion of this court vitiates his arrest and this in itself is sufficient for granting the bail to the present petitioner.

23. Moreover, it also appears that the passport of the petitioner has been seized by the Investigating Officer and he has also been placed under suspension by the Government of Assam. Thus, it also appears that there is no flight risk and the petitioner may not be able to tamper with the evidence in any manner. Further, the period in respect of which the allegations are leveled against the petitioner in the FIR relates to 01.3.2000 to 31.12.2018 and sufficient materials are already collected by the Investigating Officer in this regard and there seems to be no possibility of tampering with the evidence, which has already been collected by the Investigating Officer.

24. Under the above facts and circumstances, this Court is of considered opinion that if the petitioner cooperates in the investigation and makes himself available for interrogation before the Investigating Officer as and when required for the sake of fair completion of the investigation, his custodial detention may not be further necessary.

25. In view of the above discussion, the petitioner, namely, Sri Indreswar Kalita @ Indra Kalita is allowed to go on bail of Rs.1,00,000/- with two sureties of like amount subject to the satisfaction of the learned Special Judge, Assam with following conditions:

i. the petitioner shall not leave the jurisdiction of the Court of learned Special Judge, Assam without prior leave from the said Court;

ii. the petitioner shall not directly or indirectly make any Page No.# 9/9

inducement threat or promise to any person or persons who may be acquainted with the facts of the case so as to dissuade such person from disclosing such facts before the Investigating Officer.

iii. Any violation of the above conditions imposed on the petitioner may be a good ground for exercising the powers under Section 483 (3) of BNSS, 2023 by the Court of learned Special Judge, Assam for committing him to custody.

26. With the above observation, this bail application is disposed of.

27. Send back the case diary.

JUDGE

Comparing Assistant