Page No.# 1/ vs The Central Bureau Of Investigation ...
2025 Latest Caselaw 2071 Gua

Gauhati High Court

Page No.# 1/ vs The Central Bureau Of Investigation ... on 20 January, 2025

Author: Manash Ranjan Pathak

Bench: Manash Ranjan Pathak

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GAHC010233992024




                                                                            2025:GAU-AS:516

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

                                Case No. : Bail Appln./3454/2024

            SUDIPTA SEN
            S/O LATE NRIPENDRA NARAYAN SEN
            R/O HA 115, SECTOR III, SALT LAKE, KOLKATA-700106



            VERSUS

            THE CENTRAL BUREAU OF INVESTIGATION (CBI)
            SERVICE THROUGH PUBLIC PROSECUTOR OF POLICE CENTRAL BUREAU
            OF INVESTIGATION (CBI) ACB, GUWAHATI.



Advocate for the Petitioner   : DEBASISH DOLEY, MS A DEKA

Advocate for the Respondent : SC, CBI,




                                  BEFORE
                HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK

                                            ORDER

20/01/2025

Heard Mr. Ranbir Roy Choudhury, learned counsel for the petitioner and Mr. M Haloi, learned Special Public Prosecutor, for the opposite party/respondent CBI.

2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, namely, Sudipta Sen, son of Late Nripendra Narayan Sen, resident of Village-HA 115, Sector-III, Salt Page No.# 2/10

Lake, Kolkata, 70016 praying for his bail in Sessions Case No. 75/2023 arising out of CBI/ACB/Guwahati No. RC/61(S)/2014-Kolkata dated 26.12.2014 originated from Dhubri Police Station Case No. 256/2013 that was registered on 06.04.2013.

3. Initially one Bina Shah and her elder brother, Raju Shah on 03.04.2013 lodged an FIR before the Officer-in-Charge of Dhubri Sadar Police Station against the petitioner, the Chief Director of Saradha Reality India Limited alleging that both of them invested their hard earned money in the Dhubri Branch office of Saradha Reality India Limited. But sad to state that though the period for returning the matured amount have already expired they did not receive their principle as well as interest amount from the said office though the agents of the said company about a month back have obtained all the relevant documents for payment of their matured amount. To know whether the local officers of the Dhubri branch of said Saradha Reality India Limited have duly submitted their documents or not, when they visited the Dhubri office of the said company on 04.04.2013 the employees of the said Branch of Saradha Reality India Limited did not give any heed to their request and claim. As such by the said written FIR both the complainants requested before the authority of said Dhubri Sadar Police Station to make necessary enquiry into the matter and to do the needful for returning their invested hard earned money and thereby help their poor family.

4. The said FIR was firstly entered as Dhubri Sadar G.D. Entry No. 227 dated 06.04.2013 and subsequently registered as Dhubri P.S. Case No. 256/2013 under Sections 406/420 IPC corresponding to G.R. No. (DBB) 256/2013.

5. Pursuant to the Notification of the Government of Assam in the Political (Vigilance Cell) Department, Dispur dated 06.05.2013 and the Notification dated 09.12.2024 of the Government of India in the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, New Delhi, the investigation of said Dhubri P.S. Case No. 256/2013 was handed over to the CBI. Thereafter, the said Dhubri P.S. Case No. 256/2013 was registered as CBI/ACB/Guwahati No. RC/61(S)/2014-Kolkata dated 26.12.2014.

6. On 29.12.2016 the CBI in said CBI/ACB/Guwahati No. RC/61(S)/ 2014-Kolkata submitted its charge-sheet against the petitioner, the Chief Director of M/s. Saradha Reality India Limited and other Saradha Group of Companies and other accused persons of the case under Sections 120B/420/409 IPC read with Sections 4, 5 and 6 of the Prize Chits and Money Circulation Scheme Page No.# 3/10

(Banning) Act, 1978 stating therein that -- further investigation of the case as per the provisions of Section 173(8) Cr.P.C. continues to care of the developments in the lead case that needs to be reflected in the said case also.

7. Subsequently, the CBI on 12.08.2022 submitted supplementary charge-sheet in said CBI/ACB/Guwahati No. RC/61(S)/2014-Kolkata under Section 5 of the Assam Protection of Interest of Depositors (In Financial Establishments) Act, 2000 against the petitioner and other accused persons of the case in addition to the relevant provision of penal Section already submitted in its earlier charge-sheet dated 29.12.2016.

8. It is submitted on behalf of the petitioner that the complainants Smt. Mina Shah and Raju Shah deposited their money with M/s. Saradha Tours and Travels Private Limited under various investment schemes. It is also submitted that pursuant to the order of the Hon'ble Supreme Court in case of Subrata Chattoraj in Writ Petition (C) No. 401/2013 the investigation relating to the matters of M/s. Saradha Reality India Limited and other Saradha Group of Companies have been handed over to the CBI and accordingly, the Government of Assam and the Union of India issued necessary notification transferring all such cases of said M/s. Saradha Reality India Limited pending before different States of the country to the CBI.

9. It is submitted on behalf of the petitioner that he is languishing in judicial custody since 28.08.2013 at Presidency Correctional Home, Alipore, Kolkata in different cases pending in the States of West Bengal, Chhattisgarh, Odisha, Meghalaya and Jharkhand and that on an application dated 29.11.2016 submitted by the CBI praying for interrogation of the petitioner at said Correctional Home, Kolkata, he was interrogated and pursuant to the order of the learned Chief Judicial Magistrate, Kamrup (Metro), Guwahati the CBI on 06.12.2016 submitted the compliance report relating to the interrogation of the petitioner. On 03.12.2016 the CBI prayed for production warrant of the petitioner which was allowed and since then the petitioner is in custody.

10. It is submitted on behalf of the petitioner that except the present case, in the State of Assam in all other cases he has been released on bail by the Court.

11. In the present CBI case, the petitioner prayed for his bail which was earlier rejected by the Court of learned Sessions Judge No. 5, Kamrup (Metro), Guwahati on 18.04.2024. Thereafter, the petitioner filed another bail application in the present CBI case and the Court of learned Special Judge, CBI, Assam, Additional Court No.1, Guwahati by order dated 03.09.2024 rejected said bail Page No.# 4/10

prayer of the petitioner.

12. Petitioner submitted that for more than 10 years since 28.08.2013 he is custody in different CBI cases in the States of West Bengal, Chhattisgarh, Odisha, Meghalaya and Jharkhand and in the present case, as per the CBI he is in custody since 30.12.2016, the date when he was interrogated by the CBI in said CBI/ACB/Guwahati No. RC/61(S)/ 2014-Kolkata originated from Dhubri P.S. Case No. 256/2013. It is stated that even assuming the same, the petitioner is in custody for more than 8 years since completion of the investigation of filing the charge-sheet on 29.12.2016 wherein, supplementary charge-sheet was submitted by the CBI on 12.08.2022 by closing further investigation against the petitioner.

13. It is contended on behalf of the petitioner that the Court of learned Additional Sessions Judge No.5, Kamrup (M), Guwahati and the Court of learned Special Judge, CBI, Assam, Additional Court No. 1, Guwahati while rejecting the bail prayer of the petitioner on 18.04.2024 and 03.09.2024 mechanically and arbitrarily rejected his bail prayer on the basis of wrong appreciation of materials on records and the facts, without considering his case in proper perspective. As he has already been released on bail in other cases pending against him in the States of West Bengal, Chhattisgarh, Odisha, and Jharkhand he has already been released on bail, whereas in Meghalaya he has not yet been taken into custody by the CBI, therefore, the Court should consider his bail in the CBI case pending against him in the State of Assam.

14. It is also submitted by him that he is no way involved in the case with the alleged offence and has been purportedly and malafidely arrayed as an accused without any justifiable reasons and that he shall abide by any terms and conditions that may be imposed upon him by the Court while considering his bail.

15. It is also submitted on behalf of the petitioner that though the CBI in its charge-sheet dated 29.12.2016 submitted charge under Sections 120B/420/409 IPC read with Sections 4, 5 and 6 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 but the learned Trial Court on 12.01.2024 while framing charge did not framed the charge under Section 409 IPC and in absence of Section 409 IPC the other penal Sections are bailable offence and therefore, the petitioner is entitled for bail under Section 436A CrPC that stipulates the maximum period for which an under trial prisoner can be detained.

16. Mr. Choudhury, learned counsel for the petitioner submitted that human liberty is precious Page No.# 5/10

constitutional value that is undoubtedly subject to the regulation by validly enacted legislation and therefore, the citizen is subject to edicts of Criminal Laws and procedure and since the petitioner is in custody since 30.12.2016 and that CBI has already filed its charge-sheet as well as supplementary charge-sheet and also completed its investigation considering his detention for more than 8 years, his further custodial detention is not warranted in the case.

17. In all other cases of the CBI, the same investigating authority, in its cases relating to the States of West Bengal, Chhattisgarh, Odisha, and Jharkhand the petitioner has been released on bail and as per the charge sheet filed in the case there are about 58 numbers of prosecution witnesses to prove the prosecution case and since till date trial has not been commenced in said CBI/ACB/Guwahati No. RC/61(S)/ 2014-Kolkata, there is no chance of conclusion of the instant trial in near future, though the petitioner has undergone detention for more than 8 years.

18. As such, for ends of justice the petitioner has prayed for his bail in said CBI/ACB/Guwahati No. RC/61(S)/2014-Kolkata on any condition that may be imposed by the Court as deem fit and proper.

19. The respondent CBI filed its objection on 03.01.2025 against the bail of the petitioner stating that in said CBI/ACB/Guwahati No. RC/61(S)/ 2014-Kolkata, the petitioner has never been arrested till date.

20. With regard to said statement of the respondent CBI, Mr. Choudhury, learned counsel for the petitioner relied on the decision of the Hon'ble Apex Court in the case of Dhanraj Ashwini Vs. Amar S. Mulchandani and another decided by three Hon'ble Judges of the Supreme Court in Criminal Appeal No. 2501/2024 on 09.09.2024 wherein, their Lordships have held that - a police officer can formally arrest a person in relation to an offence while he is already in custody in the different offence as provided in Section 46 of the CrPC.

21. It is stated that the Hon'ble Supreme Court in the case of State of UP -Vs.- Deoman Upadhay reported in AIR 1960 SC 1125 held that submission to the custody by word or action by a person is sufficient so as to constitute arrest under Section 46 of the CrPC.

22. Mr. Roy Choudhury, learned counsel for the petitioner also denied the statements made by the CBI in its objection that the petitioner was not arrested in the concerned CBI Case involved in this Bail Application.

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23. CBI filed its objection against the bail prayer of the petitioner. In the said objection CBI stated that M/S. Saradha Realty India Limited (SRIL, in short) was registered on 06th June 2008 and in that regard the Registrar of Companies (ROC, in short), Kolkata, West Bengal issued the certificate of incorporation showing SRIL's Office at 455, Diamond Harbour Road, Kolkata. The CBI also stated that though as per the records of ROC, Kolkata, the petitioner was designated as SRIL's Director but in all internal correspondence of the said company, i.e., SRIL, he was referred to as its Chairman-cum- Managing Director. During the investigation made by the CBI it was disclosed from the Memorandum of Association of said SRIL, it was found that the said SRIL was to function in the areas of real estate but it started raising deposits from public under various schemes promising pre-determined return under the grab of sale of products/services, where the Saradha Group, since March 2009, started the money marketing business in the name of M/S. Saradha Realty India Limited and M/S. Saradha Garden Resorts & Hotels (P) Limited. For the purpose of advertisement different investment schemes were printed in the application form of M/S. SRIL like FR, FD and MIS and the SRIL printed pamphlets showing Commission (%) to be given to the different individuals ranking from Sales Representative to Development Supervisor.

24. The CBI stated that investors used to be dealt by the agents/ associates, who used to collect deposits from the investors by filling forms convincing the customers/investors to invest their money in different schemes of the Saradha Group and the agents/associates at the instance of the petitioner, showing them diversified areas of operation of the Sharada Group to infuse confidence upon them and thereby, used to lure the customers/ investors for their investments with the Saradha Group, promising them high returns that were on the much higher side than the other investments schemes/options available in the public domain. The agents/associates of the Saradha Group at the same time discouraged receipt of investment through cheques and insisted on cash. The investors on maturity of the investment used to approach the agents/associates or the Branch concerned with their original certificate for the refunds, which were not paid to the depositors/ investors.

25. The CBI also stated that the business of collection of Deposits by the Saradha Group from the investors/customers were managed through a Software named, SAFARI that was developed by M/S. Web Spiders Private Limited and the Saradha Group of Companies made such collection of money during the period from 2008 to 2013, mostly in the name of M/S. Saradha Realty India Limited and M/S. Saradha Tours & Travels Private Limited. After the enquiry being made by the Page No.# 7/10

Security & Exchange Board of India (SEBI, in short), the Saradha Group started collecting money from the public in the name of M/S. Saradha Housing Private Limited in place of M/S. Saradha Realty India Limited and M/S. Saradha Garden Resorts & Hotels Private Limited in place of M/S. Saradha Tours & Travels Private Limited, respectively.

26. The CBI further stated that the Registrar of Companies, Kolkata, West Bengal did not grant any permission to any of the Saradha Group of Companies to collect deposits from public. Finding the illegality in the business of collecting money from public, the SEBI in December 2010 directed the Saradha Group of Companies to wind up such business. The Reserve Bank of India (RBI, in short) in November 2014 clarified that the concerned Companies of the Saradha Group of Companies are not registered with the RBI and they have not approached the said Bank for Certificate of Registration as required under the provisions of the Reserve Bank of India Act, 1934 for commencing of carrying on the business of Non-Banking Financial Institution as has been defined under the said 1934 Act nor the RBI authorised them for collection of deposits from public.

27. The CBI stated that through canvassing by the agents/associates and advertisements, direct meetings with the petitioner, an impression was created that the Saradha Group of Companies have diversified line of business and very sound financial background, but neither the returns promised were viable nor they had any independent source to generate income to support their money marketing business. As a result, the said business could not sustain for long. All the commission, performance bonus, prices incentives to the agents used to be given from the daily collection. Similarly, the incidental overhead expenditure for running the Branches also used to be the sources from the daily collection. The CBI clarified that all the claims of the petitioner promising the investors high returns was ill designed and had a clear motive to cheat the investors of their money for personal gains and that the petitioner misappropriated huge amount of money of public/investors in connivance with other accused persons of the case.

28. Heard the submissions of both the parties and also considered the Judgments cited by Mr. Roy Choudhury, learned counsel for the petitioner.

29. Perused the Chargesheet of the case annexed with the petition.

30. The only contention of the petitioner is that he is in judicial custody for long more than 7 Page No.# 8/10

years in connection with the concerned CBI Case involved in this bail application without any trial and/or any further process and as such his further detention after such prolonged custody will cause grave prejudice to him.

31. In the last order of the Court, it is already mentioned that four of the prosecution witnesses have already been examined, who were thoroughly cross examined by the defence and 19.02.2025 is the next date for further evidence.

32. In the chargesheet it is specified that the petitioner is the only authorized signatories of all the Bank Accounts of the Saradha Group of Companies and no other person can withdraw the amount from the Bank with regard to those companies.

33. Public from whom the Saradha Group of Companies collected the money/deposits/investments, have not been returned on maturity with interest, not even the principal amount.

34. Chargesheet reveals that huge amount of crores are yet to be returned to the public, collected by way of investments/deposits, by the Dhubri Branch of M/S. Saradha Realty India Limited, including the informants/complainants of the case.

35. From the charge-sheet of the case, it can be seen that the petitioner is the prime accused in the case relating to economic offences involving enormous amount of public money involving huge loss of public funds. From the above, it appears that there is deep-rooted conspiracy to embezzle huge amount of public money.

36. In the case of Y S Jagan Mohan Reddy (Supra), the Hon'ble Supreme Court have held that economic offences constitute a class apart and needed 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 need to be viewed seriously and considered as grave offence affecting the economy of the country as a whole and thereby causing serious threat to the financial health of the country.

37. While considering the case of granting bail in matters involving economic offences, their Lordships in the case of Y S Jagan Mohan Reddy (Supra) also held that While granting bail the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, Page No.# 9/10

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 witness being tempered with, the larger interest of public/state and other similar organizations.

38. In the case of State of Gujarat -Vs- Mohanlal Jitmalgi Porwal reported in (1987) 2 SCC 364, the Hon'ble Supreme Court have held that 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 passion being aroused, but an economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless the consequences 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 coloured crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest.

39. It is settled by the Hon'ble Supreme Court in a catena of decisions that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detail examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence.

40. From the reasons above, the Court is of the view that the alleged crime was committed in a cool, calculated and organized manner causing wrongful loss of crores of rupees of the public, there are prima facie materials showing involvement of the petitioner in the deep rooted conspiracy with other co-accused persons of the case to cause a huge loss of the public as can be seen from the charge-sheet filed in the case.

41. As the trial of the case is progressing, as noted above, and since the matter relates to economic offence, considering the larger interest of public involving crores of rupees of public money, the Court is of the view that the petitioner is not entitled for his bail in said in Sessions Case No. 75/2023 arising out of CBI/ACB/Guwahati No. RC/61(S)/2014-Kolkata dated 26.12.2014, presently pending before the learned Special Judge, CBI, Assam, Additional Court No. 1, Page No.# 10/10

Guwahati.

42. Accordingly, this bail application of the petitioner, namely, Sudipta Sen, son of Late Nripendra Narayan Sen, in said Sessions Case No. 75/2023 pending before the learned Special Judge, CBI, Assam, Additional Court No. 1, Guwahati stands rejected.

JUDGE

Comparing Assistant