Gauhati High Court
W.P.(Crl.)/14/2023 on 2 June, 2025
1
GAHC010053422023
...
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(Crl.)/9/2023
1. Radha Chetia
S/O Late Rudreswar Chetia,
R/O Joyram Road, Jagun, Assam
2. Haren Gogoi
S/O Late Jatindra Nath Gogoi
R/O Tirap Gate District - Tinsukia Assam
3. Rakesh Jaiswal
S/O Late Parsuram Jaiswal Tirap Gate
District - Tinsukia Assam
4. Arunav Phukan
S/O Dilip Phukan
R/O 9th Mile Jagun Tinsukia Assam
5. Purna Borah
S/O Late Dhananjay Borah
R/O Jyoti Nagar Digboi Assam
6. Raju Khan
S/O Late Jaffar Khan
R/O R.G. Road Digboi Assam
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 1
2
7. Robi Kumar Singh
S/O Lt. Kumar Singh
R/O Indian Colony Margherita
District -Tinsukia Assam
.....Petitioners
-Versus-
1. The State of Assam
Represented by Secretary to the Govt. Of
Assam, Home and Political Department, Assam
Secretariat, CM Block, Second Floor, Dispur,
Guwahati-781006, Assam
2. The Superintendent of Police
Tinsukia Office of The Superintendent of Police
Tinsukia District Borguri-Ukonimuria Borguri
Bongali Gaon Tinsukia-786192 Assam
3. The Officer-In-Charge
Margherita Police Station
Thana Road Margerita Assam-78618
For Petitioner(s) : Mr. P. Bora, Sr. Advocate
Ms. K. Bhattacharyya, Advocate
Mr. A. M. Bora, Sr. Advocate
Mr. M. K. Das, Advocate
For Respondent(s) : Mr. D. Nath, Sr. Govt. Advocate
With W.P.(Crl.)/14/2023
......Respondents
1. Anjan Dutta
S/O Late Tapan Kumar Dutta
R/O Borbil No. 2 P.O. And P.S.-Digboi
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 2
3
District -Tinsukia Assam Pin-786171
.....Petitioner
-Versus-
1. The State Of Assam
To Be Represented by the Commissioner and
Secretary to the Government of Assam Home
and Political Department Dispur Guwahati-
781006
2. The Superintendent of Police
Tinsukia District -Tinsukia Assam Pin-786192
3. The Officer-In-Charge
Margherita Police Station Thana Road Margherita
Assam-786181
......Respondents
For Petitioner : Mr. P. Gogoi, Advocate
For Respondent(s) : Mr. D. Nath, Sr. Govt. Advocate
Date of Judgment : 02.06.2025
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT
(MRIDUL KUMAR KALITA, J)
1. Heard Mr. P. Bora, learned senior counsel assisted by Ms. K.
Bhattacharyya, learned counsel for the petitioner Nos. 1, 3, 5, 6 and
7 in WP(Crl.) No.9/2023 and Mr. A. M. Bora, learned senior counsel
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 3
assisted by Mr. M. K. Das, learned counsel for the petitioner No. 2
in WP(Crl.) No.9/2023. Also heard Mr. P. Gogoi, learned counsel for
the petitioner in WP(Crl.) No.14/2023 as well as Mr. D. Nath,
learned Senior Government Advocate appearing for the State
respondent in both the above-mentioned criminal writ petitions.
2. Since both the above-mentioned writ petitions, namely, WP(Crl.)
No.9/2023 and WP(Crl.) No.14/2023, the petitioners have sought
common relief of quashing of the FIR and protection from coercive
action and since in both the writ petitions, the FIR concern is the
common FIR, on the basis of which Margherita P.S. Case No.
42/2023 was registered under Section 120(B) of Indian Penal Code,
read with Section 17 of the Unlawful Activities (Prevention) Act,
1967.
3. Hence, both the writ petitions are proposed to be disposed of by
this common judgment.
4. The facts relevant for consideration of the above mentioned writ
petitions, in brief, are that on 25.02.2023, one S.I. (P), Bhabesh
Roy of Ledo Police Outpost under Margarita Police Station, had
lodged an FIR before the Officer-in-Charge of Margarita Police
Station, inter-alia, stating therein that there are some businessmen,
who have been encouraging unlawful activities of different groups
of ULFA (I), NSCM (IM), NSCM (KYA), etc. by funding them and
helping them in procuring weapons and emanations, build shelters
and camps, etc.
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 4
5. It is stated in the FIR that during investigation of one another case,
i.e., Margherita P.S. Case No. 42/2023, in which certain documents
were seized from, it reveals the names of the present petitioners
along with the phone numbers and it is alleged that they have
financially helped the ULFA (I).
6. On receipt of the said FIR, Margherita P.S. Case No. 61/2023 under
Section 120B of Indian Penal Code, read with Section 17 of the
Unlawful Activities (Prevention) Act, 1967 was registered.
7. Both the learned senior counsel for the petitioners in WP(Crl.)
No.9/2023 as well as the learned counsel for the petitioner in
WP(Crl.) No.14/2023 has submitted that the petitioners are
innocent businessmen and sometime in the year 2018-2019, the
Manager of the petitioner Nos. 1, 2, 3 and 6 were abducted by the
terrorist group, namely, ULFA from a bank.
8. It is also submitted that in the year 2022, the petitioner No. 4 of
WP(Crl.) No.9/2023 was himself abducted by the said banned
organization.
9. It is further submitted that when the family members of the
petitioners approached the police, they were advised to negotiate
with the extremist group and they did not receive any assistance
from the police.
10. The learned senior counsel for the petitioners has submitted that
the petitioners are themselves victims of illegal activities of the
banned extremist outfits and the same was reported to the police
officials.
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 5
11. However, instead of coming to the aid of the petitioners, the police
officials filed the impugned FIR against the present petitioners
making false accusation against the petitioners merely on the basis
that their names and phone numbers were found in some sheets of
paper, which were seized in connection with another case, i.e.,
Margherita P.S. Case No. 42/2023.
12. The learned senior counsels for the petitioners have submitted that
the accusation made in the FIR against the petitioners are so
absurd and inherently improbable that on the basis of which no
prudent person can ever reach a just conclusion that there are
sufficient grounds for proceeding against the petitioners in the case.
They submit that continuing the proceedings of Margherita P.S.
Case No. 61/2023 against the petitioner on the basis of the
impugned FIR dated 25.02.2023 would amount to abuse of the
process of and it would be for the ends of justice that the FIR
against the present petitioners are quashed.
13. In support of their submission, the learned senior counsel for the
petitioners have cited the ruling of the Apex Court in the case of
"State of Haryana Vs. Bhajan Lal, reported in 1992 Supp (1)
SCC 335.
14. The learned senior counsel for the petitioners have also submitted
that since one of the offence, under which accusation has been
made against the petitioners is under Section 17 of the Unlawful
Activities (Prevention) Act, 1967, hence, they could not prefer
application for anticipatory bail under Section 438 of the Code of
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 6
Criminal Procedure, 1973 due to the embargo of Section 43 D (4) of
the Unlawful Activities (Prevention) Act, 1967, which excludes the
applicability of Section 438 if a person is arrested in connection with
a case involving an accusation of having committed an offence
punishable under the Unlawful Activities (Prevention) Act, 1967.
15. However, the learned senior counsel for the petitioners have
submitted that since the petitioners are innocent and they have
been falsely implicated in this case merely on the basis of their
names and telephone number being found on piece of papers,
which were seized from some extremists and since prior to the said
seizure, the petitioners were themselves victim of the harassment
by extremist outfits, under such circumstances the High Court is not
bereft of its power to grant the relief of protection from arrest even
under Article 226 of the Constitution of India.
16. In support of their submission, the learned senior counsel for the
petitioners have cited the following rulings of the Apex Court:
i. Hema Mishra Vs. State of UP and Others, reported in
(2014) 4 SCC 453
ii. Arnab Manoranjan Goswami Vs. State of Maharashtra
and Others., reported in (2021) 2 SCC 427;
17. The learned senior counsel for the petitioners have also submitted
that in the meanwhile by order dated 12.04.2023 the petitioners
were granted interim protection from any coercive action in
connection with Margherita P.S. Case No. 61/2023 and they have
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 7
cooperated in the investigation, hence, the learned counsels for the
petitioners have submitted that the petitioners may be granted
absolute protection from arrest or an order for grant of bail in the
event of their arrest in connection with Margherita P.S. Case No.
61/2023.
18. Mr. P Gogoi learned counsel for the petitioner in WP (Crl.)
No.14/2023 has adopted the submissions of learned senior counsels
for the petitioners made in WP(Crl.) No.9/2023.
19. On the other hand, Mr. D. Nath, the learned Senior Government
Advocate appearing for the State respondent has submitted that
though the fact that the Manager of Petitioner No. 1, i.e., Radha
Chetia, and Manager of Petitioner No. 6, Raju Khan were abducted
by the banned militant organization, and in this respect, Lekhapani
P.S. Case No.58/2018, and Lekhapani P.S. Case No. 27/2020, were
also registered.
20. However, in respect of Managers of petitioner No. 2 and 3, there is
no such record regarding their abduction.
21. The learned senior counsel has also submitted that the Manager of
the brother of petitioner No. 5 was also kidnapped in the year 2018,
on the basis of which Lekha Pani P.S. Case No. 140/2018, was
registered.
22. However, he submits that the family members of the petitioners did
not approach the police officials for any assistance. He also submits
that during the investigation of Margherita P.S. Case No. 42/2023,
three sheets of paper were recovered in which the phone numbers
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 8
of the petitioners with their names were found written, and in one
of those sheets, Radha Chetia was mentioned as, "Sahayak
(Helper)".
23. The learned senior Government counsel, therefore, submits that
this is not a case where there is no material against the petitioner,
and the investigation is required to be done to reveal the truth in
this case.
24. He has also submitted the status report of the investigation of
Margherita P.S. Case No. 61/2023, submitted by the Additional
Superintendent of Police (Crime), Tinsukia, which shows that the
investigation has fairly progressed, and incriminating materials has
been found against the petitioner during the investigation and
therefore, he has submitted that both the writ petitions are liable to
be dismissed.
25. I have considered the submissions made by learned counsel for
both the sides in both the writ petitions and have gone through the
materials on record including the status report of the progress of
investigation in Margherita P.S. Case No. 61/2023.
26. Though, on perusal of the materials on record, it appears that the
petitioners were themselves at some point of time were victim of
the harassment by the banned terrorist outfits, and in respect of
which, three police station cases were also registered, namely,
Lekhapani P.S. Case No. 140/2015, Lekhapani P.S. Case
No.58/2018, and Lekha Pani P.S. Case No. 27/2020.
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 9
27. However, if we peruse the FIR, dated 25.02.2023, filed by Bhabesh
Roy SI of Police, which is impugned in these writ petitions, it
appears that there is a clear accusation made against the present
petitioners of having financially helped the ULFA (I), which is a
banned outfit. Hence, this is not a case where the allegations made
in the First Information Report, if they are taken at their face value,
do not constitute any offence.
28. The allegations made in the FIR are also not so absurd and
inherently improbable so as to brush aside the allegations in toto.
The veracity or truthfulness of the allegations made in the FIR can
be ascertained only after a thorough investigation into the
allegations which are made. But the fact remains that names and
phone numbers of the petitioners were found in some incriminating
papers seized from members of militant outfit, who was killed in
encounter.
29. It is also true that mere finding of names in the papers so seized in
itself is not sufficient to come to the conclusion of guilt of the
present petitioners in respect of the alleged offence, without any
other corroborating materials/evidence indicating to their complicity.
30. While exercising the writ jurisdiction, this Court cannot embark
upon an inquiry as to the reliability or genuineness or otherwise of
the allegations made in the FIR.
31. The Apex Court has observed in the case of "Niharika
Infrastructure VBP Ltd Vs. State of Maharashtra" reported in
2021 (19) SCC 401 as follows:
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 10
"33.4. The power of quashing should be
exercised sparingly with circumspection, as it
has been observed, in the "rarest of rare
cases" (not to be confused with the formation
in the context of death penalty).
33.5. While examining an FIR/complaint,
quashing of which is sought, the court cannot
embark upon an enquiry as to the reliability or
genuineness or otherwise of the allegations
made in the FIR/complaint.
33.6. Criminal proceedings ought not to be
scuttled at the initial stage.
33.7. Quashing of a complaint/FIR should be
an exception rather than an ordinary rule.
33.8. Ordinarily, the courts are barred from
usurping the jurisdiction of the police, since
the two organs of the State operate in two
specific spheres of activities and one ought
not to tread over the other sphere.
33.9. The functions of the judiciary and the
police are complementary, not overlapping.
33.10. Save in exceptional cases where non-
interference would result in miscarriage of
justice, the Court and the judicial process
should not interfere at the stage of
investigation of offences.
33.11. Extraordinary and inherent powers of
the Court do not confer an arbitrary
jurisdiction on the Court to act according to its
whims or caprice.
33.12. The first information report is not an
encyclopaedia which must disclose all facts
and details relating to the offence reported.
Therefore, when the investigation by the
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 11
police is in progress, the court should not go
into the merits of the allegations in the FIR.
Police must be permitted to complete the
investigation. It would be premature to
pronounce the conclusion based on hazy facts
that the complaint/FIR does not deserve to be
investigated or that it amounts to abuse of
process of law. After investigation, if the
investigating officer finds that there is no
substance in the application made by the
complainant, the investigating officer may file
an appropriate report/summary before the
learned Magistrate which may be considered
by the learned Magistrate in accordance with
the known procedure."
32. The powers of this Court while exercising writ jurisdiction under
Article 226 of the Constitution of India are very wide. However, as
observed by the Apex Court, conferment of wide powers requires
Court to be more cautious and it casts an onerous and more diligent
duty on the Court.
33. In the instant case also, it would be premature to exonerate the
petitioners from the accusations leveled against them in the
impugned FIR without a thorough investigation reaching its logical
conclusion. Hence, this Court is of considered opinion that this is
not a case where the end of justice would be served by quashing of
the impugned FIR. Rather, it would be served if the investigation is
permitted to reach its logical conclusion.
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 12
34. For the reasons discussed in the foregoing paragraphs, the prayer
for quashing of the impugned FIR is hereby dismissed.
35. As regards the question of protection from impending arrest of the
petitioners is concerned, it appears that petitioners in both the
above-mentioned writ petitions were granted interim protection
from arrest by this Court and it also appears that there is nothing
on record, which indicates that they have misused their liberty while
they were all under interim protection by this Court.
36. The Section 43D (4) of the Unlawful Activities (Prevention) Act,
1967, provides for an embargo in the applicability of the provisions
of Section 438 of the Code of Criminal Procedure, 1973 in relation
to any case involving the arrest of any person of having committed
an offence punishable under the Unlawful Activities (Prevention)
Act, 1967.
37. However, such a bar is applicable only if a prima facie case is found
against the petitioners. In the instant case the accusations is mainly
leveled against the petitioners on the basis of their names and
telephone number having been found in the three papers, which
were seized in connection with a different case.
38. Though, the allegations needs thorough investigation, however, it is
also not a case, where merely because of the said accusation, the
petitioners may be left remediless due to the embargo of Section
43D (4) of the Unlawful Activities (Prevention) Act, 1967.
39. The Apex Court has observed in the case of "Hema Mishra Vs.
State of UP and Others" (Supra) as follows:
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 13
"35. It is pertinent to mention that though
the High Courts have very wide powers under
Article 226, the very vastness of the powers
imposes on it the responsibility to use them
with circumspection and in accordance with
the judicial consideration and well-established
principles, so much so that while entertaining
writ petitions for granting interim protection
from arrest, the Court would not go on to the
extent of including the provision of
anticipatory bail as a blanket provision.
36. Thus, such a power has to be
exercised very cautiously keeping in
view, at the same time, that the
provisions of Article 226 are a device to
advance justice and not to frustrate it.
The powers are, therefore, to be
exercised to prevent miscarriage of
justice and to prevent abuse of process
of law by the authorities
indiscriminately making pre-arrest of
the accused persons. In entertaining
such a petition under Article 226, the
High Court is supposed to balance the
two interests. On the one hand, the
Court is to ensure that such a power
under Article 226 is not to be exercised
liberally so as to convert it into Section
438 CrPC proceedings, keeping in mind
that when this provision is specifically
omitted in the State of Uttar Pradesh, it
cannot be resorted to as back door
entry via Article 226. On the other
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 14
hand, wherever the High Court finds
that in a given case if the protection
against pre-arrest is not given, it would
amount to gross miscarriage of justice
and no case, at all, is made for arrest
pending trial, the High Court would be
free to grant the relief in the nature of
anticipatory bail in exercise of its power
under Article 226 of the Constitution. It
is again clarified that this power has to
be exercised sparingly in those cases
where it is absolutely warranted and
justified."
40. In the instant case, some of the petitioners were the victims of the
harassment by the banned terrorist outfits as has been admitted by
the state based on it.
41. Under such circumstances, mere finding their names in the
documents seized from the members of such terrorist organization,
in itself, does not make a case where the petitioners may be left
remediless in the event of their arrest. More so, when there is no
evidence or no materials to indicate that the petitioners have
misused their interim protection granted by this Court.
42. This Court is of the considered opinion that under the facts and
circumstances of this case if the petitioners of both the writ
petitions are not given protection against arrest it would amount to
gross miscarriage of justice.
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 15
43. Hence, the interim protection granted to the petitioners by order
dated 12.04.2023 is required to be continued.
44. Therefore, these writ petitions are disposed of with directions that
in the event the above-named petitioners in petition of WP(Crl.)
No.9/2023 and WP(Crl.) No.14/2023 are arrested in connection
with Margherita P.S. Case No. 61/2023 they shall be allowed to go
on bail of Rs. 30,000/- (Rupees Thirty Thousand only), each with
one surety of like amount to the satisfaction of the arresting
authority subject to the following conditions:
i. That the petitioners shall co-operate in the investigation.
ii. That the petitioners shall not directly or indirectly make any
inducement, threat or promise to any person who may be
acquainted with the facts of the case, so as to dissuade such
person from disclosing such facts of the case before the
Investigating Officer.
45. With above observation, both the writ petitions are hereby
disposed of.
JUDGE
Comparing Assistant
W.P.(Crl.)/9/2023
With W.P.(Crl.)/14/2023 Page 16
