Mahbubul Hoque vs The State Of Assam
2025 Latest Caselaw 4314 Gua

Gauhati High Court

Mahbubul Hoque vs The State Of Assam on 21 March, 2025

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GAHC010060392025




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

                                Case No. : Bail Appln./841/2025

            MAHBUBUL HOQUE
            S/O- LATE IBRAHIM ALI, R/O- GYAN KUTIR, NIRIBILI PATH GHORAMARA
            CHARIALI, BHETAPARA GUWAHATI 27



            VERSUS

            THE STATE OF ASSAM
            REP BY THE PP, ASSAM



Advocate for the Petitioner   : MR A M BORA, MR. D K BAIDYA, MR. M S HUSSAIN,MR. V A
CHOWDHURY

Advocate for the Respondent : PP, ASSAM, A W AMAN(INFORMANT),MR. SURAJIT
DAS(INFORMANT),SAMIM RAHMAN(INFORMANT),MR SARFRAZ NAWAZ(INFORMANT)
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                          BEFORE
           HONOURABLE MRS. JUSTICE MITALI THAKURIA
                                     ORDER

Date : 21.03.2025

Heard Mr. A. M. Bora, learned Senior Counsel assisted by Mr. D. K. Baidya, learned counsel for the petitioner. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State respondent No. 1 and Mr. S. Nawaz, learned counsel for the respondent No. 2/informant.

2. This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused/petitioner, who has been arrested in connection with Dhekiajuli P.S. Case No. 55/2025, under Sections 318(4)/316(5)/336(3) of BNS and Section 11(1) of the Public Examination (Prevention of Unfair Means) Act, 2024.

3. It is submitted by Mr. Bora, learned Senior Counsel for the petitioner, that prior to lodging of present F.I.R., the authority concerned had lodged 2 (two) F.I.Rs. for the same cause of action, which were registered as Patharkandi P.S.

Case No. 54/2025 and Patharkandi P.S. Case No. 55/2025; that in the 2 nd F.I.R., i.e. Patharkandi P.S. Case No. 55/2025, the fact alleged is that out of 274

students, who appeared in Class 12th Central Board of Secondary Education (CBSE) Physics Exam at Central Public School (CPS), Patharkandi, 15 students were from Adarsha Bidyalaya, Patharkandi and 45 students were from CPS, Patharkhandi and the other 214 students were enrolled as students of CPS, Patharkandi, but they never attended any classes in CPS, Patharkandi and did Page No.# 3/12

their classes throughout the period at Vision-50, a special coaching program under University of Science and Technology (USTM); that the law and order situation was created by these 214 students for not being provided the

assistance by the invigilators at the time of 12 th examination which was promised to them at the time of admission and some of them were unaware that they were enrolled in CPS, Patharkandi instead of the students of Vision-50, USTM; that some students paid Rs. 5,00,000/- to USTM to pass the examination and the present petitioner- Mahbubul Hoque, who is the Founder Chancellor of the USTM, along with other authorities, cheated by breaching the trust of the students.

4. On the basis of these allegations, the present petitioner, along with some others, were arrested and forwarded to judicial custody on 22.02.2025 and since then, the present petitioner is in custody. However, in both the cases, i.e. Patharkandi P.S. Case No. 54/2025 and Patharkandi P.S. Case No. 55/2025, the Co-ordinate Benches of this Court granted bail to the petitioner vide Orders dated 03.03.2025 & 11.03.2025, passed in Bail Appln. No. 563/2025 & Bail Appln. No. 576/2025, respectively.

5. Mr. Bora, further submitted that while dealing with the 2 nd bail application, i.e. Bail Appln. No. 576/2025, the respondent through the Additional Secretary to the Government of Assam, Home and Political Department, Dispur, had filed an affidavit on 07.03.2025 objecting the bail prayer of the accused/petitioner, but surprisingly the said affidavit did not disclose about the registration of the present F.I.R., though the same was registered on 24.02.2025, i.e. much prior to Page No.# 4/12

the date of filing of the affidavit by the State respondent and thereby suppressed the registration of the present F.I.R. against the present petitioner, which is in complete violation of the mandatory provision of the Constitution of India. Further submission is that though the F.I.R. of the present case was registered on 24.02.2025, but the present accused/petitioner was shown arrest in connection with the present case, i.e. Dhekiajuli P.S. Case No. 55/2025, under Sections 318(4)/316(5)/336(3) of BNS and Section 11(1) of the Public Examination (Prevention of Unfair Means) Act, 2024, on 13.03.2025. According

to the learned counsel the 2nd and the subsequent F.I.R. cannot be registered on the same cause of action and at best it can be considered as a statement made under Section 162 Cr.P.C. when the plain reading of the F.I.R. discloses that the cause of action of the present F.I.R. is same with the other 2 (two) F.I.Rs., which were earlier registered against the present petitioner under the Patharkandi Police Station, wherein he was already granted bail. In that context, learned Senior Advocate relied on the decision of the Hon'ble Apex Court passed in the case of Uday Chand & Ors. Vs. Sheikh Mohd. Abdullah, Chief Minister, J & K & Ors., reported in (1983) 2 SCC 417, wherein it is observed

that if the lodging of the 2 nd F.I.R. is suppressed by the State Authority at the time of granting bail, the petitioner even can be treated as free citizen. He accordingly emphasized on paragraph No. 5 of the said judgment, which reads as under:

"5. Mr Kacker stated before us that the petitioners were enlarged on bail in pursuance of the Order passed by this Court on March 2, 1981 but they were subsequently arrested for some other offences alleged to have been committed by them prior to March 2, 1981. We are quite amazed at this statement and we should have expected that if after the order of bail passed by us the authorities of the State considered it fit to arrest any of the petitioners for any other offences, it was their bounden duty to Page No.# 5/12

apprise this Court before taking these persons in custody, especially when to disclosure was made to us when we passed the order of bail that any case or cases were under investigation against any of the petitioners. We regret that this elementary courtesy to this Court was not shown. We would like to reiterate that the petitioners shall be treated as free citizens in spite of the fact that they have been subsequently arrested which arrests are clearly contrary to the order of bail passed by this Court. "

6. Learned Senior Advocate also relied on a decision of this Court passed in the case of Kamal Dutta Vs. Union of India & Ors., reported in (2016) 1 GLR 539, wherein this Court, considering the view of the Hon'ble Apex Court passed in case of Uday Chand (supra), had observed that it is the bounden duty of the State Authority to apprise the Court before taking the person into

custody in subsequent/2nd F.I.R. This Court also considered that in such circumstances even the arrested person can be treated as a "free man". The relevant paragraph of the observation made by this Court is extracted herein below:

"In Uday Chand Vs. Sk. Mohd. Abdullah, Chief Minister, J& K, (1983) 2 SCC 417, the Apex Court deprecated the practice of withholding information from the Court about the requirement to arrest the accused in other cases. It was held that if after order of bail is passed by the Court, the authorities of the state consider it fit to arrest a released person for any other offence, it was their bounden duty to apprise the Court before taking such person in custody. In the facts of that case the arrests were held to be contrary to the bail order passed by the Apex Court and accordingly the petitioners of that case were released from custody treating them to be free citizens. Having regard to the above, Court is of the view that the accused Shri Tapan Das should now be released as his continued detention has become clearly untenable. As noticed above, he has been granted bail by this Court in one out of the 4 cases i.e., in Pasighat PS Case No.56/2014. He shall now be released on bail in connection with other three cases, namely, Itanagar PS Case No. 304/2013, Basar PS Case No. 09/2014 and Aalo PS Case No.07/2014 subject to the condition that he shall cooperate with the investigation of the cases and that he shall also appear before this Court on the next date.

Since a finding has been recorded that the initial detention of Shri Tapan Dutta is illegal and amounted to violation of Articles 21 and 22 of the Constitution of India, question of compensation may also have to be gone into by this Court. On this point, Court would like to keep the matter pending. Respondents may file additional-affidavit Page No.# 6/12

on this issue, if so advised.

List on 06-04-2015 on which date Shri Tapan Dutta shall appear before this Court. Accordingly, Shri Tapan Dutta can now walk out of this Court as a free man."

7. Mr. Bora further relied on another decision of Hon'ble Apex Court passed in the case of Babubhai Vs. State of Gujarat & Ors., reported in (2010) 12 SCC 254, wherein also, it is observed that the subsequent F.I.R. or any further complaint in connection with the same or connected offence relating to the same incident or incidents which are the part of some transactions is not permissible. However, if 2 (two) F.I.Rs. pertain to 2 (two) different incidents, in

that case, the 2nd F.I.R. is permissible.

8. Relying upon the above referred judgments, Mr. Bora, learned Senior Counsel for the petitioner, submitted that from the bare reading of all the F.I.Rs., it is very much evident that the same have arisen out of same cause of action which arose under the jurisdiction of Patharkandi Police Station. Whereas, the present F.I.R. has been lodged on same set of allegation with the Dhekiajuli Police Station, wherein no such cause of action has taken place. The present F.I.R. has been lodged by the informant, who is the father of a student out of those 214 students who appeared for the examinations from CPS, Patharkandi and being so the cause of action does not fall under the jurisdiction of the Dhekiajuli Police Station. Further submission is that similar to the present F.I.R., 3 (three) more F.I.Rs. were lodged in different parts of the State, being Gossaigaon P.S. Case No. 31/2025, Kokrajhar P.S. Case No. 61/2025 and Barpeta P.S. Case No. 72/2025, on the same subject matter which is also not permissible being the subsequent F.I.Rs. for the same transaction, as clearly Page No.# 7/12

held by the Hon'ble Apex Court in cases of T. T. Antony Vs. State of Kerala [(2001) 6 SCC 181] and Babubhai (supra). Accordingly, the accused/petitioner, along with other accused, preferred 3 (three) criminal petitions, being Crl. Pet. No. 301/2025, Crl. Pet. No. 318/2025 & Crl. Pet. No. 320/2025, for quashing of the said F.I.Rs., wherein, this Court, in all the matters, directed the police not to take any coercive action against the petitioner until further.

9. Further Mr. Bora submitted that at the time of pendency of the bail application before the learned Trial Court below, the informant filed an affidavit sworn by him stating that he lodged the F.I.R. only on the coercions/undue influence by police personnel and other authorities and on some misconceptions. He erroneously brought out allegations against the present petitioner and some other members of the USTM. But, after lodging of the F.I.R., he came to know the material facts and that the present petitioner is not involved in the alleged offence and accordingly, by swearing that affidavit, it is declared by him that the present petitioner is no way involved in the alleged offence in connection with Dhekiajuli P.S. Case No. 55/2025 and hence he has no objection if the accused/petitioner is granted bail in connection with the present case. But, in spite of the said affidavit filed by the informant, the learned Trial Court below rejected the bail prayer of the present petitioner only considering the nature and gravity of the offence.

10. Mr. Bora further submitted that from the allegation brought against the present petitioner, it is seen that the same does not attract a case under Page No.# 8/12

Sections 316(1)/316(5)/318(1)/318(4)/ 336 of BNS. He further submitted that the case is also registered under Section 11(1) of The Public Examination (Prevention of Unfair Means) Act, 2024 and as per Section 12 of the said Act, officers empowered to investigate the case under this Act should not be below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police. But, from the F.I.R. itself, it is seen that the case was endorsed to one Dipak Talukdar, who is an S.I. of Police, and thus, he is not authorized to investigate the offence under Section 11(1) of the said Act. Further, the Act also specifies that even if there is any change of investigating officer, it should be intimated to the Elaka Magistrate and without any intimation to the Elaka Magistrate, the investigating officer cannot be changed. Further he submitted that while dealing with the above referred criminal petitions, the learned Public Prosecutor also agreed to this proposition of law. But, here in the instant case, there is no mention regarding the change of investigating officer or about the intimation of the same to the concerned Elaka Magistrate as the present Investigating Officer is not authorized to investigate the present case which is registered under Section 11(1) of The Public Examination (Prevention of Unfair Means) Act, 2024.

11. Accordingly, Mr. Bora, learned Senior Counsel for the petitioner, submitted that considering all these aspects of the case, viz-a-viz the medical condition of the present petitioner and also considering the fact that the petitioner is behind the bar since 22.02.2025, he may be enlarged on bail. Further it is submitted that though the accused/petitioner was already granted bail in connection with Bail Appln. No. 563/2025 & Bail Appln. No. 576/2025 on 03.03.2025 & 11.03.2025 respectively, but he is still in custody since 22.02.2025, as he was shown arrest in connection with this case on 12.03.2025 and the Investigating Page No.# 9/12

Officer got sufficient opportunity to interrogate him keeping him in custody. The accused/petitioner, being the permanent resident of his addressed locality, is ready to furnish suitable surety and ready to abide by any conditions imposed on him and further is also ready and willing to co-operate the I.O. in further investigation of this case.

12. Mr. Nawaz, learned counsel appearing on behalf of the informant/respondent No. 2, submitted in this regard that the informant is not objecting to the bail prayer of the present petitioner and that he had already filed an affidavit stating that the case was filed on some misunderstanding/misconception of facts.

13. On the other hand, Mr. Das, learned Additional Public Prosecutor, raised vehement objection and submitted that though initially the Sub-Inspector of Police- Shri Dipak Talukdar was endorsed with the case, but there may be a subsequent development and there may be change of investigating officer as there is no bar in changing the investigating officer. But, without perusal of the Case Diary, he is not in a position to submit as to whether there is any change of investigating officer or not. He further submitted that the affidavit filed by the informant shows a clear nexus between the informant and the accused person and hence, if the accused/petitioner is released on bail at this stage, there is every probability of influencing the witnesses or hampering with the investigation of the case.

14. In that context, Mr. Bora, learned Senior Counsel for the petitioner, Page No.# 10/12

submitted that such allegation should not be brought by the learned Additional Public Prosecutor and the petitioner has every right to participate in the proceeding even at the stage of bail and in that context also, he relied on a decision of Hon'ble Apex Court passed in the case of Jagjeet Singh & Ors. Vs. Ashish Mishra alias Monu & Anr., reported in (2022) 9 SCC 321, and emphasized on paragraph No. 24.2 of the judgment, which reads as under:

"24.2 Second, where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing. If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may result in grave miscarriage of justice."

15. After hearing the entire submissions made by the learned counsels for both sides and also on perusal of the materials available on record, it is seen that the present F.I.R. is admittedly instituted basically on the same cause of action and it is also a fact that the cause of action of the entire case arose under Patharkandi Police Station and not under the jurisdiction of Dhekiajuli Police Station. Further, from the plain reading of the F.I.R., it is seen that the cause of action arising out of the allegations are found similar and under the same transactions. It also cannot be denied that at the time of filing the affidavit by the State Authorities, there is no whisper with regard to the registration of the present case in Dhekiajuli Police Station, though the F.I.R. was registered much prior to the filing of the affidavit by the State Authorities. Admittedly, the right of participation of the informant/victim cannot be denied and at any stage of case, the victim/informant possess the participatory right and in that context, it is seen that the informant earlier appeared before the Page No.# 11/12

learned Trial Court below with an affidavit stating that he has no objection if the accused/petitioner is granted with bail as he had to lodged the F.I.R. only under undue influence and also for some misunderstanding of facts. No doubt Court need to consider the affidavit filed by the informant with no objection to bail with due caution and it depends upon case to case, which in this instant case do not appear suspicious.

16. It is also seen that the case was endorsed to an officer below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police, though as per Section 12 of the said Act, provides for the police officer of the rank of Deputy Superintendent of Police or Assistant Commissioner of Police to investigate the case. However, at this stage, it is not before this Court as to whether if any changes were made for the investigating officer by the State Authorities.

17. Going by the above discussions, it is seen that the petitioner has made out a strong ground for grant of bail but for abundant caution it is felt just and proper to go through the Case Diary. However, the ends of justice do not justify curtailing the liberty of the petitioner in the instant given fact of the case. Hence, the petitioner is given the liberty to go on interim bail on furnishing a surety of Rs. 50,000/- (Rupees fifty thousand) only with a surety of like amount to the satisfaction of the learned Chief Judicial Magistrate, Dhekiajuli, the accused/petitioner, namely, Mahbubul Hoque, subject to the following conditions:

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(i) that the petitioner shall fully co-operate with the investigation of the case and shall appear before the Investigating Officer as and when required in connection with the investigation of the aforesaid P.S. Case; and

(ii) that the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

18. List the matter on 09.04.2025 for production of the Case Diary.

JUDGE

Comparing Assistant