Tripura High Court
Mr. A.R Barman vs Mr. R. Datta on 10 September, 2021
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HIGH COURT OF TRIPURA
AGARTALA
A.B. No. 65 of 2021
For Petitioner(s) : Mr. A.R Barman, Advocate.
For Respondent(s) : Mr. R. Datta, Public Prosecutor.
B_E_F_O_R_E_
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
ORDER
10/09/2021
This bail application has been filed under section 438,
Cr.P.C seeking pre arrest bail to the petitioner in connection with
Chawmanu P.S. case No. 2021CMN019 registered under sections 468,
471 & 420 IPC.
[2] Heard Mr. A.R. Barman, counsel appearing for the
petitioner. Also heard Mr. R. Datta, learned P.P appearing for the State
respondent.
[3] It is submitted by Mr. A.R. Barman, learned counsel of the
petitioner that the accused has been charged with the offence of
forging a bank guarantee for which an FIR was filed against him by
Jayanta Debbarma, Superintendent of Excise, Dhalai District on
26.08.2021. Apprehending arrest, the accused has approached this
court seeking pre arrest bail. Counsel submits that on 10.04.2021 his
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licensed foreign liquor shop at Chawmanu market was looted by some
persons belonging to a different political party and all the belongings of
his said shop were damaged. He immediately lodged FIR with the
Officer in Charge of Chawmanu police station which was registered as
Chawmanu PS case No. 2021CMN0020 under sections 448, 427 & 380
read with section 34 IPC and investigation of the case was taken up.
Subsequently, he applied to the competent authority seeking
permission to surrender the licence of his foreign liquor shop under
serious threat. His security deposit was immediately fortified by the
licensing authority without affording any opportunity of hearing him.
Aggrieved petitioner then filed a writ petition in this court which is
pending. Counsel submits that out of enmity the present FIR was filed
against the petitioner on the allegation that he submitted a fake bank
guarantee of a sum of Rs.20,22,400/- to the licensing authority for
procuring the licence for his foreign liquor shop. According to Mr. A.R.
Barman, learned counsel of the petitioner the said bank guarantee
copy of which is annexed by the petitioner would show that it was
written under the letter head of Tripura State Cooperative Bank and it
was duly sealed and signed by the competent authority of the bank.
According to learned counsel it was impossible for the petitioner to
forge such document. Counsel submits that he has been implicated
maliciously in a false case for which he needs to be protected from
arrest and detention by granting relief to him under section 438,
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Cr.P.C. Counsel, further submits that court may decide the matter
after perusing the case diary and meanwhile he may be given interim
protection by preventing the investigating agency from arresting him
till disposal of bail application.
[4] Mr. R. Datta, learned P.P on the other hand vehemently
opposes the bail application of the accused. It is submitted by Mr.
Datta, learned P.P that the allegation against the accused are serious
and in such case court should be extremely cautious in granting
interim protection under section 438, Cr.P.C to the accused. In support
of his contention Mr. R. Datta, learned P.P has relied on the decision of
the Apex Court in P. Chidambaram Vs. Directorate of
Enforcement reported in (2019) 9 SCC 24 wherein the Apex Court
in paragraph 69 of the judgment has held that power under section
438, Cr.P.C is an extraordinary power and the same has to be
exercised sparingly. Observation of the Apex Court in this regard is as
under:
"69. Ordinarily, arrest is a part of procedure of
the investigation to secure not only the presence
of the accused but several other purposes. Power
under Section 438 CrPC is an extraordinary power
and the same has to be exercised sparingly. The
privilege of the pre-arrest bail should be granted
only in exceptional cases. The judicial discretion
conferred upon the court has to be properly
exercised after application of mind as to the
nature and gravity of the accusation; possibility
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of applicant fleeing justice and other factors to
decide whether it is a fit case for grant of
anticipatory bail. Grant of anticipatory bail to
some extent interferes in the sphere of
investigation of an offence and hence, the court
must be circumspect while exercising such power
for grant of anticipatory bail. Anticipatory bail is
not to be granted as a matter of rule and it has to
be granted only when the court is convinced that
exceptional circumstances exist to resort to that
extraordinary remedy."
[5] Mr. R. Datta, learned P.P. submits that release of the
accused on interim bail at this stage is likely to spoil the investigation
of the case. Learned P.P, therefore, urges for rejecting the bail
application.
[6] Considered the submissions of learned counsel appearing
for the parties. Perused the record available before this court.
[7] It would emerge from the FIR of the Superintendent of
Excise, Dhalai District that the bank guarantee allegedly forged by the
petitioner was sent to the Branch Manager of Tripura State
Cooperative Bank and said Branch Manager vide his communication
dated 06.08.2021 confirmed that the said bank guarantee was fake.
[8] In these circumstances, this court is of the view that
perusal of the case diary is necessary for consideration of the petition.
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Learned P.P will produce the case diary on the next date
and the matter will be considered on receipt of the case diary on
15.09.2021.
List the matter on 15.09.2021.
JUDGE
Rudradeep
