Tripura High Court
The Central Bureau Of Investigation vs Gautam Kundu @ Goutam on 22 July, 2024
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
BA 41 of 2024
The Central Bureau of Investigation
Through the Supdt. of Police/Head of Branch, Central Bureau of
Investigation, Anti-Corruption Branch, Shillong, Meghalaya.
...... Applicant(s)
Versus
Gautam Kundu @ Goutam
S/o- Lt. Nirmal Kundu, Chairman & Director of Rose Valley Group of
Companies, R/o- Flat No.1803, Upahar Luxury Complex, Ambuja Tower
04, Behind Peerless Hospital, Garia, Kolkata and 71, Jessore Road (South),
Distt.-24 Paraganas, 3rd Floor, Ashabari Apartment, Barasat, Kolkata.
Presently he is in Judicial Custody in Presidency Correctional Home,
Alipore, Kolkata (Notice may be served through concerned Jail
Superintendent).
....Accused-Respondent(s)
For the Applicant(s) : Mr. B. Majumder, Dy. SGI
For the Respondent(s) : None
HON'BLE MR. JUSTICE ARINDAM LODH
Order
22/07/2024
Heard Mr. B. Majumder, learned Dy. SGI appearing for the CBI, the
applicant herein.
This is an application for cancellation of bail of the accused-
respondent granted by learned Special Judge(CBI), West Tripura District,
Agartala.
Learned Special Judge(CBI) has released the accused person on bail
vide order dated 22.04.2024 imposing following conditions:-
"The accused person namely, Gautam Kundu is allowed to go
on bail on his furnishing a bail bond of Rs.50,000/- with one surety
of like amount, in default to JC till 04.05.2024, with the following
conditions.
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i) In case of any change of address, the accused person shall
inform the same to the Court and the Investigating Officer.
ii) The accused person shall not leave India without the prior
permission of the Court.
iii) The accused person is directed to give all his mobile numbers
to the Investigating Officer and keep them operational at all times.
iv) The accused person shall not, directly or indirectly, tamper
with the evidences of this case in any manner or try to influence the
witness in any manner.
v) In case, it is established that the accused person has tried to
tamper with the evidence, the bail granted to the accused person
shall stand cancelled forthwith.
vi) The accused person shall remain present before the Court on
each and every dates to be fixed by the Court."
While consideration of granting bail, learned Special Judge(CBI) had
taken into account two decisions of the Supreme Court, Satender Kumar
Antil Vs. CBI, reported in (2022) 10 SCC 51 and Sanjay Chandra Vs. CBI,
reported in (2012) 1 SCC 40 which reads as under:-
"In the case of Satender Kumar Antil Vs CBI, reported in (2022) 10
SCC 51, the Hon'ble Supreme Court held as under:
"Economic offences (Category D) 90. What is left for us now
to discuss are the economic offences. The question for consideration
is whether it should be treated as a class of its own or otherwise. This
issue has already been dealt with by this Court in P. Chidambaram v
Directorate of Enforcement [P. Chidambaram v Directorate of
Enforcement, (2020) 13 SCC 791: (2020) 4 SCC (Cri) 646], after
taking note of the earlier decisions governing the field. The gravity of
the offence, the object of the Special Act, and the attending
circumstances are a few of the factors to be taken note of along with
the period of sentence. After all, an economic offence cannot be
classified as such, as it may involve various activities and may differ
from one case to another. Therefore, it is not advisable on the part of
the court to categorise all the offences into one group and deny bail
on that basis. Suffice it to state that law, as laid down in the following
judgments, will govern the field: Precedents 91.P Chidambaram v.
Directorate of Enforcement (P. Chidambaram v Directorate of
Enforcement, (2020) 13 SCC 791: (2020) 4 SCC (Cri) 646): (SCC
pp. 804-805, para 23) "23. Thus, from cumulative perusal of the
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judgments cited on either side including the one rendered by the
Constitution Bench Gurbaksh Singh Sibhia v State of Punjab, (1980)
2 SOC 565: 1980 SCC (Cri) 465) of this Court, it could be deduced
that the basic jurisprudence relating to bail remains the same
inasmuch as the grant of bail is the rule and refusal is the exception
so as to ensure that the accused has the opportunity of securing fair
trial. However, while considering the same the gravity of the offence
is an aspect which is required to be kept in view by the Court. The
gravity for the said purpose will have to be gathered from the facts
and circumstances arising in each case. Keeping in view the
consequences that would befall on the society in cases of financial
irregularities, it has been held that even economic offences would fall
under the category of "grave offence" and in such circumstance while
considering the application for bail in such matters, the court will
have to deal with the same, being sensitive to the nature of allegation
made against the accused. One of the circumstances to consider the
gravity of the offence is also the term of sentence that is prescribed
for the offence the accused is alleged to have committed. Such
consideration with regard to the gravity of offence is a factor which
is in addition to the triple test or the tripod test that would be
normally applied. In that regard what is also to be kept in
perspective is that even if the allegation is one of grave economic
offence, it is not a rule that bail should be denied in every case since
there is no such bar created in the relevant enactment passed by the
legislature nor does the bail jurisprudence provide so. Therefore, the
underlining conclusion is that irrespective of the nature and gravity
of charge, the precedent of another case alone will not be the basis
for either grant or refusal of bail though it may have a bearing on
principle. But ultimately the consideration will have to be on case-to-
case basis on the facts involved therein and securing the presence of
the accused to stand trial." 92. Sanjay Chandra v. CBI Sanjay
Chandra v. CB1. (2012) 1 SCC 40: (2012) 1 SCC (Cri) 26: (2012) 2
SCC (L&S) 397]: (SCC pp. 62- 64,. paras 39-40 & 46) "39. Coming
back to the facts of the present case, both the courts have refused the
request for grant of hail on two grounds: the primary ground is that
the offence alleged against the accused persons is very serious
involving deep-rooted planning in which, huge financial loss is
caused to the State exchequer; the secondary ground is that of the
possibility of the accused persons tampering with the witnesses. In
the present case the charge is that of cheating and dishonestly
inducing delivery of property and forgery for the purpose of cheating
using as genuine a forged document. The punishment for the offence
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is imprisonment for term which may extend to seven years. It is, no
doubt, true that the nature of the charge may be relevant, but at the
same time, the punishment to which the party may be liable, if
convicted, also bears upon the issue. Therefore, in determining
whether to grant bail, both the seriousness of the charge and the
severity of the punishment should be taken into consideration. 40.
The grant or refusal to grant bail lies within the discretion of the
court. The grant or denial is regulated, to a large extent, by the facts
and circumstances of each particular case. But at the same time,
right to bail is not to be denied merely because of the sentiments of
the community against the accused. The primary purposes of bail in a
criminal case are to relieve the accused of imprisonment, to relieve
the State of the burden of keeping him, pending the trial, and at the
same time, to keep the accused constructively in the custody of the
court, whether before or after conviction, to assure that he will
submit to the jurisdiction of the court and be in attendance thereon
whenever his presence is required.
***
46. We are conscious of the fact that the accused are charged
with economic offences of huge magnitude. We are also conscious of
the fact that the offences alleged, if proved, may jeopardise the
economy of the country. At the same time, we cannot lose sight of the
fact that the investigating agency has already completed
investigation and the charge sheet is already filed before the Special
Julge, CBI, New Delhi. Therefore, their presence in the custody may
not be necessary for further investigation. We are of the view that the
appellants are entitled to the grant of bail pending trial on stringent
conditions in order to ally the apprehension expressed by CBI.
Role of the court.
93. The rate of conviction in criminal cases in India is
abysmally low. It appears to us that this factor weighs on the mind of
the Court while deciding the bail applications in a negative sense.
Courts tend to think that the possibility of a conviction being nearer
to rarity, bail applications will have to be decided strictly, contrary
to legal principles. We cannot mix up consideration of a bail
application, which is not punitive in nature with that of a possible
adjudication by way of trial. On the contrary, an ultimate acquittal
with continued custody would be a case of grave injustice. 94.
Criminal courts in general with the trial court in particular are the
guardian angels of liberty. Liberty, as embedded in the Code, has to
be preserved, protected, and enforced by the criminal courts. Any
conscious failure by the criminal courts would constitute an affront
to liberty. It is the pious duty of the criminal court to zealously guard
and keep a consistent vision in safeguarding the constitutional values
and ethos. A criminal court must uphold the constitutional thrust with
responsibility mandated on them by acting akin to a high priest."
(emphasis supplied)"
In the case of Sanjay Chandra Vs CBI, reported in (2012) 1
SCC 40, the Hon'ble Supreme Court held as under:
"21. In bail applications, generally, it has been laid down
from the earliest times that the object of bail is to secure the
appearance of the accused person at his trial by reasonable amount
of bail. The object of bail is neither punitive nor preventative.
Deprivation of liberty must be considered a punishment, unless it is
required to ensure that an accused person will stand his trial when
called upon. The courts owe more than verbal respect to the
principle that punishment begins after conviction, and that every
man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention
in custody pending completion of trial could be a cause of great
hardship From time to time, necessity demands that some
unconvicted persons should be held in custody pending trial to secure
their attendance at the trial but in such cases, "necessity" is the
operative test. In this country, it would be quite contrary to the
concept of personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter, upon which, he
has not been convicted or that in any circumstances, he should be
deprived of his liberty upon only the belief that he will tamper with
the witnesses if left at liberty, save in the most extraordinary
circumstances.
23. Apart from the question of prevention being the object of
refusal of bail, one must not lose sight of the fact that any
imprisonment before conviction has a substantial punitive content
and it would be improper for any court to refuse bail as a mark of
disapproval of former conduct whether the accused has been
convicted for it or not or to refuse bail to an unconvicted person for
the purpose of giving him a taste of imprisonment as a lesson.
(emphasis supplied)"
Thereafter, the learned Special Judge(CBI) had observed:-
"The present case is based on documentary evidences and the
documents relevant to the case have been recovered by the CBI.
The investigation in the present case has already been
completed and the charge sheet has already been filed by the CBI.
There is nothing present before this Court that the accused
has not co-operated the CBI during investigation. There is also no
prayer for any custodial trial of the accused person. In the given
scenario, considering the principles enunciated in the aforesaid
reported judgments on the subject, I am of the considered opinion to
allow the bail prayer of the accused person imposing strict
conditions. "
I have meticulously perused the order passed by learned Special
Judge (CBI), West Tripura District, Agartala. Challenging the said order,
CBI has filed the present application for cancellation of bail of the accused
person and to set aside the impugned order dated 22.04.2024.
Mr. Majumder, learned Dy. SGI appearing for the CBI has submitted
that there is serious apprehension that if the accused is released on bail, he
may flee away and also may tamper the evidences already gathered by the
Investigating Officer. Learned Dy. SGI has further submitted that respondent
herein is the main accused of the case and if he is released on bail, then he
may attempt to maneuver the witnesses.
I have considered the submission of Mr. Majumder, learned Dy. SGI
appearing for CBI.
According to this Court, these are not the grounds at all to cancel the
bail granted by the Court. The learned Special Judge(CBI) has already taken
note of the seriousness of the offence allegedly committed by the accused.
Learned Special Judge(CBI) in her order has taken all precautionary
measures and necessary conditions have already been imposed to ensure the
presence of the accused person during the course of trial. The case was
originally registered long back, probably in the year 2011-12. After few
days, the accused was arrested and since then the accused person has been in
custody. All the properties and bank accounts of his company have already
been attached by the Government. The case is ready for conducting trial. So,
further delay to conduct trial may prejudice the accused person.
Furthermore, the accused person has been arrested in connection with
other cases also and at present he is in judicial custody at Presidency Central
Correctional Home, Allopore, Kolkata, West Bengal.
However, the accused person shall surrender his passport to the
investigating officer, if not surrendered by this time.
With the aforesaid reasons, I am not inclined to interfere with the
order dated 22.04.2024 passed by Ld. Special Judge(CBI) releasing the
accused-respondent on bail.
Accordingly, the instant application for cancellation of bail granted to
the accused-respondent setting aside the order dated 22.04.2024 stands
rejected being devoid of merit.
JUDGE
Rohit
SANJAY byGHOSH
GHOSH Date: 2024.07.24
14:12:19 +05'30'
