Posts by Vikasnagwan

Gauhati High court recently has granted bail in a corruption case in the matter of Gautam Baruwa versus The state of assam 2021 wherein the accused was arrested an has prayed for granting him regular bail, in connection with CM’s Special Vigilance Cell Police Station Case No. 9/2017, under Sections 120(B)/406/409/468/471/420 IPC, read with Section 13 (2) of the Prevention of Corruption Act, 1988 which involves a cumulative amount of Rs. 121 crores.

The Hon’ble high court also quoted the decision of the apex court in Deepak S Mehta -Vs- CBI; wherein the bail has been granted under Section 439 CrPC, considering that where there is delay in trial, bail should not be denied. Paragraph-19 is quoted below:-
“As observed earlier, we are conscious of the fact that the present appellant along with others are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the facts though the investigating agency has completed the investigation and submitted the charge sheet including the additional charge sheet, the fact remains that the necessary charges have not been framed. Therefore, the presence of the appellant in custody may not be necessary for further investigation. In view of the same, considering the health condition as supported by the documents, including the certificate of the medical officer, we are of the view that the appellant is entitled to an order of bail, pending trial on stringent conditions, in order to safeguard the interest of CBI.

Bail in cases of non bailable offences is a discretion of the court as per the various decisions of the Hon’ble court the punishment starts after conviction.

Read full judgement below:
Gauhati High Court
Gautam Baruwa vs The State Of Assam on 8 February, 2021
                                                                                    Page No.# 1/6

GAHC010175182020




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

                                 Case No. : Bail Appln./2718/2020

             GAUTAM BARUWA
             S/O LT KSHIRODA KANTA BARUWA, R/O FLAT NO. F-4, CHANDRALAYA
             APARTMENT, LAMB ROAD,AMBARI, P.S. LATASIL GUWAHATI-781001,
             DIST. KAMRUP (M), ASSAM



             VERSUS

             THE STATE OF ASSAM
             REP. BY THE PP, ASSAM



Advocate for the Petitioner    : MR. A CHAUDHURY

Advocate for the Respondent : PP, ASSAM


                                              BEFORE
                     HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
                                      ORDER
08.02.2021 By this application under Section 439 CrPC, petitioner, namely, Sri Gautam Baruwa, who was arrested on 25.02.2020, has prayed for granting him regular bail, in connection with CM's Special Vigilance Cell Police Station Case No. 9/2017, under Sections 120(B)/406/409/468/471/420 IPC, read with Section 13 (2) of the Prevention of Corruption Act, 1988. 
2. Heard Mr A Choudhury, learned counsel for the petitioner. Also heard Mr N K Kalita, learned Additional Public Prosecutor for the State of Assam. 
Page No.# 2/6 
3. The LCR, along with the status report submitted by the learned Presiding Officer has been produced. 
4. Pursuant to an allegation received from the erstwhile Labour Commissioner, Tapan Chandra Sarma, to the effect that during the years 2013-2016, the then Labour Commissioner -cum- Member Secretary and the Chairman and other staff of Assam Building and Other Construction Workers Welfare Board (in short, "ABOCWWB"), Guwahati, illegally incurred huge expenditure in printing leaflets, folders and booklets for awareness campaign and also printing of forms and registers without receiving indent from the Field Officers, violating the prescribed limits, an enquiry was conducted by the Inspector of Police, CM's Vigilance Cell and on the basis of self conducted enquiry by Inspector, Mrinal Sarma, the FIR was lodged, alleging that the FIR named accused persons were involved in printing of various forms and other items for three successive years, in the name of publicity of campaign for labour awareness, which involves a cumulative amount of Rs. 121 crores, while disbursing the work to the particular firms, large scale collusion is alleged to have been indulged into, in the form of manipulation of floating tenders in inflated rates and thereby, causing wrongful loss to the State exchequer and wrongful gain to the accused persons. The aforesaid FIR was registered as SVC Case No. 9/2017, under Sections 120(B)/406/409/468/471/420 IPC, read with Section 13 (2) of the Prevention of Corruption Act, 1988, against- 1) Chohan Doley, IAS, the then Labour Commissioner 
-cum- Member Secretary, 2) Gautam Baruwa, the Chairman of ABOCWWB, 3) N N Choudhury, Administrative Officer of the Board, 4) Priyanshu Bairagi, Proprietor of Purbashree Printing House, Patacharkuchi, 5) Officials of Sarba Siksha Abhijan Mission, Assam. 
5. During investigation three accused persons, Chohan Doley, N N Choudhury and Priyangshu Bairagi were arrested and charge sheet was also laid against them, pending further investigation under Section 173 (A) of CrPC. Those three accused persons were subsequently released on bail. Present accused person, Gautam Baruwa, who is stated to have absconded at the initial stage, but, later on, he was also arrested on 24.02.2020 and, thereafter, were sent to judicial custody and charge sheet was also laid against him, after obtaining prosecution sanction under Section 197 of the CrPC. The learned trial Court in its status report has submitted that prosecution sanction as regards the other accused, Chohan Doley is not yet furnished under Section 19 of the PC Act and the proposal has been sent by the Secretary to the Government of India to the Prime Minister's office in this regard. Soon after obtaining the prosecution sanction order against Chohan Doley, the learned Court will consider the matter of taking cognizance of offences against the accused persons. 
Page No.# 3/6 
6. Thus, from the matters on record and the LCR, it reveals that the charge sheet has already been laid against all the accused persons at different stages and the case is pending for taking cognizance. 
7. The learned counsel for the petitioner has submitted before this Court that all remaining charge sheeted accused(s), except the present petitioner, have been granted bail by this Court as well as the trial Court and the bail prayer of the present accused petitioner should also be considered, in view of length of detention and as a matter of parity. Different bail order(s) of those accused persons have been pressed into as well as other bail order(s), passed by this Court in some other cases regarding the APSC case etc., where this Court granted the bail to co-accused(s) on the ground of parity and length of detention. 
8. Referred decisions annexed are gone through and also the LCR to assess the status of the case. 
9. In support of the contention raised by the learned counsel for the petitioner, the following decisions of the Hon'ble Apex Court have been submitted, wherein the Hon'ble Court has granted bail considering the length of detention in custody, without trial:- 
1) In (2000) 9 SCC 443; Vivek Kumar -Vs- State of UP, bail under Section 439 CrPC (in an offence under Sections 394/395 read with Section 149 IPC) was granted by holding that the accused person is in custody for a quiet long period without commencing the trial and there is no need to detain him in further custody. 
2) In (2002) 10 SCC 403; Sanjay @ Bablu -Vs- State of Gujarat, bail under Section 439 CrPC, (in an offence under Sections 120B/307/392/393 IPC) was granted, considering the length of detention under the custody, against the apprehension of prosecution that accused may abscond from the trial. 
3) In (2012) 4 SCC 134; Deepak S Mehta -Vs- CBI; bail has been granted under Section 439 CrPC, considering that where there is delay in trial, bail should not be denied. Paragraph-19 is quoted below:- 
"As observed earlier, we are conscious of the fact that the present appellant along with others are charged with economic offences of huge magnitude. At the same time, we cannot lose sight of the facts though the investigating agency has completed the investigation and submitted the charge sheet including the additional charge sheet, the fact remains that the necessary charges have not been framed. Therefore, the presence of the appellant in custody may not be necessary for further Page No.# 4/6 investigation. In view of the same, considering the health condition as supported by the documents, including the certificate of the medical officer, we are of the view that the appellant is entitled to an order of bail, pending trial on stringent conditions, in order to safeguard the interest of CBI." 
4) In 2012 (3) Supreme 270; Shiv Mohan Kapoor -Vs State of UP, bail has been granted under Section 439 CrPC, where the co-accused has already been granted bail. 
5) In 2018 (0) Supreme (SC) 1267; Omprakash @ Manta -Vs- State of MP, the Court granted bail after conviction on parity, where the sentence of other co-accused persons had been suspended. 
6) In (2018) 14 SCC 493; Sharad T Kabra -Vs- Union of India (in an offence under Section 120 (B)/420/467/468/471 IPC and Prevention of Money Laundering Act), bail was granted under Section 439 CrPC, holding that though the charge sheet has been submitted but the trial has not commenced and even the charges have not been framed against the accused and such release on bail should be on requisite conditions, as may be considered appropriate. 
10. This Court in (2018) 0 Supreme (Gau) 1044, Utpal Bhuyan -Vs- State of Assam, (in an offence under Sections 120 (B)/201/420/463/468/471 IPC, read with Section 13 (1) (a) (b), 13 (1) (d), 13 (2) of the PC Act) granted bail under Section 439 CrPC, in cases relating to APSC scam on the ground of parity, as the co-accused on the same footing has already been enlarged on bail by this Court. 
11. Placing reliance upon the above decisions and referring to the matters in hand, it has been urged by the learned counsel for the petitioner that the accused person is a 60-years-old man and is suffering from various ailments and undergoing treatment since 2016 onwards till date in various hospitals (vide Annexure- Q series) for the ailments, like inflammatory lump over right sole and calonic polyp syndrome and operated on 27.11.2017, at Indraprastha Apollo Hospital at New Delhi, further treatment at Fortis Memorial, Gurgaon, for pancreatis, multiple chronic polyps on 01.06.2016, at International Hospital, Guwahati, treated for acute pancreatic, Type-II Diabetes Mellitus, Systemic Hypertension, Grade-II BEP, Hyperuricaemia (as on 06.05.2016) and also other numerous documents annexed, that he was treated at other hospitals also for his various ailments. 
12. Further, bail has been sought for on the ground of parity as while remaining all other co- accused(s) have already been enlarged on bail and trial has not yet begun. The accused has already given an undertaking before this Court to cooperate with the trial and there is no apprehension of Page No.# 5/6 hampering the investigation and tampering the witnesses, as the investigation has already been completed and charge sheet has also been laid. 
13. Learned Additional Public Prosecutor, Mr N K Kalita, has, however, raised objection against the bail prayer pointing towards earlier conduct of accused as he absconded immediately after filing of the FIR and one cannot claim bail only on the ground of parity and otherwise, nature and gravity of the offence cannot be denied. It is submitted that the trial of the case will be started soon after the prosecution sanction, obtained against one of the accused, Chohan Doley. 
14. Due consideration has been given to the rival submissions of both the parties and also gone through the matters on record and the decisions referred above. The LCR as well as the status report is perused, which indicates that the charge sheet has already been submitted, but cognizance has not yet been taken for want of prosecution sanction in respect of one of the accused, which has to be granted by the Central Government, and the same is awaited. As many as four accused persons have been charge sheeted, including the present petitioner and all of the accused are similarly situated. Apart from accused No. 4, Priyanghu Bairagi, proprietor of M/s Purbashree Printing House, all other accused are the officials of ABOCWWB. The other accused person, Chohan Doley was granted bail after 6 months of his custody (with stringent conditions), considering his length of detention as well as the fact that investigation has already been completed and cognizance could not be taken for want of prosecution sanction and as the entire matter is based on documentary evidence, which has already been seized and release of accused will not hamper the case. The accused Priyangshu Bairagi was granted the default bail as the charge sheet was filed much after the statutory period. Accused N. N. Choudhury was granted bail by the learned trial Court on the similar observation that cognizance could not be taken for want of prosecution sanction, despite long detention of the accused. 
15. The present accused person is also similarly situated with other co-accused. Rather he is in long detention, in comparison to other accused persons. Although the present accused was arrested much later than the other accused, but it reveals that he will complete one year detention in the last part of this month and yet there is no immediate prospect of commencement of the trial, in view of the status report received from the trial Court. All other co-accused persons are on bail, particularly on the ground of length of detention, even after filing of the charge sheet, no cognizance, no charge. 
16. Even though the offence relates to economic offence, having magnitude, but a litigant has the right to speedy trial under the Constitution. The accused herein being aged 60+ years, with multiple ailments, should not be denied the privilege of bail, in the light of observation/decision rendered by the Page No.# 6/6 Hon'ble Apex Court, despite the magnitude of such economic offence, apart from the ground of parity. He should be allowed to face the trial regularly. On the other hand, the cognizance of offence has not yet been taken and the trial is far away. 
17. Considering all entirety, this Court is of the opinion that accused Gautam Baruwa should be enlarged on bail, with strict conditions. 
18 Resultantly the accused person named above is hereby allowed to go on bail of Rs.50,000/- (Rupees fifty thousands) only with two solvent sureties of like amount, with the following directions: 
i) Not to leave the jurisdiction of the learned trial Court, without permission; 
ii) He will deposit his passport to the learned trial Court, at the time of furnishing the bail bond; 
iii) He will attend the trial regularly, without hampering the trial. 
19. With the above observations and directions, the bail petition stands disposed of. 

       

The word arrest has neither been defined in the code of criminal procedure (Crpc) nor in the I or any other law which deals with criminal offences in India. Section 41 crPC onward provides for the powers of arrest as to who can arrest and whom can be arrested.

It only indicates as to what would constitute arrest is found in section 46 CrPC. In order to arrest a person, the police officer has to touch or confine the body of the person to be arrested unless there is submission to the custody by words or action.

The question as to whether the police is bound to arrest a person has been answered by the the punjab and haraya High court that a police officer is not always bound to arrest an accused even if the allegation against him is having committed cognizable offence.

In gist Arrest means a person in custody and the police is entitled to restrain him. But keep in mind that the custody and arrest are two different terms it means that in every arrest there is custody but not vice versa.

After arrest there are provisions of bail which we shall discuss in upcoming days.