Facts of the Case

The petitioner, Avishek Dey, apprehending arrest in connection with Bhangagarh P.S. Case No. 241/2022 registered under Sections 120B, 381, 409 and 408 of the Indian Penal Code, approached the Gauhati High Court seeking pre-arrest bail by filing an application under Section 438 of the Code of Criminal Procedure.

The case arose from allegations concerning missing stock belonging to the informant’s establishment. Upon perusal of the FIR, the High Court noted that stocks worth Rs. 58,23,890, including GST, were alleged to be missing from the office of the informant. The FIR expressed suspicion that the petitioner might be involved in the alleged offence along with other staff members.

The petitioner contended that he had already resigned from the office of the informant before the FIR was lodged. According to the petitioner, an email dated 18 June 2022 showed that he had resigned with effect from 20 June 2022, whereas the FIR was subsequently lodged on 20 August 2022.

The learned Additional Public Prosecutor produced the case diary before the Court and opposed the prayer for anticipatory bail.

Issues Involved

The principal issues before the Gauhati High Court were:

  1. Whether the petitioner was entitled to the protection of pre-arrest bail under Section 438 CrPC in a case involving allegations under Sections 120B, 381, 408 and 409 IPC.
  2. Whether the petitioner’s contention that he had resigned from the informant’s office before registration of the FIR was sufficient, at the stage of investigation, to justify grant of anticipatory bail.
  3. Whether the investigative material contained in the case diary indicated possible involvement of the petitioner in the alleged misappropriation of goods belonging to his erstwhile employer.
  4. Whether the requirement of enabling the Investigating Officer to unearth the truth outweighed the petitioner’s request for protection from arrest.
  5. Whether the grant of bail to one of the alleged principal accused persons constituted a sufficient ground for extending pre-arrest bail protection to the petitioner.

Petitioner’s Arguments

The learned counsel appearing for the petitioner submitted that the petitioner was in no way connected with the alleged offence.

The petitioner relied upon documents appended to an additional affidavit and specifically referred to an email dated 18 June 2022. On the strength of the said email, it was argued that the petitioner had resigned from the office of the informant with effect from 20 June 2022.

It was further argued that despite the petitioner having resigned from the establishment, he was falsely implicated in the alleged offence through the FIR dated 20 August 2022.

The petitioner also relied upon the circumstance that one of the alleged principal accused persons had already been released on bail by an order dated 23 September 2022 passed by the Gauhati High Court in B.A. No. 2452/2022.

Accordingly, the petitioner sought protection from arrest under Section 438 CrPC.

Respondent’s Arguments

The learned Additional Public Prosecutor appearing for the State produced the case diary before the High Court and opposed the petitioner’s prayer for anticipatory bail.

The State’s opposition was considered in light of the material emerging from the investigation conducted up to that stage.

The Court recorded that the case diary indicated that, based on the investigation carried out so far, the Investigating Officer was of the opinion that the petitioner might be involved in the misappropriation of goods belonging to his erstwhile employer.

Therefore, the State opposed the grant of pre-arrest bail.

Court Order / Findings

The Gauhati High Court examined the FIR as well as the case diary produced by the learned Additional Public Prosecutor.

The Court noted that the FIR contained allegations regarding missing stocks worth Rs. 58,23,890, including GST, from the office of the informant. It was further noted that the FIR expressed suspicion that the petitioner might be involved in the alleged offence along with other staff members.

Upon examining the case diary, the Court observed that the investigation carried out up to that stage had led the Investigating Officer to form an opinion that the petitioner might be involved in the misappropriation of goods of his erstwhile employer.

The High Court held that, in order to enable the Investigating Officer to unearth the truth, the matter was not a fit case for granting the privilege of pre-arrest bail to the petitioner.

Accordingly, the Court refused the petitioner’s prayer for pre-arrest bail in connection with Bhangagarh P.S. Case No. 241/2022 at that stage.

The anticipatory bail application was disposed of, and the case diary was directed to be returned.

Important Clarification

The order is significant because the Gauhati High Court’s refusal of anticipatory bail was based on the circumstances existing at the investigation stage and the material reflected in the case diary.

The Court did not treat the petitioner’s alleged resignation before the date of the FIR as, by itself, sufficient to justify pre-arrest protection. Although the petitioner relied on an email dated 18 June 2022 stating that he had resigned with effect from 20 June 2022 and argued that the FIR dated 20 August 2022 falsely implicated him, the Court considered the investigative material indicating possible involvement in the alleged misappropriation.

The Court also noted the petitioner’s submission that one of the alleged principal accused persons had been released on bail in B.A. No. 2452/2022 by order dated 23 September 2022. However, this circumstance did not result in the grant of anticipatory bail to the petitioner.

A further important aspect is the Court’s use of the expression “at this stage” while refusing pre-arrest bail. The order must therefore be understood in the precise context of the investigation and case diary material available before the Court at that point in time.

The decision demonstrates that, while considering an application under Section 438 CrPC, the Court may attach substantial importance to the status of the ongoing investigation, the material reflected in the case diary, the nature and value of the alleged misappropriation, and the necessity of allowing the Investigating Officer to unearth the truth.

Sections Involved

Section 438 of the Code of Criminal Procedure, 1973

Relates to the direction for grant of bail to a person apprehending arrest, commonly referred to as anticipatory bail or pre-arrest bail.

Section 120B of the Indian Penal Code, 1860

Relates to punishment for criminal conspiracy.

Section 381 of the Indian Penal Code, 1860

Relates to theft by a clerk or servant of property in the possession of the master or employer.

Section 408 of the Indian Penal Code, 1860

Relates to criminal breach of trust by a clerk or servant.

Section 409 of the Indian Penal Code, 1860

Relates to criminal breach of trust by a public servant, banker, merchant, factor, broker, attorney or agent.

Link to download the order -https://mytaxexpert.co.in/uploads/1783402920_1287compressed.pdf

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