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2014 DIGILAW 1088 (CAL)

In the matter of : Akshay Jain v. .

2014-11-20

INDRAJIT CHATTERJEE, JOYMALYA BAGCHI

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JUDGMENT : 1. Heard the learned Counsel appearing on behalf of the parties. Perused the Case papers. 2. It is submitted on behalf of the petitioner that the instant case is the product of a struggle between two groups over control of a company in respect whereof litigation's are pending before the Company Law Board. 3. Mr. Bhattacharyya, learned senior counsel appearing for the petitioner submitted that the gist of the allegation in the first information report is that the documents and/or pleadings filed before the Company Law Board on behalf of the petitioner were forged and fabricated. He further submitted that the forged documents have already been seized and are in the possession of the Investigating Agency. 4. Mr. Moitra, learned senior counsel appearing for the defacto complainant submitted that the instant case portrays a brazen effort on the part of the petitioner to subvert the process of law and procure orders from the Company Law Board on the basis of forged and fabricated documents. The author of the said documents who is a co-accused has disowned them and has a written letter to such an effect to the Investigating Agency. He submitted that the gravity of the offence ought to persuade the Court to reject the prayer for anticipatory bail. 5. Mr. Biswas appearing for the State submitted that the investigating agency has received letter from one Swarnendu Maity, a co-accused, stating that he had signed the blank documents and papers due to coercion which were forged and fabricated and filed before the Company Law Board. He further submitted that proclamation and attachment has been issued against the petitioners on 24th September, 2014 and as such the application of anticipatory bail is not maintainable. 6. In rebuttal, Mr. Bhattacharyya submitted that the prayer for issuance of proclamation and attachment against his client was mala-fide and was made to frustrate this application for anticipatory bail which was filed before this Court on 11th September, 2014 prior to such prayer for proclamation. 7. We have considered the rival submissions of the parties. We find that the dispute arose over rival claims for control of the company which is presently the subject matter of litigation before the Company Law Board. The allegation in the first information report is that documents filed in the said proceeding before the company law Board on behalf of the petitioner were forged and fabricated. We find that the dispute arose over rival claims for control of the company which is presently the subject matter of litigation before the Company Law Board. The allegation in the first information report is that documents filed in the said proceeding before the company law Board on behalf of the petitioner were forged and fabricated. Admittedly the forged documents are already in the custody and control of the Investigating Agency. It is claimed that the author of such documents who is also a co-accused has disowned them and written a letter to the Investigating Agency that he signed such documents without knowing the contents thereof upon influence of the petitioner. 8. The genuineness or otherwise of the alleged forged documents appear to be the subject matter of the enquiry before the Company Law Board. It also appears that the author of those documents did not contemporaneously raise any objection in the matter of execution of such documents under pressure from the petitioner. It is a matter of investigation whether such claim of the maker of such allegedly forged documents is genuine or not. However, in the light of the fact that the alleged forged documents are in the domain and control of the Investigating Agency, we are of the opinion that custodial interrogation of the petitioner may not be necessary. 9. We also note with displeasure that the Investigating Agency appears to have overreached itself in obtaining proclamation and attachment against the petitioner at a time when this Court was in seisin of the application for anticipatory bail. Although the pendency of an application for anticipatory bail may not operate as a bar to arrest the accused, the latter cannot be said to be absconding from the process of law during the pendency of such application so as to justify issuance of an order of proclamation and attachment against him. When a petitioner has approached the Court for seeking anticipatory bail and the matter is pending for consideration, it could not have been said by any stretch of imagination that such accused is absconding and evading the process of law. Reference maybe made to Qamardin v. Emperor, reported in AIR 1922 Lahore 475. When a petitioner has approached the Court for seeking anticipatory bail and the matter is pending for consideration, it could not have been said by any stretch of imagination that such accused is absconding and evading the process of law. Reference maybe made to Qamardin v. Emperor, reported in AIR 1922 Lahore 475. Hence, the proclamation and attachment procured against the petitioners during the pendency of this application is patently without jurisdiction and cannot eclipse the exercise of discretionary power of this Court under Section 438 of the Code of Criminal Procedure. 10. For the reasons aforesaid, we are inclined in granting anticipatory bail to the petitioner. 11. Accordingly, we direct that in the event of arrest the petitioner shall be released on bail upon furnishing a bond of Rs. 10,000/- with one surety of like amount to the satisfaction of the arresting officer and also subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure, 1973. 12. The petitioner shall meet the Investigating Officer of the case once a week until further orders. 13. This application for anticipatory bail is, thus, disposed of.