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2019 DIGILAW 584 (GAU)

Basant Kumar Agarwal v. State of Assam

2019-05-10

AJIT BORTHAKUR

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JUDGMENT : Ajit Borthakur, J. 1. Heard Mr. R. Dubey, learned counsel for the petitioner. Also heard Mr. H. Sarma, learned Additional Public Prosecutor, Assam. 2. By this petition filed under Section 438 of the Cr.P.C., the accused-petitioner, namely Sri Basanta Kumar Agarwal has prayed for grant of transit anticipatory bail, apprehending his arrest in connection with Lakhisarai P.S. Case No. 255/2016 registered under Sections 420/406 of the IPC. 3. Mr. Dubey, learned counsel for the petitioner, submits that the petitioner is one of the partners of a partnership firm in the name and style of "Laxmi Narayan Sales Corporation" having its office at Adams Plaza Building, Christranbasti, GR. Road, Guwahati, Assam dealing in sale and supply of MS Angel Iron, Steel, MS Page No. # 2/3 Flates and square and had business dealings with the informant firm M/s. Balajee Ingot Pvt. Ltd. and the latter claimed payment of outstanding dues to the tune of Rs. 12,20,064/- from the petitioner's firm, which the petitioner's firm disputed. According to Mr. Dubey, the dispute is out and out civil in nature, but aforenoted FIR is filed alleging criminal breach of trust and cheating against the petitioner. Mr. Dubey further submits that the petitioner sought for quashing of the FIR in WP(c) No. 7911 of 2016, wherein this court by judgment and order, dated 19.06.2018 quashed the FIR, but on appeal preferred by the informant, the Apex Court, by order, dated 15.04.2019, passed in Criminal Appeal No. 677/2019 partly allowed the appeal setting aside the aforesaid judgment and order of this court which quashed the whole FIR and upheld the issue of jurisdiction of this court over the allegation of offence under Section 406 of the IPC only, but set aside the impugned judgment quashing the FIR, in regard to the offence under Section 420 of the IPC. Mr. Dubey, learned counsel for the petitioner, therefore, contends that interim protection, as prayed for, may be granted until the petitioner can prepare to invoke the jurisdiction of the jurisdictional court. 4. Mr. H. Sharma, learned Addl. Public Prosecutor, Assam submits that the power under Section 438 CrPC. cannot be exercised by the court, having no territorial jurisdiction other than for the limited jurisdiction for the transitional period in exceptional facts and circumstances urgently required by way of interim protection to obtain bail from the regular court although not as a right routine in nature. Public Prosecutor, Assam submits that the power under Section 438 CrPC. cannot be exercised by the court, having no territorial jurisdiction other than for the limited jurisdiction for the transitional period in exceptional facts and circumstances urgently required by way of interim protection to obtain bail from the regular court although not as a right routine in nature. 5. The case of the petitioner as set up in the petition is contended by the learned counsel for the petitioner hereinabove. 6. Section 438 of the Cr.PC., provides that an anticipatory bail can be granted by the High Court or by the court of Sessions only in cases involving non-bailable offences, on the same considerations on which bail is granted under Section 437 of the Cr.PC. to a person accused of a non-bailable offence. It is well settled that exercise of the jurisdiction of anticipatory bail by any courts namely, the High Court or Sessions Court, beyond the local limits the jurisdiction in which the offence has been committed is limited to the extent of consideration of bail for a transitional period only, so as to enable the petitioner to submit to the jurisdictional court. 7. Sections 177 and 178 of the Cr.P.C. speak about the ordinary place of inquiry or trial. Section 438 Cr.PC. provides power to the High Court or Court of Sessions having jurisdiction over the locale of the commission of the offence of which the person is accused. However, Sections 79, 80 and 81 of the CrPC provide procedure for protection of the accused in the event he is arrested on execution of warrant outside the local jurisdiction of the court which issued it. Thus, by necessary implication of the aforesaid provision of the Cr.PC, with a view to give protection to the accused during the interim period contemplated therein, irrespective of jurisdiction over the place of inquiry or trial, the grant of transitory anticipatory bail by the court, within whose jurisdiction, the accused has a reasonable apprehension of arrest, is permissible, subject to consideration of the factors cited in Section 438 (1)(i), (ii), (iii), (iv). 8. Now, so far the petitioner's contentions are concerned, the case registered at Lakhisarai Police Station prima facie appears to have arisen out of the business transactions between the petitioner's firm and the firm of the informant. 8. Now, so far the petitioner's contentions are concerned, the case registered at Lakhisarai Police Station prima facie appears to have arisen out of the business transactions between the petitioner's firm and the firm of the informant. However, the petitioner's firm has disputed the dues to the informant as he made payment of the dues, on 9.6.2010, 10.9.2010, 23.12.2010, 1.1.2011, 6.1.2011, 20.1.2011, 7.2.2012, 08.2.2012, 5.3.2013, 6.4.2013, 11.11.2013 vide the bank statements. The petitioner is shown to be a resident of Guwahati and the goods in question were allegedly delivered in Assam. On the other hand, the alleged offence under Section 420 of the IPC is a non-bailable one. 9. Therefore, on being satisfied, in the interim, it is provided that in the event of arrest, the petitioner shall be released on transit bail, on furnishing surety bond of Rs. 50,000/- and personal bond of the like amount to the satisfaction of the arresting authority. 10. It is made clear that the above direction is transitory to remain in force from today for a period of 4 (four) weeks only, so as to enable the petitioner to invoke jurisdiction of the jurisdictional court. This order shall not be treated as a precedent. The application stands disposed of as above.