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2022 DIGILAW 133 (GAU)

Pankaj Kumar Kakati v. State Of Assam

2022-02-11

RUMI KUMARI PHUKAN

body2022
JUDGMENT : 1. By filing this petition under Section 438 of the CrPC, petitioner Pankaj Kumar Kakati has sought for pre-arrest bail in connection with the Bongaigaon P.S. Case No.548/2021, registered under Section 384/511 of the IPC. 2. Heard Mr. A. Chamuah, learned counsel for the petitioner as well as Mr. M. Phukan, learned P.P., Assam representing the State and perused the record as well as the case diary produced. 3. The learned PP, Mr. M Phukan has submitted that the FSL Report of the Voice Sample has been received, which tallied the voice of the petitioner with the audio-clip in question. So far as the case is concerned, it reveals from the materials on record that an audio conversation (recording) was circulated in the social media by one Abdul Kader, wherein, he alleged about attempt of extortion by the petitioner, who was the then Additional SP, Bongaigaon. One Dipankar Roy Choudhury lodged an FIR before the SP, Bongaigaon, on the basis of the said audio-clip circulated in the social media, as per which, the Bongaigaon PS GD Entry No. 643/2021, dated 24.06.2021 was made and after collecting the audio/video-clip aired in the news channel, it was found that the present petitioner is in conversation with one Abdul Kader, demanding illegal gratification. In the said audio-conversation, the petitioner is referring 16 kgs in coded language, which means illegal gratification of Rs. 16 lacs. After collecting such audio-clip, formal FIR was filed by one police personnel, namely, Rahul Deury, which was registered as Bongaigaon PS Case No. 548/2021, under Sections 384/511 IPC. 4. In the course of investigation, the voice samples of both the persons appeared in the conversation, so collected was sent for FSL examination and accordingly, a report has been received. The certain witnesses have been examined from the Police Department, who were the drivers and other Police personnel, have identified the voice of the present petitioner in the said recording. However, save and except identifying the voice of the accused petitioner in the said conversation, there is no other witness about such demand made by the petitioner from said Abdul Kader. 5. On being queried by this Court, the learned P.P., Assam, submitted that no CDR Report from the telephone number of the petitioner to said Abdul Kader is found to reflect the above conversation. 5. On being queried by this Court, the learned P.P., Assam, submitted that no CDR Report from the telephone number of the petitioner to said Abdul Kader is found to reflect the above conversation. However, learned P.P. raised vehement objection against the bail prayer contending that the accused petitioner may influence the vital witnesses, if he is released on bail and/or maneuver the witnesses in his favour, etc. It is submitted that the driver and the PSO of the accused petitioner have identified his voice. 6. I have gone through the Case Diary, along with the statement of the relevant witnesses. 7. In his statement recorded under Section 161 CrPC, said Abdul Kader stated that he used to pay different amount of money to the accused petitioner through Mehtab Hussain since December, 2020, but when many false cases were registered against him, he then engaged one Advocate Abdul Mannan to handle the matter and through Abdul Mannan he paid certain amount to the accused petitioner. He said the word 15 kgs' used to refer Rs. 15 lacs and through Abdul Mannan, he paid the said amount. 8. From the above statement of Abdul Kader, it reveals that he paid money to the petitioner through these two persons, namely, Mehtab Hussain and Advocate Abdul Mannan. But both these witnesses specifically denied about such transaction through them and they were never paid any amount by said Abdul Kader to deliver the same to the petitioner. 9. It is to be noted that in the audio clip the said Abdul Kader stated that he paid the amount through Abdul Mannan, which is now being denied by him. That being so, the conversation so far appeared in the audio-clip about the demand for illegal gratification remained unsubstantiated. On the other hand, if we assess the credentials of said Abdul Kader, it will reveal that as per the Police record itself, he is a coal mafia and several cases are pending against him (as per annexure on record). 10. The petitioner filed an additional affidavit to submit that following cases are pending against said Abdul Kader and presently, he is absconding. The seven pending cases are:- 1) Jogighopa PS Case No. 154/2020, under Sections 420/406/468/34 IPC. 2) Manikpur PS Case No. 275/2020, under Sections 379/411/420/468/34 IPC. 3) Abhayapuri PS Case No. 502/2021, under 379/420/468/471 IPC. 4) Abhayapuri PS Case No. 97/2021, under Sections 420/468 IPC. The seven pending cases are:- 1) Jogighopa PS Case No. 154/2020, under Sections 420/406/468/34 IPC. 2) Manikpur PS Case No. 275/2020, under Sections 379/411/420/468/34 IPC. 3) Abhayapuri PS Case No. 502/2021, under 379/420/468/471 IPC. 4) Abhayapuri PS Case No. 97/2021, under Sections 420/468 IPC. 5) Agamoni PS Case No. 47/2021, under Section 379 IPC, read with Section 11(1) (a) of Prevention of Cruelty to Animal Act, 1960. 6) Golakganj PS Case No. 71/2021, under Sections 120(B)/420/379 IPC, read with Sections 11 (1) (a) (b) (d) of PCA Act. 7) Manikpur PS Case No. 74/2021, under Sections 120(B)/348/384 IPC. 11. In most of the cases, the serious allegation has been raised against said Abdul Kader that he used to run 13 coal businesses at Jogighopa Coal Market, by using fake GSTIN numbers, etc. etc. The various copies of FIRs against said Abdul Kader have been annexed with the record, which itself reveal that the antecedent of the said Abdul Kader is shaky. In view of the facts and circumstances, while the credibility of the person, who made the complaint is itself suspicious, no explicit reliance can be given upon the inconsistent statement of a person, which is not supported by his own referred witnesses to the entire transactions. Thus, in the present case, in absence of convincing evidence about the demand made by the petitioner, same cannot be accepted only on the basis of the telephonic conversation, while the source of such communication, i.e, CDR Report is not made available to show the authenticity. The FSL Report regarding the identification is not helpful for the prosecution in the given facts and circumstances. Further, even if the alleged conversation, that has been taken place between the petitioner and the said Abdul Kader, also reveals only about certain demand for gratification (may be in a coded manner), but as it does not state about delivery of money out of such demand, and thus, the offence under Section 384 IPC is not made out. 12. The present petitioner has already appeared and given his statement before the IO and it is expected that being a responsible officer, he will cooperate with the investigation without hampering the same. 13. Accordingly, this Court is of the view that custodial interrogation of the petitioner is not warranted and the bail petition stands allowed. 12. The present petitioner has already appeared and given his statement before the IO and it is expected that being a responsible officer, he will cooperate with the investigation without hampering the same. 13. Accordingly, this Court is of the view that custodial interrogation of the petitioner is not warranted and the bail petition stands allowed. The interim bail order granted earlier is hereby made absolute, with a direction to the petitioner to cooperate with the investigation as and when required and will not hamper or tamper the investigation. 14. The bail petition stands disposed of. 15. Return back the case diary forthwith.