Page No.# 1/12 vs The State Of Assam

2025:GAU-AS:11754

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

Case No. : Bail Appln./2768/2025

ARIHANT JAIN AND ANR SON OF LATE SURESH KUMAR JAIN R/O FLAT NO. 42, GANPATI ENCLAVE, KAHILIPARA, NEAR DPI GUWAHATI, KAMRUP (M), ASSAM, PIN- 781019

2: SAHIL JAIN S/O LATE SURESH KUMAR JAIN R/O FLAT NO. 42 GANPATI ENCLAVE KAHILIPARA NEAR DPI GUWAHATI KAMRUP (M) ASSAM PIN-78101

VERSUS

THE STATE OF ASSAM REP BY THE PP, ASSAM

Advocate for the Petitioner : MR. A M BORA, MR. V A CHOWDHURY,MR. M S HUSSAIN,MR. D K BAIDYA

Advocate for the Respondent : PP, ASSAM, Page No.# 2/12

BEFORE

HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

ORDER

01.09.2025

1. Heard Mr. A.M. Bora, the learned Senior Counsel, assisted by Mr. D.K. Baidya, the learned counsel for the petitioners. Also heard Mr. K.K. Parasar, the learned Additional Public Prosecutor appearing for the State of Assam.

2. This application under Section 483 of the BNSS, 2023 has been filed by the petitioners, namely, (1) Arihant Jain and (2) Sahil Jain, who are detained behind the bars since 20.08.2025 in connection with Jagiroad P.S. Case No. 193/2025 under Sections 61(2)/318(4)/340(2)/316(4)/306 of BNS, 2023.

3. The gist of accusation in this case is that one Gnaneswar Rao Krovvidi, Senior Site Manager, Keller Ground Engineering Pvt. Ltd. had lodged an FIR before the Officer-in-Charge of the Jagiroad Police Station, inter alia, alleging that the present petitioners, along with one Mr. K. Moorthi, who is an employee of the complainant's Company, had connived and planned to inflate the diesel quantity and also adulterated the same. It is pertinent to mention herein that M/s Keller Ground Engineering India Pvt. Ltd. has been engaged by M/s Tata Projects Limited for Construction of piling work (TPL site), of Semi Conductor plant in Jagiroad by Tata Semiconductor Assembly and Test Pvt. Ltd. It is also stated in the FIR that M/s Keller Ground Engineering India Pvt. Ltd. requires huge quantity of diesel requirement for the project and as there were no major fuel stations near to the job site at Jagiroad, the company of the petitioners, namely, FuelX was appointed as vendor to supply diesel as per requirement on

daily basis with effect from 1st December 2024.

4. It is also alleged in the FIR that when one owner of the machine, at Page No.# 3/12

job site, has raised concern on the quantity of diesel, on 24 th April 2025, the verification of the registers maintained by the company was done and it was found that the difference of Rs. 20,00,000/-(Rupees Twenty lakhs only) per month was there for the duration December 2024 to April 2025. It was anticipated that the difference of actual fuel used and the payment made would be to the tune of Rs. 1,0000000/- (Rupees One Crore only). It is also stated in the FIR that during enquiry, it could be found that Mr. Moorthi, whose salary is approximately Rs. 40,000/- (Rupees Forty Thousand only) per month have invested approximately an amount of Rs. 15,50,000/- (Rupees Fifteen Lakhs and Fifty Thousand only) in share market. It has also come to the notice during enquiry that brother of the petitioner No. 1, i.e. petitioner No. 2 Sahil Jain had paid an amount of Rs. 3,20,000/- (Rupees Three Lakhs Twenty Thousand only) through Google Pay transaction to Mr. Moorthi which has raised suspicion regarding conspiracy between the accused persons to misappropriate money of the complainant's company through fraudulent means.

5. It is also stated in the FIR that the complainant's company has cancelled the fuel supply deal with the petitioners. However, even after the said cancellation, the pre-loaded petrol cards which were used to purchase petrol from various petrol pumps have not yet been returned back to the complainant's company.

6. The learned Senior counsel for the petitioners has submitted that all the offences involved in this case entails punishment of imprisonment of not more than 7 (seven) years and therefore, there is requirement of issuing the notice under Section 35 (3) of the BNSS, 2023, in this case. He submits that in this case without issuing notice under Section 35(3) of BNSS, 2023 the petitioners were arrested on 20.08.2025. When both the petitioners were Page No.# 4/12

produced before the Magistrate, the Investigating Officer of the case did not mention any facts on the basis of which, he came to the satisfaction that in this case arrest is necessary and that the notice under Section 35 (3) of BNSS may be dispensed with.

7. The learned Senior Counsel for the petitioners has submitted that in this case while arresting the petitioners, the arresting authority has violated the guidelines of the Apex Court issued in this regard in the case of "Arnesh Kumar v. State of Bihar" reported in "(2014)8 SCC 273" as well as in the case of "Satender Kumar Antil v. Central Bureau of Investigation and Anr." reported in "(2022) 10SCC 51."

8. He submits that in this case the Arresting Authority /Investigating Officer has only mechanically reproduced, in the forwarding report, or the conditions in clause (a) to (e) of Section 35(1)(b)(ii) of BNSS, 2023 for effecting arrest without furnishing there any materials on the basis of which the satisfaction was arrived at.

9. The learned Senior Counsel for the petitioners has also submitted that the learned Chief Judicial Magistrate, Morigaon, before whom the petitioners were produced after they were arrested, has also mechanically remanded the petitioners to the police custody for 2(two) days and thereafter, to judicial custody without considering the fact that the arresting authority had stated no facts on the basis of which it came to the conclusion that the arrest of the petitioners was necessary in this case, though none of the offences involved in this case entails punishment of more than 7(seven) years imprisonment.

10. The learned Senior Counsel for the petitioners also submitted that though the checklist for arrest without warrant under Section 35 (1) (b)(ii) of the BNSS, 2023 were furnished to the Magistrate in this case, however in the Page No.# 5/12

columns under reasons for arrest mentioned in the said checklist the Investigating Officer has filled up the columns only in "yes" or "no" without stating the facts for which such conclusions were drawn.

11. The learned Senior Counsel for the petitioners has submitted that the petitioners have been made scapegoats in this case. He submits that the FIR itself indicates that it was one Mr. K Moorthi, who is the employee of the complainant's Company, had done dereliction in duty in maintaining proper records and registers. He also submits that there is nothing on record to indicate that there was any conspiracy between the petitioners and the absconding accused Mr. K Moorthi in deceiving the complainant's Company. He also submits that during business transaction the said employee, Mr. K Moorthi came to be known to the present petitioners, on his request financial assistance was provided to him by the petitioner No. 2 which has nothing to do with the supply of fuel to Keller i.e., the complainant's Company.

12. It is also submitted by learned Senior Counsel for the petitioners that the petitioners were also remanded to police custody and thereafter, they were remanded to judicial custody and they are detained behind the bars since 20.08.2025 and now their custodial interrogation may not be necessary. He submits that the petitioners are permanent residents of Guwahati in the State of Assam and they are ready to cooperate in the investigation and as such their further custodial detention may not be necessary in this case.

13. On the other hand, Mr. KK Parasar, the learned Additional Public prosecutor has vehemently opposed the grant of bail to the petitioners on the ground that there are sufficient materials against them in the Case Diary and the investigation is at a very early stage. He further submits that in this case though notice under Section 35 (3) of BNSS, 2023 was not issued, however, in Page No.# 6/12

the forwarding report, the Investigating Officer has mentioned the reasons for not issuing of notice and also as to what necessitated the arrest of the petitioners in this case. He, therefore, submits that there is no violation of the guidelines issued by the Apex Court in the case of Arnesh Kumar v. State of Bihar(supra) and Satender Kumar Antil v. Central Bureau of Investigation and Anr. (supra) in this case.

14. He also submits that there are materials on record to indicate that due to conspiracy between the accused persons and their fraudulent activities, the complainant company had suffered loss to the tune of Rs. 1,0000000/- (Rupees one crore only) in between the period from December 2024 to April 2025. He further submits that there are material in the Case Diary to indicate that all the accused persons were involved in planned and systematic misappropriation of diesel and thereby, defrauded the complainants company approximately to the tune of Rs. 1,0000000/- (Rupees one crore only). He further submits that the Investigating Officer, while forwarding the present petitioners after their arrest before the learned Chief Judicial Magistrate, Morigaon has specifically mentioned that if the accused persons are not arrested they may involve in hampering the investigation by tampering the evidence.

15. It is also submitted that as the petitioners belongs to Kamrup (M) district, there is every likelihood that they may flee from their locality and it may be difficult to procure their attendance during investigation.

16. It is also stated that the arrest was necessary to prevent them from inducing or threatening or making promise to any persons acquainted with the facts of this case, so as to dissuade them from disclosing such facts to the Investigating Officer. Hence, he submits that the prayer for bail in this case may be rejected.

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17. I have considered the submissions made by the learned counsel for both sides and have gone through the Case Diary of Jagiroad P.S. Case No. 193/2025 which was produced by the learned Additional Public Prosecutor.

18. It appears that in the instant case all the offences which are involved entails punishment of imprisonment for not more than seven years, therefore, hence unless the Police Officer is satisfied that arrest of the petitioners was necessary due to existence of any of the conditions mentioned in clause (a) to

(e) of Section 35 (1)(b) (ii) and the Police Officer making such arrest records his reason in writing for arriving at the satisfaction that the arrest in this case of the petitioners is necessary, no arrest could have been made in this case.

19. In this connection, the Apex Court has observed in the case of Arnesh Kumar v. State of Bihar (supra) and same has also been reiterated by the Apex Court in the case of Satender Kumar Antil v. Central Bureau of Investigation and Anr. (supra) as follows:-

"11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list Page No.# 8/12

containing specified sub-clauses under Section 41(1)(b)

(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

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11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine."

20. The provisions contained in Section 35 of the BNSS, 2023 are in parimateria to the provisions which were there in Section 41 as well as 41A of the Code of Criminal Procedure, 1973.

21. From the above observation of the Apex Court, it appears that the Police Officer effecting an arrest in a case involving offence for which the punishment prescribed is imprisonment for less than 7(seven) years or which may extend to 7(seven) years, the Police Officer must be satisfied with existence of any condition mentioned in clause (a) to clause (e) of Section 35 (1) (b) (ii) of BNSS, 2023. When arriving at such satisfaction, the arresting Police Officer is also required to record his reasons in writing.

22. In the instant case, if we peruse the forwarding report submitted by the Investigating Officer to the learned Chief Judicial Magistrate, Morigaon on 20.08.2025, at the time of producing both the petitioners before the said Court after their arrest, it appears that the said forwarding report contains in detail the accusation made against the petitioners. However, at page No. 4 of the said Page No.# 10/12

forwarding report, in paragraph Nos. 5, 6 and 7 the Investigating Officer has mentioned that unless the petitioners are arrested there may be possibility of hampering and tampering the investigation and there is also chance of their fleeing from the course of justice. It is also mentioned therein that to prevent the petitioners from inducing or threatening or making any promise to the other witnesses to dissuade them from disclosing truthfully before the Investigating Officer the arrest was necessitated.

23. The Apex Court has in the above referred cases deprecated the practice of the arresting authority of mechanically reproducing the conditions mentioned in the statute regarding satisfaction of the arresting authority for necessitating the arrest. By merely stating that arrest of the petitioners are necessary for preventing them to temper and hamper the course of investigation and to prevent them from fleeing the course of justice is not sufficient, unless the Investigating Officer mentions the facts which led him to believe that the petitioners may flee the course of justice or may hamper the investigation or may threaten the witnesses.

24. On perusal of the checklist for arrest which is available in the Case Diary, it appears that the petitioners never previously jumped bail, however, in column No. 4 of the checklist the Investigating Officer has stated that there is a chance of jumping proceeding by the petitioners without mentioning as to why he arrived at such a conclusion.

25. Similarly, in the checklist, the Investigating Officer has stated that the petitioners are in position to influence the witnesses and police custody is necessary for the purpose of investigation. However, no reasons have been mentioned for arriving at the said conclusion by the Investigating Officer. It is a well settled proposition of law that existence of power to arrest and necessity of Page No.# 11/12

arrest in a particular case are two entirely different things. Merely because the police officer has the power to arrest, the statute requires that such arrest cannot be exercised, unless he is satisfied of existence of conditions mentioned in clause (a) to (e) of Section 35(1) (b) (ii) of BNSS, 2023 and the basis for arriving at such satisfaction should be mentioned clearly in writing supported by facts.

26. In the instant case, no facts have been mentioned by the Investigating Officer/arresting authority for arriving at the satisfaction that the petitioners may tamper with the evidence and may flee the course of justice and therefore, their arrest was necessary. As such, this Court is of considered opinion that in this case there has been violation of statutorily mandate contained in Section 35 (1)(b)(ii) of BNSS, 2023 in not mentioning the reasons for arriving at the satisfaction that arrest of the petitioners was necessary in this case.

27. This Court is also constrained to observe the learned Chief Judicial Magistrate, Morigaon also mechanically remanded the petitioners to judicial custody without there being any reasons mentioned in the checklist and without the Investigating Officer recording reasons for arriving at satisfaction that the arrest of petitioners was necessary under Section 35 (1)(b)(ii) BNSS. The petitioners are detained behind the bars since 20.08.2025 and most of the accusations are against the absconding accused Mr. K Moorthi.

28. The Investigating Officer while arresting the petitioners, in this case has failed to comply with the guidelines laid down by the Apex Court in the case of Arnesh Kumar v. State of Bihar (supra) in its letter and spirit, therefore, this Court is of considered opinion that the above-named petitioners are entitled to get bail.

29. In view of the discussions made in foregoing paragraphs, both the Page No.# 12/12

above-mentioned petitioners are allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand only) each with a suitable surety of like amount, subject to the satisfaction of the learned Chief Judicial Magistrate, Morrigaon with following conditions:-

(i) the petitioners shall appear before the Investigating Police Officer and shall co-operate with the investigation;

(ii) the petitioners shall not directly or indirectly make any inducement, threat or promise to the informant or to any other person who may be acquainted with the facts of the case so as to dissuade such person from disclosing such facts before the Investigating Officer or to any Court.

(iii) the petitioners shall appear before the Investigating Officer as and when so required for the purpose of fair investigation of this case.

(iv) Violation of any of the aforesaid conditions may be good ground for cancellation of bail to them in this case.

30. For the reasons aforesaid in this case, this bail application is accordingly disposed of.

31. Send back to the Case Diary.

JUDGE

Comparing Assistant