AB 2894/2011 BEFORE HON’BLE MR JUSTICE P.K.MUSAHARY Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. J C Gogoi, learn ed counsel for the accused petitioners and Mr. B S Singha, learned AddI.P.P. Ass am. The case diary in connection with CID P.S.Case No.72/11, as called for, has been produced. I have gone through the case diary. An FIR was lodged by one Pranab Kumar Sarma, Chairman and Managing Director, Lan d Mark Establishment Pvt. Ltd. M.G. Road, Guwahati, a registered company engaged in the real estate development and construction of residential apartments and c ommercial complexes, having its head office at M G Road, Machkhowa, Guwahati, un der Bharalumukh Police Station with the Senior Superintendent of Police on 27.4. 09 alleging that on 14.4.09 police from Bharalumukh Police Station came to his r egistered office and picked up two of his officers and took them to the Police S tation. At the said Police Station they were forced to sign an undertaking under duress in presence of one Sri Aparesh Das Purkayastha to the effect that the am ount paid by his wife would be refunded. The police, as alleged by the said comp lainant did not register any case not to speak of taking any action against the erring police officials for the access committed by them. For this reason the af oresaid complainant approached the State Police Accountability Commission (herei nafter in short the ’Commission’) Assam by filing a complaint dated 24.6.2009 al leging inter alia the police excess and harassment. On receipt of such complaint the Commission vide its order dated 4.11.2010 advis ed the Director General of Police, Assam to present the departmental view• and a dditional fact on the said alleged incident of police excess. Pursuant to the or der of the said Commission, the present CID P.s.Case No.72/11 was registered u/s s 341/348/384/34 IPC. The matter was investigated/ enquired by Sri s.singh, Add! . S.P., (HQ)City, Guwahati who submitted a report dated 30.6.09 to the Sr. s.P.( City). In the said report, it is stated, amongst others, that Sri Aparesh Das Pu rkayastha lodged an FIR at Bharalumukh Police Station against one Sri Devisankar Kar and Sri Ajit Chakraboarty of Land Mark Establishment Pvt. Ltd and on the st rength of the FIR and direction of the O.C.Bharalumukh Police Station, 5.1. Nitu l Das had gone to office of the Land Mark Establishment Pvt. Ltd and called Sri Devisankar Kar and Sri Ajit Chakraboarty to Bharalumukh Police Station, who acco mpanied him accordingly. At police station they were questioned about the cancel lation of flat of smti Ratna Das Purkayastha and asked for refund of Rs. 7,25,00 0/- which she paid to them in lieu of the flat. They were also informed that if they could not return back the money then a case could be registered against the m as per FIR of Sri Aparesh Das Purkayastha. So out of fear Sri Devisankar Kar g ave an undertaking on non-judicial stamp paper( which was brought from their off ice by their colleague Sri Jamir ) that they would return the money in two insta lments. The first instalments would be paid on 30.4.09. The complainant of the F IR Sri Aparesh Das Purkayastha on getting the undertaking was satisfied and info rmed the police that he would not proceed with the FIR. Later on, when he did no t get his money back on the date fixed he approached the learned court of CJM, K amrup at Guwahati and filed a complaint which was forwarded to the Bharalumukh P olice Station by learned CJM, Kamrup Guwahati for registration of a case and acc ordingly the O.C. Bharalumukh Police Station have registered a case vide Bharalu mukh P.S.Case No.156/09 registered u/ss 420/406/34 IPC which is under investigat ion. The AddI.S.P.(HQ),Guwahati came to conclusion that \ from the above facts a nd circumstances it is not proved beyond doubt that staff of Bharalumukh P.S. ha ve compelled Sri Devi Sankar Kar to give an undertaking for refund the money to Smti Ratna Das Purkayastha neither have increased the amount from Rs. 5,25, 000/ - to Rs. 7,25,000/-. The Bharalumukh P.S.staff have acted on FIR submitted by Sh ri Aparesh Das Purkayastha against Sri Devi Sankar Kar. However, it cannot be ru led out that the P.S.Staff may have spoken in high tone with Sri Devi Sankar Kar during questioning him at the P.S\. The Senior S.P.(City) also made enquiry and verified the police station record a nd thereafter submitted a detailed report dated 16.7.09 to the Secretary, State Police Accountability Commission saying that the complaints brought by Shri Pran ab Kumar Sarma, appeared to be exaggeration of what had happened because of his vested interest with an observation that the police officer lacked professional approach while dealing with the entire matter. On perusal of the entire case diary it is found that Smti Ratna Das Purkayastha, wife of Shri Aparesh Das Purkayastha, booked a fiat by paying some amount to th e said builder but she allegedly failed to pay the entire agreed amount for whic h the builder Pranab Kumar Sarma cancelled the booking of the Flat without retur ning the amount to Smti Ratna Das Purkayastha. On complaint made by her the buil ding company offered her to return less amount which she refused to accept and w anted to realise the entire amount she allegedly paid from the builder through p olice action. The accused petitioners being the O.c. and S.L, allegedly committe d an excess. There is a communication bearing memo No.CB/ CIO Enq/09/390• dated 14.8.09 issue d by Inspector General of Police, CIO, Assam addressed to the Director General o f Police, Assam, Guwahati informing him that prima facie the accused persons too k money from the complainant against a flat but the flat was not made ready for delivery as per agreed date and hence the case. It is also stated that the builder did not return the money to Smti Ratna Das Pu rkayastha in time despite several efforts and, therefore as per enquiry report, prima facie the arrest of the accused cannot be said to be unjustified. Having g one through the entire case diary and the documents made available, I am of the considered view that there is exaggeration in both the complaints made by Shri P ranab Kumar Sarma and Smti Ratna Oas Purkayastha in their bid to give a lesson t o their opponent and get them punished. So far the present accused petitioners a re concerned, the enquiry reports of the Senior S.P(City) and Add/. S.P.(HQ) Cit y, Guwahati, do not support the allegation of excess committed by them on the co mplainant Sri Pranab Kumar Sarma. They being the police officials, I am of the c onsidered view that they would not be able to jump or abscond, if they are enlar ged on bail and their presence /appearance before the court or any other legal a uthority would be available as and when required before or after submission of c harge-sheet. In view of the above, I do not find any reason for refusing privile ge of pre-arrest bail to the accused petitioners. This petition stands accepted. It is directed that in the evel1t of arrest of th e the accused petitioners, Sri Prafulla Bora, Inspector of Police and Sri Nitul Das, S.I of Police in connection with CIO P.S.Case No.72 of 2011 registered u/ss 341/348/384/34 IPC, they shall be released on bail on furnishing bail bond of R S.30,OOO/- each with one local surety of like amount each to the satisfaction of the arresting authority on condition u/s 438(2) Cr.P.C. AB stands disposed of.