The main legal point established in the judgment is that the application for anticipatory bail under Section 438 of the Cr.P.C is not maintainable once the person is already arrested and released on transit bail.

JUDGMENT :

1. Heard Mr. A.M. Bora, learned senior counsel assisted by Mr. M More appearing on behalf of the petitioner. Also heard Mr. M Phukan, learned Public Prosecutor appearing for the respondent No.1 and Mr. K.N Choudhury, learned senior counsel assisted by Mr. D J Das, learned counsel appearing on behalf of the respondent No.2.

2. The present application under section 482 of the Cr.P.C. is filed assailing an order dated 26.10.2023 passed by the learned Additional Sessions Judge, No.2, Kamrup (M) Guwahati in anticipatory bail application being AB No.352/2023 filed by the respondent No.2 in connection with CID PS Case No.16/2023. By the impugned order the Learned Court called for the case diary.

3. The basic ground of challenge to such order is want of jurisdiction of the learned Additional Sessions Judge in entertaining an application under section 438 Cr.P.C on the alleged background that the respondent No.2 was arrested prior to filing of such application and he was only allowed transit bail by the learned court of learned Chief Metropolitan Magistrate (South), District Court, Saket to appear before the jurisdictional Magistrate.

4. This court while issuing notice of motion in the criminal petition stayed the impugned order dated 26.10.2023 until further orders.

5. The respondent No.2 has filed an interlocutory application for modification/vacation of the interim order dated 26.10.2023 passed by this Court, which is registered as I.A(Crl) 1147/2023.

6. The learned counsel representing the parties had advanced arguments on the merit of the criminal petition and accordingly, instead of determining the I.A, the entire criminal petition was taken up for final disposal on the agreement of the learned counsel for the parties.

7. The background facts:

Before determining the merit of the case, let this court record in a nutshell, the background facts leading to the filing of the present case, which are as follows:

I. The respondent No.2 herein lodged an FIR before the CID Police station, Assam against the respondent No.2 and some others, which was registered as CID PS Case No.16/2023.

II. The basic allegation as discernible from the aforesaid FIR is that the petitioner herein introduced the other co accused to be Government Officials under the State of Assam having a position to help the petitioner in obtaining certain Government Contract Works, however, the other co accused are not Government Officials and the accused No.2 and the other accused conspired with each other to impersonate and create a false impression that accused No.2 is a Government Official. Subsequently, fake work orders of crores of rupees were given to the petitioner, on the basis of which materials were supplied. However, subsequently, when bills were not cleared, on enquiry, the petitioner came to learn that the work orders were fake and the materials supplied were stolen. Amongst others the following allegations are made against the present petitioner.

“Shri Khushdeep Bansal claimed that he has good contacts with extremely resourceful officials at the top echelons of the Government of Assam and can be instrumental in getting the project for them. He claimed that the contract value for the aforesaid commodities is Rs.260,66,40,000 (rupees Two Hundred and Sixty Crores Sixty Six Lakhs and Forty Thousand only). He through WhatsApp also forwarded a snapshot of the requirement of the aforesaid products and images of approved products, previously sourced by the Government of Assam though Matak Autonomous Council, through other vendors………………….”

“That Shri Khusdeep Bansal was the mastermind behind the entire conspiracy as it was him who was looking for victims to be defrauded with aid and assistance of the other accused persons. Evidently, it was Shri Khushdeep Bansal and Shri Harish Bansal, who claimed to personally know Shri Partha Bhardwaj and also vouched for his position in the Matak Autonomous Council…………….”

III. The learned CJM, Kamrup (M) Guwahati by its order dated 13