ORDER

25.01.2024.

Heard Mr. Z Kamar, learned Senior Counsel, assisted by Mr. S.J.

Choudhury, learned counsel for the accused and Mr. M. Phukan, learned Public Prosecutor, Assam for the State respondent.

2. This application, under Section 439 of the Code of Criminal Procedure, is preferred by accused, namely, Sajahan Sarkar, who has been languishing in jail hazoot since 22.11.2023, in connection with Dibrugarh P.S. Case No. 936/2016, registered under Sections 7/13(1)(a)(b)(d)(2) of the P.C. Act read with section 120[B]/420 of the IPC and added section

463/468/471/477(A)/201 of the IPC, for granting bail.

3. The aforementioned case has been registered on the basis of an FIR lodged by Dr. Anshumita Gogoi on 27.10.2016.

4. The essence of allegations made in the FIR dated 27.10.2016, is that one Nabakanta Patir has contacted her and asked her to pay sum of Rs.10,00,000/ for recruiting her in a post of Dental Surgeon, conducted by APSC. And while she came to Dibrugarh to hand over aforementioned sum then Police caught him red handed.

5. Mr. Kamar, learned Senior Counsel for the accused submits that the accused was arrested on 22.11.2023 and since then he has been languishing in jail hazoot. Mr. Kamar further submits that the at the time of arrest of the accused the I.O. has not given him any Notice as mandated by section 41A Cr.P.C. and as held by Hon’ble Supreme Court in the case of Satinder Kumar Antil vs. CBI & Another reported in (2022) 10 SCC 51. Further, Mr. Kamar submits that given the nature of allegation leveled against the accused in the Forwarding Report none of the provisions of P.C. Act is applicable against him and that in the year 2013 the accused was not a public servant and that one of the co-accused has already been granted the privilege of bail by this court vide order dated 11.01.2024 in BA No. 4680 of 2023, and that he is ready to face the trial and therefore, it is contended to allow the petition.

6. On the other hand, Mr. M. Phukan, the learned Public Prosecutor, Assam submits that sections 7/13(1)(a)(b)(d)(2) of the P.C. Act are very much applicable herein this case, as the accused was involved in the conspiracy of bribing a public servant and the punishment prescribed for the same are more than 7 years and therefore I.O. has not given any Notice under section 41A Cr.P.C. and that the I.O. has collected sufficient materials and submitted charge sheet against the accused and therefore, it is contended to dismiss the petition. Mr. Phukan has referred to a decision of Hon’ble Supreme Court in Rakesh Kumar Paul vs. State of Assam reported in (2017) 15 SCC 67, in support of his submission.

7. In reply to above submissions of learned P.P., the learned counsel for the accused, referring to Article 20(1) of the Constitution of India submits that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence. And this is fundamental right of the accused.

8. Having heard the submissions of learned Advocates of both sides, I have carefully gone through the petition and the documents placed on record.

9. The allegation against the accused, as revealed by the forwarding report is that he has obtained job of Assam Government by adopting unlawful means in collusion with arrested accused Rakesh Kumar Paul and other officials of APSC. Also it appears that he has used illegal means to increase his marks in CCE-2013 by inserting fake Answer Sheet into his original Answer Sheet.

10. It also appears that the Forwarding Report is silent as regard to compliance of the provision of section 41A Cr.P.C. before causing arrest of the accused. While the learned Addl. P.P. could not produced the case diary before the court he was asked to obtain necessary instruction as regard the compliance of the provision of aforesaid section and accordingly the learned Addl. P.P., after obtaining instruction, appraised the court that the same was not complied with as the case was