Gauhati High Court
Prasanta Kumar Dutta vs The State Of Assam on 27 September, 2022
Page No.# 1/21
GAHC010028202022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./348/2022
PRASANTA KUMAR DUTTA
SON OF LATE SASHIDHAR DUTTA
R/O HOUSE NO. 6, RUPKONWAR PATH, BYE LANE NO. 2, UPPER
HENGRABARI, GUWAHATI UNDER DISPUR POLICE STATION IN THE DIST.
OF KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE PP, ASSAM
Advocate for the Petitioner : MR Z KAMAR
Advocate for the Respondent : PP, ASSAM
BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the Appellant : Mr. Z. Kamar, Sr. Advocate For the Respondents : Mr. M. Phukan, P.P. Assam Date of Hearing : 24.08.2022, 06.09.2022 Page No.# 2/21 Date of Judgement & Order : 27.09.2022 JUDGEMENT & ORDER (CAV) Heard Mr. Z. Kamar, learned Senior Counsel assisted by Mr. B. Talukdar, learned counsel for the petitioner. Also heard Mr. M. Phukan, learned Public Prosecutor for the State of Assam.
2. The hearing of the present petition was concluded on 24.08.2022 and Judgment was reserved. In the meantime, the learned Public Prosecutor, Mr. M. Phukan has forwarded an Order dated 26.08.2022 passed in BA No. 1369/2022 through the Court Master of this Court. By the said order a coordinate Bench has rejected a bail application of a co-accused. Such approach of sending order/judgment after conclusion of hearing is not appreciated by this Court, and according to this Court the due course on the part of the learned Public Prosecutor in the given facts of the case would have been to make a mention before the Court so that the case could be further listed and an opportunity to the learned counsel for the petitioner be given to place his contention on the applicability of the said order passed by the coordinate Bench. However, in the interest of justice, this Court has directed to list this matter under the column "to be spoken"
and accordingly the matter was listed on 06.09.2022. Further arguments were advanced by the learned counsel for the parties and hearing was concluded and the case was reserved for judgment.
3. During the course of argument, Mr. Phukan, while seeking apology in sending the order to the chamber of this Court in the manner it was sent, Page No.# 3/21 submits that he had no other intention but to bring to notice of the Court, the fact of passing of the order dated 26.08.2022 in BA No. 1369/2022.
4. This Court accepts such apology taking note of the otherwise good conduct and reputation of the learned Public Prosecutor, Mr. Phukan.
5. The present petition is filed under Section 439 of the Code of Criminal Procedure, 1973 for allowing the accused/petitioner to go on bail, who is in Jail since 07.10.2020 in connection with Special Case No. 06/2021 under Sections 120(B)/120/201/204/212/420/506/34 of the Indian Penal Code, 1860 read with Section 66B of the Information Technology Act, 2000 read with Sections 25 (1B)(a)/25(1B) (h) of the Arms Act, 1959 read with Section 8 of the prevention of Corruption Act, 1988 arising out of CID P.S. Case No. 21/2021 pending in the Court of Special Judge, Assam, Guwahati.
6. The backgrounds facts leading to filing of the present petition can be summarized as follows:
i. The Chairman of State Level Police Recruitment Board Guwahati, Assam lodged an ejahar on 20.09.2020 before the Inspector General of Police, CID Headquarter, Ulubari, Guwahati alleging inter-alia that the written test for recruitment of 597 posts of Sub-Inspector (UB) in Assam Police was to be held on 15 th September, 2020 from 12:00 PM to 03:00 PM in various venues/centres in all the District Head Quarters across the State under the supervision of District Level Selection Committee constituted by State Level Police Recruitment Board, Assam. However, unfortunately, the question paper had been leaked and Page No.# 4/21 circulated in Whatsapp and for such reason, the written test had to be cancelled. It was further alleged that the culprit with their malafide intention have damaged the image of the Recruitment Board as well as the Government of Assam, apart from causing financial loss of the Government and playing with the careers of aspiring candidates.
ii. On receipt of such F.I.R., the Deputy Superintendent of Police, CID, Guwahati, Assam registered a case being CID Police Station Case No. 21/2020 under Section 120(B)/409/201/204 IPC read with Section 66(B) of the IT Act, 2000 and Section 25(1-B) of the Arms Act, 1959 and started the investigation of the case.
iii. The present petitioner was arrested in connection with the said case on 07.10.2021. The arrest memo reflects that the petitioner was arrested at CID Police Station, Ulubari, Guwahati. The petitioner was granted police custody for six (6) days by the learned Judicial Magistrate 1st Class, Guwahati and subsequently on expiry of the said six (6) day of police custody, the accused petitioner was remanded back to the judicial custody and since then the accused petitioner is in jail.
iv. After completion of the investigation of the case, the investigating authority laid a charge-sheet being Charge-sheet No. 07/2020 dated 18.12.2020 and one Supplementary Charge-sheet being (Conclusive) C.S. No. 07-A on 23.04.2021 was filed under Sections 120B/120/201/204/212/420/506/34 of IPC read with Section 66B of IT Act read with Section 25 1-B(a)/25 1-B(h) of Arms Page No.# 5/21 Act read with Section 8 of PC Act., before the learned Special Judge, Assam, Guwahati in Special Case No. 06/2021 along with some other accused persons. The present accused petitioner was arrayed as accused No. 2.
v. Thereafter, the accused petitioner approached this Court by filing an application under Section 439 of Cr.P.C. being Bail Application No. 544/2021 and prayed for enlarging him on bail in connection with the said case. This Court by Judgment dated 24.06.2021, dismissed such application on the ground that from the investigation it is prima facie revealed that the petitioner was one of the kingpins of the recruitment scam. The Court also held, relying on the decision of the Hon'ble Apex Court in State of Bihar -Vs- Amit Kumar reported in (2017) 13 SCC 751 that the offences in present case being socio-economic in nature, a different approach must be taken while considering a bail application. The further ground of rejection of such bail is that the petitioner had fled away from Guwahati to avoid arrest immediately after cancellation of the examination and he was apprehended by police at the Indo-Nepal border while trying to flee to Nepal. Yet another ground was that the petitioner had destroyed vital evidence to cover up his wrongdoings. The Court also came to a conclusion that the petitioner being a retired DIG (Deputy Inspector General of Police) of Assam Police is having considerable influence in his erstwhile department. Accordingly, this Court came to a conclusion that the petitioner poses "flight risk" in the sense that, if he is released on bail, he may again flee from justice which would ultimately delay or frustrate the trial of the case. The Court Page No.# 6/21 also came to a conclusion that the petitioner may also tamper with the witnesses and other evidence of the case, as he is an influential man. It was a ground for the rejection of the bail application of the accused petitioner that the charge-sheet discloses that the petitioner had criminally intimidated the mother of one candidate for the aforesaid recruitment.
vi. Being aggrieved by such order, the accused petitioner approached the Hon'ble Apex Court by filing a Special Leave to Appeal (Crl) petition. The said petition was registered as Special Leave to Appeal (Crl) No. 5342/2021 . The Hon'ble Apex Court by its order dated 06.08.2021 dismissed the aforesaid Special Leave Petition as the Hon'ble Apex Court did not find any reason to interfere with the impugned order passed by this Court.
vii. Thereafter, the learned trial Court below by order dated 13.05.2022, framed charges against 28 numbers of accused and discharged 16 number of accused out of total 44 accused. The learned Court below so far relating to the accusation against the present petitioner recorded the following findings:-
"on perusal the materials collected by the investigating officer it appears that initially accused Prasanta Kr. Dutta, Rubul Hazarika, Saroj Sarma and Dibon Deka hatched conspiracy before the schedule date of SI (UB) Examination to leak question papers and for that they were in search of different options, ways and source from where the question papers could be leaked. They also searched different aspiring candidates and to that effect they published an "advertisement" in a daily paper owned by accused Saroj Sarma. Thereafter they entered with a conspiracy with accused Kumar Sanjit Krishna who was the SP, Karimganj and the custodian of the question papers for the examination to Page No.# 7/21 be conducted in different centers in the distrit of Karimganj. The State Level Police Recruitment Board entrusted accused Kumar Sanjit Krishna, a public servant, who was also the Chairman of District Level Selection Committee of Karimganj district to conduct the written test as per rules and he, before examination, by leaking question papers under his custody for consideration of huge amount of money committed breach of trust and it was the part of conspiracy hatched among the accused Kumar Sanjit Krishna, Prasanta Kr. Dutta, Rubul Hazarika, Saroj Sarma and Dibon Deka. During the course of hearing it was argued that accused Prasanta Kr. Dutta, Saroj Sarma and Dibon Deka were not present in Karimganj district; so they were not the part of conspiracy as alleged. On perusal the materials on record it transpires that the above mentioned accused persons are very shrewd. They designed the conspiracy from the month of August by purchasing mobile handsets, collecting sim cards from remote areas. It is a fact that on the day/night of leaking question papers only accused Rubil Hazarika visited Karimganj and met accused Kumar Sanjit Krishna and accused Saroj Sarma staying in Guwahati arranged money which subsequently handed over to the trusted persons of accused Kumar Sanjit Krishna in Guwahati. Accused Prasanta Kr. Dutta and accused Dibon Deka immediately after getting the question papers conducted mock test at Hotel Bhargav Grand and Thank You lodge. The modus operendi to execute their illegal plan shows that all of them were actively involved with the conspiracy which was greater in nature".
viii. The learned Court below also held as under:-
"It is true that taking coaching cannot be an offence; but it is an offence to appear in mock test with leaked question papers. Mock test was held in two different venues in the previous day of the main test. The day and time of conducting mock test create doubt as in normal course no coaching center conducts mock test just before the day of main test. Besides it, there is no material that there were regular coaching centers at Hotel Bhargav Grand and Thank You Lodge. The hotel and the Lodge were booked for the purpose of Page No.# 8/21 conducting mock test with leaked question papers. During investigation confessional statement of accused Hirak Jyoti Barua was recorded where he discloses his involvement. The materials available in the case record and case diary are sufficient to presume that the accused persons entered into criminal conspiracy with accused Prasanta Kr. Dutta, Dibon Deka and others and by appearing in mock test with leaked question papers and appearing in the main test on the very next day took advantage of the examination. Because of their illegal act, the main examination was canalled which caused huge loss to the Govt. of Assam and also the genuine candidates. The illegal act of the accused persons attracts the penal provision of Section 120-B/420 IPC".
ix. Finally, the learned court after discussing the materials available on record came to the following conclusion:-
"After perusal the materials collected by the investigating officer, I am of the opinion that there are grounds for presuming that accused Kumar Sanjit Krishna has committed offences punishable under Sections 120- B/119/201/409/420/461/506 IPC read with Sections 7 (a) (b) (c)/13(2) of P.C. Act read with Section 98(a) of the Assam Police Act, accused Prasanta Kr. Dutta has committed offences punishable under Section 120- B/201/204/420 IPC read with Section 25 (1-B) (a)/ 25 (1-B) (h) of Arms Act read with Section 8 of P.C. Act, against accused Saroj Sarma under Sections 120-B/201/204/420/406 IPC read with Section 8 of P.C. Act, against accused Rubul Hazarika under Sections 120-B/201/204/420/406/461 IPC read with Section 8 of P.C. Act, against accused Dibon Deka under Sections 120-B/201/204/420 IPC read with Section 8 of P.C. Act, against accused Hirak Jyoti Barua, Kushal Das, Abhijit Boro, Mrinal Kr. Nath, Kakumani Nath, Manjit Bora, Jintu Nath, Jitu Mikir, Sanjib Kr. Sarma, Dhrubajyoti Baruah, Rakibul Islam @ Rekib and Hira Choudhury under Sections 120-B/420 IPC, against accused Rupam Das, Devraj Das, Pradip Mazumdar, Jaydeep Baruah, Rupam Deka, Pranab Bora, Pranjal Kr. Sarma under Sections 120-B/201/420 IPC, against accused Nripen Nath under Sections 120-B/204/420 IPC, against accused Page No.# 9/21 Subrata Sarkar and Sukanya Sarkar under Sections 120-B/201/420 IPC read with Section 7/12 of P.C. Act. Accordingly formal charges under Sections are framed against the above mentioned accused persons. Charges so framed are read over and explained to the accused persons which they have pleaded not guilty and claimed to be tried. So far accused tarini Kt. Banikya, Rituraj Borah, Anowar Ali, Priya Nath Gogoi @ Jintu Gogoi, Dipip Gogoi, Akhay Chand Baid Akhiya, Kumud Kalita, Bimal thapa, Alkesh Baishya, Ashok Das, Dhrubajyoti Das, Jugami Brahma, Kumud goswami and Amarjit Lahkar are concerned as per observation and discussion made above and upon consideration record of the case and the documents submitted therewith, I am of the considered view that there is not sufficient ground for proceeding against them and hence the accused persons, above mentioned, are discharged". (Emphasis supplied)
7. Argument of Mr. Z. Kamar, learned Senior Counsel for the petitioner:
i. Mr. Z. Kamar, learned Senior Counsel contends that the petitioner has been in jail for last more than two years. The prosecution is relying upon more than 200 witnesses and thousands of documents. Till now only two witnesses have been examined. And therefore, there is no likelihood of completion of trial in near future. Accordingly, Mr. Kamar submits that considering the life and personal liberty of the petitioner, the petitioner should be released on bail.
ii. Mr. Kamar, learned Senior Counsel argues that though in earlier occasion, and also in the charge-sheet it has been depicted that the petitioner is "flight risk" because he tried to flee away to Nepal and he was arrested in the Indo-Nepal Border, however, neither in the Page No.# 10/21 charge-sheet nor in the order framing the charge or in any of the documents relied by the prosecuting agency, there is any material to show that the petitioner tried to flee away and that he was arrested at the Indo-Nepal Border. Relying on the arrest memo, Mr. Kamar, learned Senior Counsel submits that the arrest memo itself shows that the petitioner was arrested at Guwahati. That being so, Mr. Kamar submits that there is no "flight risk" so far relating to the present petitioner.
iii. Mr. Kamar, learned Senior Counsel further submits that charge-
sheet has already been filed, charge has already been framed, therefore, at this stage, there is no scope for the petitioner to hamper or tamper with the investigation. Therefore, no meaningful purpose shall be served if the petitioner is continued to be in custody.
iv. It is the further contention of Mr. Kamar, learned Senior Counsel that the petitioner is a retired Government Servant and on the date of his arrest and lodging of the F.I.R., he had already retired and therefore, prima facie no case of P.C. Act is made out against him.
v. The further contention of Mr. Kamar, learned Senior Counsel is that the allegation under the Arms Act, it is the admitted position, which is also reflected in the order of framing charge that though a gun was found from the possession of the petitioner, that was a licensed gun and only lacuna was that on the date of seizure of the same, the license had expired.
vi. The other contention of Mr. Kamar, learned Senior Counsel is that Page No.# 11/21 even if the petitioner is convicted for the offences, under which the charges had been framed against the accused, the maximum punishable period shall be 7 (seven) years and the petitioner has been in custody for last two years and there is no likelihood of completion of the trial in the backdrop of the magnitude of documents and the reliance of 208 prosecution witnesses.
vii. Mr. Kamar, learned Senior Counsel submits that there is change in the circumstances between rejection of earlier bail order by this Court and by the Hon'ble Apex Court and present inasmuch as after the passing of the said orders by the said two Courts, the charge has been framed and accordingly in the change circumstances, the petitioner has approached this Court.
viii. The further contention of Mr. Kamar, learned Senior Counsel is that the present case cannot be said to be an economic offence and no case is registered or charge framed under any of the offences, which can be termed as an economic offence. Therefore, there is a change in circumstances between the findings of this Court in its earlier orders and the present situation in view of framing of charges.
8. Argument of, Mr. M. Phukan, learned Public Prosecutor, State of Assam
(i) Mr. Phukan, learned Public Prosecutor relying on the judgment of Hon'ble Apex Court in State of Bihar -Vs- Amit Kumar reported in (2017) 13 SCC 751 contends that offences charged are very serious in nature and are socio-economic offence, which constitute a class apart and need to be visited with Page No.# 12/21 a different approach in the matter of bail and mere fact that the petitioner is in jail for howsoever long time. should not be a concern for the Courts.
(ii) Mr. Phukan, learned Public Prosecutor, further contends that the decision of the Hon'ble Apex Court in the case of Sanjay Chandra -Vs- CBI reported in (2012) 1 SCC 40 was taken note of and thereafter, the Apex Court in Amit Kumar (Supra) came to a finding that the socio-economic offences constitutes a class apart and need to be visited with a different approach in the matter of bail and socio-economic offence has deep routed conspiracies effecting the moral fiber of the society and causing irreparable harm, needs to be considered seriously.
(iii) The further contention of Mr. Phukan, learned Public Prosecutor for the State is that the individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which should bring in anarchy or disorder of the society.
(iv) Mr. Phukan, also contends that the prospect of greater justice requires that law and order should prevail in a civilize society.
(v) Mr. Phukan submits that the present case is having a serious impact on the society and therefore, the personal liberty and the social impact should be balanced and in the present case balance will be maintained if the petitioner is not allowed to go on bail. In support of his contention Mr. Phukan relies on the decision of the Hon'ble Apex Court in the case of Ash Mohammad -Vs-
Page No.# 13/21 Shiv Raj Singh @ Lalla Babu & Anr. reported in (2012) 9 SCC 446.
(vi) Mr. Phukan, learned Public Prosecutor further argues that the petitioner is being a retired DIG is an influential person. He contends that influential person are not merely those, who are holding or who have held public office, even their hitman and closed relatives, rich and powerful, and with muscle power having legs with one political party or other are quite influential in their own way in creating stumbling blocks for smooth investigation. The petitioner is an influential person with status and position being a retired DIG. His influence still continues and therefore, there is every likelihood of influencing the witnesses and prosecution in various manner. Therefore, the petitioner should not be allowed to go on bail, submits Mr. Phukan.
(vii) He also relies on an unreported decision of this Court in a bail application being Bail Appln. No. 3291/2021 (Rounak Ali Hazarika -Vs- State of Assam. to buttress his aforesaid contention. Mr. Phukan, learned Public Prosecutor, State of Assam further relies on a decision of this Court made in Bail Application No. 1410/2022 passed on 26.07.2022.
(viii) While concluding his argument, Mr. Phukan, learned Public Prosecutor, State of Assam submits that the offence is a socio- economic offence, it has largely impacted the social atmosphere of the State of Assam, put the Government of Assam in bad repute, the expectations of large number of meritorious candidates, unemployed meritorious candidates have been Page No.# 14/21 broken, the petitioner being retired DIG is still having influence and therefore, the present case is not a fit case for release of the petitioner on bail.
9. I have given anxious consideration to the arguments advanced by the learned counsel for the parties, perused the materials available on record including the charge-sheet and the order dated 13.05.2022 by which the learned Court below framed charge against the petitioner and other accused. Scanned copies of the statements of the witnesses and confessional statement of the co-accused recorded under Section 164 Cr.P.C. Also gone through the decisions relied on by the parties.
10. Section 439 of the Code of Criminal Procedure empowers the Criminal Courts a discretionary jurisdiction to grant bail to accused pending investigation or pending trial or pending appeals by convicted persons. Since it is a discretionary jurisdiction, such discretion need to be exercised with great care and caution. The Court while granting bail or exercising power under Section 439 of the Code of Criminal Procedure is to balance an individual's right to personal liberty as guaranteed under the Constitution of India as a citizen and impact of granting bail to an accused in the aforesaid circumstances taking note of the interest of the society as a whole.
11. The Hon'ble Apex Court, after dealing elaborately, the historical background of the provision of bail since the days of Magna Carta has laid down certain parameters for grant of bail in the case of Nikesh Tarachand Shah -Vs- Union of India reported in (2018) 11 SCC 1.
Page No.# 15/21 In Nikesh Tarachand Shah (supra), the Court held that as per the provision of the Code of Criminal Procedure, 1973, a Court dealing with bail applications moved by accused persons shall consider the following factors, amongst others while making a decision with the respect to grant or rejection of bail to such person accused of an offence:-
(a) The nature of accusation and the severity of punishment in case of conviction.
(b) The nature of supporting evidence for the purpose of recording, a prima facie satisfaction of the Court in support of such charge.
(c) Reasonable apprehension of the witnesses being tampered with by the accused or the apprehension of threat to the complainant.
(d) The danger of the accused absconding or fleeing if released on bail. The likelihood of the offence being repeated.
12. Though it is well settled that bail is a rule and jail is an exception, in a case where accusation is grave and serious and heinous, the same will fall under the acceptation rather than the rule.
13. The Hon'ble Apex Court in yet another case i.e. in Lt. Col. Prasad Shrikant Purohit -Vs- State of Maharastar, reported in (2015) 7 SCC 440 settled the law governing the grant or refusal of bail. In the said case also the following factors were directed to be taken in to account while deciding to grant bail.
a. The nature of accusation, the severity of punishment if convicted and the nature of supporting evidence.
b. Reasonable apprehension of tampering with the witness or of a threat Page No.# 16/21 to the complainant. Prima facie Court satisfaction in support of charge.
14. The Hon'ble Apex Court in the Sanjay Chandra (supra) while referring to the judgment of State of Kerela -Vs- Raniff reported in 2011 1 SCC 784 observed that in deciding bail applications an important fact which certainly needed to be taken into consideration by a Court is the delay in concluding the trial.
15. Recently, the Hon'ble Apex Court dealing with a more stringent and rigorous provision relating grant of bail under Section 43(D)(5) of U.A.P. Act, 1967 held that presence of statutory restriction like Section 43(D)(5) of U.A.P. Act,1967 per se does not oust the ability of the constitutional Courts to grant bail on the grounds of violation of Part-III of the Constitution of India. The Court held as follows:
"Courts are expected to appreciate the legislative policy against grant of bail but the rigors of such provisions will meltdown where there is no likelihood of trial being completed within a reasonable time and the period of incarnation already undergone had exceeded a substantial part of prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43(D)(5) of U.A.P.A. Act being used as sole metric of denial of bail for wholesale breach of constitutional right to speedy trial".
16. From the aforesaid, it is clear that the Hon'ble Apex Court has given emphasis on the right of an individual under Article 21 of the Constitution of India in the context of a stringent condition as mandated under Section 43(D)(5) of U.A.P. Act, 1967. The basic principle in that consideration was that personal liberty need to be protected, when a person is in jail for substantial part of prescribed sentence and in a condition where there is Page No.# 17/21 no likelihood of trial being completed within a reasonable time. In the considered opinion of this Court, such principle and ratio can be extended to the cases where incarnation is for commission of offences under IPC and bail is sought under Section 439 Cr.P.C., which is less stringent provisions than Section 43(D)(5) of U.A.P. Act.
17. Now, let this Court consider the facts of the present case in the aforesaid settled proposition of law.
18. The accusation made against the petitioner in the present case are under Sections 120-B/201/204/420 IPC read with Sections 25 (1-B) (a)/ 25 (1-B) (h) of Arms Act, 1959 read with Section 8 of P.C. Act, 1988.
19. In the case in hand, the maximum punishment for the offences under IPC are upto seven years. In case of the offences under the Arms Act, the same is also of seven years. So far relating to the P.C. Act, it is an admitted position that on the date of the lodging the FIR, the petitioner was not a public servant inasmuch as the maximum punishment is 7 (seven) years. In the aforesaid backdrop, the maximum punishment that can be given to the petitioner is seven years, in the event the petitioner is convicted. The petitioner in the present case has been under incarnation since his date of arrest and has completed a substantial part of the prescribed sentence.
20. The undisputed fact remains that the prosecution is proposing to rely on as many as 208 witnesses to prove the case of prosecution and also relies on volumes of document. The fact also remains that till date only two witnesses have been examined. In view of the aforesaid, this Court is of the considered opinion that there is no likelihood of trial being completed Page No.# 18/21 within a reasonable period of time and since the period of incarnation already undergone by the petitioner has exceeded more than 1/4 th of the prescribed sentence, to protect the petitioner's right under Article 21 of the Constitution of India he is entitle for bail.
21. The charge-sheet as well as the charge framed by the learned trial Court below reflects that the basic allegation of the petitioner is having a mock test in the hotel belonging to the petitioner thought allegation of his involvement in the larger conspiracy is there. It is the case of the prosecution as reflected in the charge-sheet and the charge framed by the learned Court below that the prime accused namely Kumar Sanjit Krishna, was the Superintendent of Police at the relevant point of time at Silchar and he was one of the official authority who dealt with the question papers and it is alleged that from his custody, the question papers were leaked. The confessional statement of the co-accused Rubul Hazarika also reflects the same.
22. The charge sheet and the scanned copy of the record reveals that two alleged accused namely Rubul Hazarika and Saresh Kumar Sharma has recorded their confessional statement under Section 164 Cr.P.C and they disclosed their complicity towards the then Superintendent of Police and alleged that the question papers were given to the person of the present accused.
23. The fact also remains that Kumar Sanjit Krishna was a serving Superintendent of Police and the petitioner was a retired police officer on the date of alleged offence.
24. Apprehension has been expressed by the prosecuting agency through Page No.# 19/21 the learned public prosecution that in the event of grant of bail to the preset petitioner, he may influence the prosecution witnesses. However, except oral submission there is nothing on record to suggest or to show the potential of the petitioner to indulge himself in such activity. This court is of the considered opinion that to balance the right of the petitioner under Article 21 of the Constitution of India, in the backdrop of his pre trial incarnation for more than two years and apprehension expressed by the Prosecution, this Court can impose appropriate condition against the petitioner.
25. Be that as it may, considering the accusation and charge-framed, this Court is of the considered opinion that further custodial detention of the petitioner may not be necessary in the present case.
26. This Court also took note of the fact that though there are accusations under Prevention of Corruption Act, against the petitioner, however, on the date of making such accusation the petitioner was not a Government servant.
27. Regarding the allegation an accusation under Arms Act, the fact remains that being a retired police officer, the petitioner was having a license gun and the said licensed had expired on the date of lodging of the F.I.R.
28. As discussed herein above, the nature of evidence and the evidence so far collected shows that the trial shall take considerable time and from the date of filing the FIR till examination of two witness has taken more than two years and there are 208 numbers of witnesses yet to be examined.
29. Though bail was rejected earlier by this Court, and the Hon'ble Apex Court also declined to interfere with such order, such orders were passed Page No.# 20/21 prior to framing of charges by the learned trial court below and considerable time has elapsed since then and only two witnesses have been examined till date.
30. As discussed herein above, the investigation in the case has already been over, the charge has already been laid by the investigating authority and formal charge has already been framed by the learned trial Court and therefore, no fruitful purpose shall be served by allowing the petitioner to be kept in custody inasmuch as the petitioner is an retired person having chronic renal decease. Such fact of age and illness also can be a consideration for grant of bail in the given facts and circumstances of the present case.
31. Considering the aforesaid aspects, proposition of law and in the given facts and circumstances of the present case, this Court is of the considered opinion that by imposing stringent condition, the attendance of the petitioner could be secured and he can be barred from hampering and tampering or influencing the witnesses.
32. In view of the peculiar facts and circumstances of the case, the petitioner namely Sri Prasanta Kr. Dutta be released on bail executing a bail bond of Rs. 2,00,000/- (Two lakhs) with two suitable solvent sureties of like amount to the satisfaction of the learned Special Judge, Guwahati, Assam in connection with aforementioned case. The bail granted to the petitioner shall be subject to following conditions:-
(a) The petitioner shall not leave the territorial jurisdiction of learned Special Judge, Guwahati, Assam without prior written permission from him;
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(b) The petitioner shall not hamper and tamper with the evidence of the case;
(c) The petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police office.
(d) The petitioner shall surrender his passport, if any (if not already surrendered) before the learned Special Judge.
(e) The petitioner shall not try to contact any of the witness by any mode including telephone, social media etc.
(f) The petitioner shall furnish the present residential address with proof to the Investigating Officer as well as to the learned trial Court below and shall not change the said resident without prior permission of the learned trial Court.
33. In the aforesaid term, this bail petition is allowed.
JUDGE Comparing Assistant