Gauhati High Court
Saidur Rahman vs The State Of Assam on 5 August, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010131172022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1852/2022
SAIDUR RAHMAN
S/O- SAMIR UDDIN, R/O- FAKALI PATHAR, P.S. JURIA, P.O. FAKALI
PATHAR, DIST. NAGAON, ASSAM, PIN- 782002.
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE P.P., ASSAM
Advocate for the Petitioner : MR. P MAHANTA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 05.08.2022 Heard Mr. P. Mahanta, learned counsel for the petitioner. Also heard Mr. Bhaskar Sharma, learned Addl. P.P. appearing for the State.
2. Apprehending arrest in connection with Nagaon P.S. Case No. 1939/2020 under sections 406/408/420/409 of the I.P.C., the petitioner has filed Page No.# 2/8 this second application under section 438 Cr.P.C., praying for pre-arrest bail. The previous application was rejected vide order dated 13.06.2022 passed by the coordinate Bench of this Court in A.B. 1163/2022.
3. The learned counsel for the petitioner has submitted that the previous application was mechanically rejected without appreciating the materials available on the record. It was also submitted that the I.O. of the case has mechanically and perfunctorily investigated the matter and has failed to appreciate that the petitioner was not at all involved in the commission of any offence. It is submitted that the police is falsely alleging commission of fraud by the petitioner, whereas the ground reality is that the petitioner is a bona fide student who has pursued his four year B. Pharm and two year M. Pharm course and had acquired B. Pharm degree from Swami Vivekanand University, Sagar, Madhya Pradesh in final examination held in the month of June, 2016 and he had acquired M. Pharm degree from Sarvepalli Radhakrishnan University, Bhopal in the examinations held in the month of February, 2021. Hence, it was submitted that the petitioner was entitled to minority scholarship for six years, for which no offence was committed. It was further submitted that none of the educational certificates of the petitioner was found to be forged or false. Accordingly, it was submitted that because of perfunctory and biased investigation by the I.O., the petitioner cannot be deprived of his fundamental right under Article 21 of the Constitution of India to remain free from fetters by deprivation of personal liberty. It was also submitted that no one has complained about misappropriation of their money. It was also submitted that as the informant was not the aggrieved person, he had no locus standi to lodge an FIR. Thus, it was submitted that the second bail application was maintainable and it was not required for the petitioner to demonstrate changed circumstances Page No.# 3/8 after the previous prayer for pre-arrest bail was rejected. No other submission was made.
4. The learned Addl. PP has produced the voluminous case diary in several volumes and has opposed the prayer for pre-arrest bail.
5. Perused the case diary. Considered the submissions made by the learned counsel for the petitioner.
6. As regards the first submission that the previous application was mechanically rejected without appreciating the materials available on the record, the Court is of the considered opinion that the Court is not hearing an appeal against the order dated 13.06.2022 passed by the coordinate Bench of this Court in A.B. 1163/2022. The learned counsel for the petitioner has also failed to demonstrate from the pleadings as to what material was omitted to be considered by this Court in the order dated 13.06.2022. Moreover, the learned counsel for the petitioner has not demonstrated that the order dated 13.06.2022 was per incuriam. Therefore, the coordinate Bench of equal strength has no power to revisit the order dated 13.06.2022 passed by this Court in A.B. 1163/2022. Thus, the said submission is without any merit and is repelled.
7. The submissions that the investigation was perfunctory and mechanically investigated the matter and has failed to appreciate that the petitioner was not at all involved in the commission of any offence is now examined. In this regard, the Court is of the considered opinion that this is merely a pre-arrest bail application, and not a challenge to the investigation, as such this Court would refrain from making any enquiry as regards whether the investigation carried out was proper or not by appreciating the material Page No.# 4/8 unearthed in course of investigation. Nonetheless, the learned counsel for the petitioner has not been able to produce any material to demonstrate why he has alleged the investigation to be mechanical or perfunctory. Thus the submission of the learned counsel for the petitioner on the point has no merit.
8. The other point submitted by the learned counsel for the petitioner is that the police is falsely alleging commission of fraud by the petitioner, whereas the ground reality is that the petitioner is a bona fide student who has pursued his four year B. Pharm and two year M. Pharm course and had acquired B. Pharm degree from Swami Vivekanand University, Sagar, Madhya Pradesh in final examination held in the month of June, 2016 and he had acquired M. Pharm degree from Sarvepalli Radhakrishnan University, Bhopal in the examinations held in the month of February, 2021, for which the petitioner was entitled to minority scholarship for six years, and that no offence was committed is taken up. Normally, while deciding pre-arrest bail application, the Court is not required to make any comment on the merit of accusations or materials collected in course of merit as the Court is not considering the charges against an accused person. Nonetheless, it may be mentioned that in the FIR dated 13.08.2020, it has been alleged that a fake educational institution, namely, HAM-AK Rural College of Science and Management and HAM-AK Rural College of Management and Technology, Nagaon has been misappropriating crores of money by showing number of fake students yearly, and although there is no regular student, the self-styled principal Haidar Ali and Director Inamul Hasan of the said institution had taken recourse to forgery and showing number of students in paper had misappropriated post metric and post graduate scholarship money of the students. In this regard, the pleaded and admitted case of the petitioner is that he had acquired B. Pharm Degree from Swami Page No.# 5/8 Vivekanand University, Sagar, Madhya Pradesh in final examination held in June, 2016 and he had acquired M. Pharm Degree from Sarvepalli Radhakrishnan University, Bhopal in the examinations held in February, 2021. If that be so the petitioner cannot be a regular student of HAM-AK Rural College, Nagaon. The petitioner has not been able to show that he was a student of the said institution at Nagaon. Moreover, the petitioner has not been able to demonstrate from any material that it was permissible for him to obtain scholarship either from HAM-AK Rural College of Science and Management or from HAM-AK Rural College of Management and Technology, Nagaon while pursuing his studies at different Universities.
9. In the aforesaid context, it may be stated that the investigation carried out so far reveals that Swami Vivekanand University, Sagar, Madhya Pradesh and Sarvepalli Radhakrishnan University, Bhopal have disowned that the HAM-AK institutions at Nagaon was authorised by them to offer course. The petitioner has not been able to demonstrate that under the relevant Minority Scholarship scheme, it was permissible for the petitioner to be a student of different university and to pocket scholarship money in the manner he had managed to obtain it.
10. In the aforesaid context, the investigation carried out so far reveals that only 77 (seventy seven) applicants were found to be genuine and by 1730 (one thousand seven hundred thirty) fake students, a sum of more than Rs.4.00 Crore is found to have been siphoned off during 2016-17 to 2018- 19 by using fake accounts opened through various Customer Service Points by the help of forged documents. The case diary reveals the modus operandi which could be unearthed as on date, which the Court refrains to discuss, as it may Page No.# 6/8 jeopardize and/or be counter-productive to any further investigation.
11. The other submission of the learned counsel for the petitioner was that none of the educational certificates of the petitioner was found to be forged or false and therefore, because of perfunctory and biased investigation by the I.O., the petitioner cannot be deprived of his fundamental right under Article 21 of the Constitution of India to remain free from fetters by deprivation of personal liberty, is taken up. In this regard, it appears that in course of investigation, the copy of the degrees obtained by the petitioner is not found to be forged or fake. But that is not the entire issue. Amongst other angles, the investigating agency is also investigating whether any fake students of HAM-AK Rural College had withdrawn Minority Scholarship. Therefore, as the petitioner has not been able to demonstrate that he was an enrolled regular student of (i) HAM-AK Rural College of Science and Management, and (ii) HAM-AK Rural College of Management and Technology, Nagaon, the Court finds that the case diary contains sufficient incriminating materials against the petitioner.
12. The other submission was that no one has complained about misappropriation of money. It was also submitted that as the informant was not the aggrieved person, he had no locus standi to lodge an FIR and in this regard, reliance is placed on the order dated 20.10.2020 passed by this Court in B.A. No. 1946/2020.
13. In the context of above submission, it is seen that the minority scholarship was out of public money belonging to the Country. The learned counsel for the petitioner has not been able to show any statute law or any case law where any superior court in the Country has determined that a citizen of the Country cannot put into motion an investigation relating to misuse, mis-
Page No.# 7/8 utilization and/or siphoning of any public money unless he is personally harmed.
14. It would now be appropriate to deal with the plea of "principle of parity" in the matter of grant of bail, raised by the learned counsel for the petitioner. It may be mentioned that the Supreme Court of India, in the case of Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230 , had held that the High Court while granting bail must focus on the role of the accused in deciding the aspect of parity. It was observed as under:-
"26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12- 2020, the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-
15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance.
The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."
15. The said view was again approved by the Supreme Court of India in the case of Mahadev Meena v. Praveen Rathore & Anr., (2021) 0 Supreme(SC) 518: 2021 SCC OnLine 804. Therefore, notwithstanding that other co-accused were granted pre-arrest bail, but the petitioner herein stands in a different footing as the materials collected in course of investigation discloses sufficient materials against the petitioner, for which, in the opinion of the Court, this is not a fit case for grant of pre-arrest bail to the petitioner.
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16. Moreover, the second bail application is maintainable as the petitioner had failed to demonstrate any change in circumstances after the previous prayer for pre-arrest bail was rejected.
17. Therefore, in light of the discussions above, the Court is of the considered opinion that in the interest of proper investigation of the case, this is not a fit case to grant pre-arrest bail to the petitioner. Hence, this second petition for pre-arrest bail under section 438 Cr.P.C. stands dismissed.
18. The case diary is returned.
19. Before parting with the records it is clarified that none of the observations made herein is intended to be a finding of the Court on merit. Therefore, in course of trial, if there be any, none of the sides would be prejudiced with observations contained in this order.
JUDGE Comparing Assistant