Gauhati High Court
Page No.# 1/ vs The State Of Assam on 6 December, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/11
GAHC010216772022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/3150/2022
AZGAR AHMED AND ANR.
S/O- ALIMATDIN AHMED, R/O- JAYANTIPUR, P.S. KALIABOR, DIST.-
NAGAON, ASSAM
2: REKIBUDDIN AHMED
S/O- MD. ROUFUR ALI
R/O- JAYANTIPUR
P.S. KALIABOR
DIST.- NAGAON
ASSA
VERSUS
THE STATE OF ASSAM
REP. BY THE P.P., ASSAM
Advocate for the Petitioner : MR D R SAIKIA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
06.12.2022 Heard Mr. D.R. Saikia, learned counsel for the petitioners and Mr. B. Sarma, learned Additional Public Prosecutor for the respondent State of Assam.
Page No.# 2/11
2. By this application under Section 438, Code of Criminal Procedure, 1973 [CrPC], the petitioners viz. 1) Azgar Ahmed, and 2) Rekibuddin Ahmed have approached this Court seeking the benefit of pre-arrest bail, apprehending their arrest, in connection with CID Police Station Case no. 5/2022, registered under Sections 120B/420/468/471, Indian Penal Code [IPC] with Section 467, IPC added later on.
3. Mr. Saikia, learned counsel for the petitioners has submitted that the two petitioners were the candidates in the recruitment process undertaken for filing up the posts of both Constable [UB] and Constable [AB] and they had submitted one computer efficiency certificate each with their on-line applications. After results of Physical Standards Test [PST] & Physical Efficiency Test [PET] were declared, the petitioners were asked to appear for document verification. In support of their candidatures, the two petitioners submitted a computer efficiency certificate from an institute, the Generation Awakens under Nava Bharat Computer Sakcharta Abhiyan, located at Jakhalabandha. As per the said certificates, the petitioner no. 1, Azgar Ahmed had completed the 1 [one]-year Diploma in Computer Science in the year 2012 during the sessions from 04.07.2012 to 09.08.2013; and the petitioner no. 2, Rekibuddin Ahmed, had completed the 1 [one]-year Diploma in Computer Science in the year 2017 during the sessions from 01.05.2017 to 30.05.2018.
3.1. Mr. Saikia has submitted that the two petitioners received notices under Section 41A, CrPC on two occasions on 14.05.2022 and 17.05.2022 and in compliance of the said notices, the petitioners appeared before the Investigating Authority and gave their versions and thereafter also, the petitioners appeared before the Investigating Authority for the third occasion on 17.10.2022 having received a message to appear so.
4. While opposing the bail application of the petitioner, Mr. Sarma, learned Additional Public Prosecutor who has received the case diary, has submitted the petitioners appeared before the Investigating Agency at the stage when the investigation was at the early stage and relevant materials were yet to be collected particularly, the Forensic Science Laboratory [FSL] Report. As per the FSL Report, the signatures are found scanned. It is also revealed that the signatures are superimposed among themselves indicating thereby that they are Page No.# 3/11 forged signatures and are produced from the same source as of the original signatures. During the field verification, it is found that the institute, the Generation Awakens got closed from the year 2019 and as such, a serious doubt about proper existence of the institute and/or the candidate undergoing such course, as indicated in the certificate, and/or the capability of the institute to impart such course, as indicated in the certificate, has arisen. During the course of investigation when the Branch In-Charge and Head Office In-Charge of the institute were examined, they had denied about issuance of such certificate to the petitioners at any point of time.
4.1. Mr. Sarma, learned Additional Public Prosecutor has further submitted that as in the process of the issuance of the alleged fake computer efficiency certificates many persons are found to have been involved, the bail application may not be considered at this stage. It is the submission of Mr. Sarma, learned Additional Public Prosecutor that the use of fake computer efficiency certificate by those candidates was an attempt to gain wrongful advantage in the recruitment process where large number of candidates had competed to get themselves selected on merits. Had the enquiry process been not initiated, the entire recruitment process would have got derailed.
5. In view of the above rival submissions by the parties, it appears necessary to look into the details about the recruitment process in question. By an Advertisement dated 25.04.2018 published by the State Level Police Recruitment Board [SLPRB], Assam, it was informed that recruitment rallies would be conducted in the districts of Assam for filling up of 1851 nos. of vacancies in the post of Constable of Unarmed Branch [UB] of District Executive Force [DEF] and 3643 nos. of vacancies in the post of Constable of Armed Branch [AB], that is, total 5494 nos. By a Notice/Addendum dated 19.12.2019 published by the SLPRB, Assam, it was informed that the State Government had given approval for recruitment of another 1168 posts of constables in Assam Police. With the publication of the Notice/Addendum dated 19.12.2019, the total vacancies for recruitment of constables became 6662. The Advertisement/Notice/Addendum disclosed organization-wise nos. of vacant posts sanctioned, district-wise distribution of vacant posts as well as police station-wise distribution of vacant posts, etc. Page No.# 4/11 5.1. As per the procedure of selection laid down in the Advertisement, the candidates whose applications, required to be submitted on-line, were found correct in all respects, would have to undergo Physical Standard Test [PST] and Physical Efficiency Test [PET]. In the PST stage, measurements of height, weight and chest of the candidates were to be done using latest technology followed by inspection by a Medical Officer for preliminary check up of different attributes. Once a candidate cleared the PST he would have to appear in the PET. The PET stage comprised of 40 marks and only those candidates who cleared PST would be required to undergo PET consisted of two events viz. [i] race, and [ii] long jump. After results of the PST and the PET were displayed, the candidates were required to appear in the written test which consisted of 100 multiple choice type questions carrying 50 marks, to be answered in an OMR answer sheet. One segment of the recruitment process was meant for 'Extra- Curricular Activities and Special Skills', which consisted of 10 marks. Thus, the final results of the recruitment process were to be based on the marks obtained in the three stages as follows : [i] PET = 40 marks; [ii] Written Test = 50 marks; and [iii] Extra-Curricular Activities and Special Skills = 10 marks, that is, 100 marks. The select list was to be prepared for each category, UR/SC/ST[P]/ST[H] based on the total marks obtained by the candidate in [i] PET, [ii] written test, and [iii] Extra-Curricular Activities and Special Skills.
5.2. As per the instructions contained in the Advertisement, candidates should bring a set of photo copies of documents against which he / she had claimed marks against the segments, 'Extra-Curricular Activities and Special Skills'. The Chairman or the Member of the SLPRB, Assam was required to put signature on both the sets of copies of those candidates who cleared PET and one set was to be retained by the DLSC and another set was to be taken by the candidate so that no conflict takes place in future.
5.3. The break-up of 10 marks allotted for the segment, 'Extra-Curricular Activities and Special Skills' was as follows : -
Extra-Curricular Activities and Special Skills : Max marks 10.
[A] Educational Qualification. Marks will be allotted based on results of Higher Secondary & Matriculation Examination for UB constables and Armed Branch respectively as under :
Max marks 5 Page No.# 5/11 UB Constables. Marks will be AB Constables. Marks will based on the results of Higher be based on the results of Secondary Exam. HSLC Exam.
i 45 - 59.99% 2 Marks 45 - 59.99% 2 Marks
ii 60 - 74.99% 3 Marks 60 - 74.99% 3 Marks
iii 75% and above 5 Marks 75% and above 5 Marks
[B] NATIONAL CADET CORPS [NCC] Max Marks - 03 [three]
[i] NCC 'C' Certificate - 03 [three] marks
[ii] NCC 'B' Certificate - 02 [two] marks
[iii] NCC 'A' Certificate - 01 [one] mark
[C] PROFECIENCY IN COMPUTERS Max Marks - 05 [five]
[i] Master of Computer Application [MCA] - 05 [five] marks
[ii] Bachelor of Computer Application [BCA] - 04 [four] marks
[iii] 2 [two] years Diploma from any Govt. / UGC recognized /
Accredited Universities/Institutions - 03 [three] marks
[iv] 1 [one] year Diploma from any Govt./UGC recognized/ Accredited
Universities/Institutions - 02 [two] marks
[v] Minimum 6 [six] months course in Computers from any Govt. Registered /UGC recognized /Accredited Universities/Institutions
- 01 [one] mark [D] Diploma / Certificate course from ITI/Polytechnic or other recognized / accredited Technical Institute : Max 3 Marks [a] Duration of course 2 years or more - 3 marks [b] Duration 1 year - 2 marks [c] Duration 3 to 6 months - 1 mark No marks will be awarded if the duration is less than 12 weeks. [The following trades are excluded : Hair dressing, Skin care, Embroidery, Dress making, Weaving, Needlework, Travel & Tour].
Page No.# 6/11 5.4. It is that part [C] 'Proficiency in Computers' in 'Extra-Curricular Activities and Special Skills' segment in the recruitment process where the maximum marks allotted was 05 [five], illegalities/irregularities were alleged to have been occurred.
5.5. The SLPRB, Assam in respect of the afore-mentioned recruitment process had constituted a Committee under the Chairmanship of the Special DGP[T&AP], Assam with three other members to randomly verify the computer proficiency certificates submitted by the candidates during submission of on-line applications and at the time of appearing in PST and PET in connection with the recruitment process. The Committee with the assistance of the Superintendents of Police of the districts, verified the genuineness of the computer proficiency certificates submitted by the candidates and submitted an Enquiry Report.
Accordingly, the Special DGP[T&AP], Assam and Member, SLPRB, Assam forwarded the Enquiry Report, prepared by the Committee, to the Director General of Police -cum-
Chairman SLPRB, Assam by a Communication bearing Memo no. TAP/C/SLPRB/Constable/2020/Pt-I/179 dated 11.05.2022. It was mentioned in the
Communication dated 11.05.2022 that as per the Enquiry Report, 414 nos. of candidates submitted fake computer efficiency certificates and therefore, they had been declared disqualified. The details of those 414 nos. of candidates were enclosed therewith by marking it as Annexure-A to the Communication dated 11.05.2022. Upon receipt of the Communication dated 11.05.2022, the Nodal Officer, SLPRB, Assam forwarded the said Communication dated 11.05.2022 to the Additional Director General of Police, CID, Assam vide a Letter dated 14.05.2022 with the request to register a case and to investigate the same. On receipt of the Letter dated 14.05.2022, the CID Police Station Case no. 05/2022 under Sections 120B/420/467/471, Indian Penal Code [IPC] came to be registered on 14.05.2022. It is stated that Section 467, IPC has been added later on.
5.6. While lodging the FIR, it has been mentioned that the unfair and illegal means adopted by the candidates, 414 in nos., required a thorough follow up action as they had been found involved in criminal conspiracy, forgery and cheating.
6. It is trite to say that ordinarily, arrest is a part of the process of investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant materials. The matter of bail or Page No.# 7/11 pre-arrest bail is to strike a balance between the individual's right to safeguard his personal liberty on one hand and the societal interest serving larger public interests on the other hand. It is usually viewed that information can be elicited from an accused person in a better manner when he is in custody and, thus, custodial interrogation is qualitatively more elicitation-oriented. A right is available to the Investigating Agency to interrogate an accused as to the materials so far collected and to collect more information which may lead to recovery of relevant information.
7. The Hon'ble Supreme Court of India in Adri Dharan Das v. State of W.B., reported in [2005] 4 SCC 303, has observed that the basic purpose of interrogation is to question the accused in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality, etc. For these or other reasons, the arrest may become inevitable part of the process of investigation.
8. The Hon'ble Supreme Court of India in Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, reported in [2011] 1 SCC 694, has mentioned about the factors and parameters to be taken into while considering an application for pre-arrest bail under Section 438, CrPC in the following manner :-
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail :
[i] The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; [ii] The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
[iii] The possibility of the applicant to flee from justice; [iv] The possibility of the accused's likelihood to repeat similar or other offences; [v] Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
[vi] Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
[vii] The courts must evaluate the entire available material against the accused Page No.# 8/11 very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
[viii] While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; [ix] The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
[x] Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record."
9. Having regard to the nature of accusations raised against the accused persons suspected to have obtained/procured fake computer efficiency certificates, the task before the Investigating Agency in the case in hand is to collect cogent and reliable materials regarding genuineness or otherwise of the computer efficiency certificates, submitted or procured by the candidates. It is true that the recruitment process carried by the SLPRB, Assam was a huge one whereby the process was initiated for filling up more than 6000 posts of constables. The case of the Investigating Agency is that the certificates submitted by the candidates are either from an unknown institute or from a bogus institute or from an institute which is not authorized to issue such certificate or from a institute which does not have any existence or the certificate is a forged one, etc. The Investigating Agency is required to find out about genuineness or otherwise of the certificates submitted by those 414 nos. of candidates. Thus, the entire issue here hinges upon the nature of materials collected by the Investigating Agency about the bogusness or correctness of the computer efficiency certificates. The allegedly fake Computer Efficiency Certificates are already in custody and possession of the recruitment agency, SLPRB, Assam. It is on the status and credentials of Page No.# 9/11 the institutes/authorities wherefrom the allegedly fake computer efficiency certificates were shown to have been issued/obtained the entire case of Investigating Agency is dependent. The institutes/authorities are external ones and their status and credentials can be unearthed by visiting these institutes/authorities. Based on the finding of their status and credentials, the culpability of the participating candidates can be found out. In case of the institutes' non- existence, dubious/sham existence, etc. the onus would fall upon the candidates to rebut the same in the course of trial in future. It appears that the validity about such institutes' recognition/accreditation, etc. can be found by making inspection and by other means. The prime reason for initiating the investigation is for the reason that when a random enquiry initially and thereafter, a detail enquiry were carried out, a number of candidates were found to have submitted fake computer efficiency certificate in order to gain a part of 5 [five] marks allotted under part [C] 'Proficiency in Computers' in 'Extra-Curricular Activities and Special Skills' segment of the recruitment process. Thus, the direction in which the Investigating Agency has to take its investigation forward could be said as clear and definite and it is not a case that the investigation is to be led without any particular leads or in a direction with dead end.
10. The learned counsel for the petitioners has urged that the computer efficiency certificates in question here cannot be termed as a valuable security in order to attract to bring the case within the ambit and purview of the offence under Section 467, IPC. He has referred to Section 30, IPC which has defined 'valuable security'. As per Section 30, IPC, 'valuable security' denotes a document which is, or purports to be, a document where a legal right is created, extended, transferred, restricted, extinguished or released, or where by any person acknowledges that he lies under legal liability, or has not a certain legal right. In Shriniwas Pandit Dharmadhikari vs. State of Maharashtra, reported in [1980] 4 SCC 551, the Hon'ble Supreme Court has held that a certificate forged to get admission in college cannot be termed as 'valuable security' within the meaning of Section 30, IPC and Section 467, IPC. The offence under Section 467, IPC is with regard to forgery of valuable security, will, etc. and the same is punishable within imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to be fine. On the afore-mentioned premises, the learned counsel for the petitioners has submitted that Page No.# 10/11 save and except the offence under Section 467, IPC, none of the other offences, that is, Section 420, IPC or Section 468, IPC or Section 471, IPC, involved in the case, is punishable with imprisonment of more than seven years. In such situation, the directives laid down by the Hon'ble Supreme Court in para 11 and para 12 in the case of Arnesh Kumar vs. State of Bihar and another, reported in [2014] 8 SCC 273, are applicable. In the backdrop of the facts and circumstances obtaining in the case in hand, the above submissions appear to have some force. Since the instant application is an application for bail, the above aspects are not adverted to in detail. Be that as it may.
11. Having regard to the facts and circumstances obtaining in the case of the petitioners herein, it is noticed that the petitioners already joined the investigation by appearing before the Investigating Authority in response to notices under Section 41A, CrPC on a number of occasions and submitted their side of the versions in relation to the computer efficiency certificate submitted by them in support of their candidatures.
10. Thus, taking the above aspects into consideration, this Court is of the considered view that custodial interrogation of the petitioners is not necessary for the purpose of carrying out further investigation of the case and their release on pre-arrest bail, at this stage of investigation, is unlikely to bring any adverse effect in the further investigation of the case, provided they extend their assistance and co-operation in the further investigation of the case.
12. Accordingly, it is provided that in the event of arrest of the petitioners viz. Azgar Ahmed and Rekibuddin Ahmed in connection with CID Police Station Case no. 5/2022 they shall be released on bail on furnishing a bail bond of Rs. 50,000/- each with one local surety each of the like amount, to the satisfaction of the arresting authority, subject to the following conditions that :-
[i] the petitioners shall appear before the Investigating Officer [I.O.] of the case within 10 [ten] days from today and shall cooperate with the investigation and shall thereafter, make themselves available as and when their presence are required by the I.O. in the investigation of the case; [ii] the petitioners shall not, directly or indirectly, make any inducement, threat or Page No.# 11/11 promise to any witness acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any police officer; [iv] the petitioners shall maintain law and order and they shall not commit an offence similar to the offence of which they are accused, or of the commission of which they are suspected; and [v] the petitioners shall regularly remain present during the trial and co-operate the Court to complete the trial for the above offences, if charge sheeted in the case.
13. If breach of any of the above conditions is committed, the order of pre-arrest bail would be cancelled. It would be open to the Investigating Officer to file an application for remand, and the concerned Magistrate would decide it on merits, without influenced by the grant of pre-arrest bail by this order.
14. The application stands disposed of in the aforesaid terms.
JUDGE Comparing Assistant