Gauhati High Court
Bail Appln./2091/2018 on 17 December, 2018
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/8
GAHC010206182018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Bail Application 2091/2018
PRESENT
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER(CAV)
Date: 17.12.18 This petition is filed under Section 439 of the CrPC for bail by accused petitioner Rakesh Paul in connection with Bhangagarh PS case 159/2017 u/s 120(B)/420/468/ of the IPC read with Section 7/13(1)(a) (d)(iii)/(2) of the Prevention of Corruption Act.
(2) It may be mentioned that while accused petitioner was working as the Chairman of the Assam Public Service Commission(APSC), he was arrested in connection with Dibrugarh PS case 936/2016 for the alleged taking bribes from various prospective candidates for giving appointments in various posts of civil services in the State of Assam, the examinations of which were conducted by the APSC. Subsequently the present case was filed by one Vedanta Vikash Das with similar allegation that the accused along with associate Musaraf Hussain demanded Rs 15 lakh as bribe to recruit him to the post of Agriculture Development Officer conducted by APSC for which he appeared. Although he paid Rs 50,000 to the accused as advance, he was not selected to the post as assured. On the basis of the Page No.# 2/8 said FIR, the accused was shown to be arrested in the present case on 17.8.2018. (3) Heard Mr Z Kamar, learned senior counsel for petitioner and Mr PP Baruah, learned Public Prosecutor of Assam.
(4) The present bail petition is a successive one before this court(the previous BA 1528/2017 was rejected on 14.11.2017).
(5) His previous bail petition was rejected considering the serious nature of accusation against him and taking into account the apparent complicity in the racket of collection of money for appointment in government jobs. While disposing the said bail petition this court directed the investigating officer to complete the investigation and to file supplementary charge sheet as early as possible within a period of three months from the date of the order, however with further observation that for better interest of the investigation the IO may make prayer before the court concerned to submit supplementary charge sheet for justified reasons and the learned trial court will be at liberty to consider the same and the accused can renew his bail prayer after filing of such charge sheet. This observation was made in the interest of investigation so that the IO may collect all necessary oral and documentary evidence in view of the complex nature of the offence. (6) The said order dated 14.11.2017 was not interfered by the Hon'ble Supreme Court in SLP(crl.) no.991070 by order dated 18.1.2018. Record reveals that subsequent to the order of this court the IO filed two supplementary chargesheets with the permission of the court. The bail prayer made by the accused before the learned Special Judge, Assam was rejected by order dated 29.8.2018. Hence this petition.
Page No.# 3/8 (7) Primarily on the ground of length of detention and that charge sheet is already filed against the accused and trial has not commenced yet the bail is sought. In addition, similar privilege of bail that is granted to other set of accused in the connected case(DBR PS case 936/2016)is prayed.
(8) Learned senior counsel for petitioner Mr Z Kamar, referring to the observations made by this court in the order dated 14.11.2017, contends that in spite of the observations of this court the IO has not yet concluded the investigation and several supplementary charge sheets have been filed against other accused persons but not against the present accused. Similarly it is also submitted that this court considering the length of their detention had granted bail to other set of accused persons by order dated 4.10.2018 in the connected DBR PS case 936/2016 in BA 1755/2018-batch and on the same ground the present accused may also granted bail.
(9) Relying on the decisions of the Hon'ble Supreme Court in AIR 1999 SC 1533, Sunil Kumar Sinha vs. State of Bihar; 2000 CrLJ 2786, Mahesh Kumar Bhawsinghkha vs. State of Delhi; 2000 CrLJ 2774, Vivek Kumar vs. State of UP; AIR 2012 SC 2338, Ram Choubey vs. State of Bihar and another; Sanjay Chandra vs. CBI, 2012 (1) SCC 40; 2012 CrLJ 1664, Dipak Subhashchandra Mehta vs. CBI and another; and 2017 CrLJ 2234, Hussain and another v. Union of India; it is contended that in view of the length of detention the accused should be allowed to go on bail as trial is not yet commenced and speedy trial is the right of the accused and its violation will offend Article 21 of the Constitution. Further submission of Mr Kamar is that the offence is not a heinous one and as the accused is already Page No.# 4/8 suspended from service, there is no scope of hampering the investigation or tampering the witnesses by him.
(10) Learned Public Prosecutor Mr PP Baruah, however, opposed the contention of learned senior counsel for petitioner saying that the length of detention is not the criteria in such serious socio-economic offence having a serious impact in the society. Further it is contended that being a successive bail application the petitioner has failed to show any change in circumstances to get the privilege of bail. (11) In support of his contention reliance is placed on the decisions of the Hon'ble Supreme Court in (2004) 7 SCC 528, Kalyan Chandra Sarkar vs. Rajesh Ranjan, 2013 (7) SCC 466; Nimmagadda Prasad vs. CBI; (2017) 13 SCC 751, State of Bihar and another vs. Amit Kukmar;
(12) Attention is drawn to the observations of the Hon'ble Supreme Court while considering the bail relating to socio-economic offences. In Kalyan Chandra(supra) para 12, it is held that in regard to cases where earlier bail applications were rejected there is further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons while in spite of earlier rejection the subsequent application for bail should be granted. In such cases the court has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in earlier applications.
(13) In Nimmagadda Prasad(supra) it is held that apart from other relevant grounds and considerations for granting bail one of the grounds is larger interest of Page No.# 5/8 public/State and other similar considerations. It is held that economic offence constitutes a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
(14) In Amit Kumar(supra) which is known as 'Bihar Topper Scam", where the accused Amit Kumar being principal of the college of Vishnu Rai College involved in tampering with the answer sheets by illegal means and interfering the examination system has illegally selected unsuccessful candidates of poor intellectual capacity and placed them in the merit list of the intermediate examination in the State of Bihar conducted by Bihar Intermediate Educational Council. The bail granted to the accused by the High Court on the ground of length of detention was cancelled by the Apex Court with the observation that when the seriousness of offence is such nature the mere fact that the accused was in jail for however long time should not be the concern of the court and granting bail in such case has the effect of undermining the trust of people in the integrity of the education system. Persuaded by the facts that the accused was the kingpin of the scam and was alleged to be involved in tampering with answer scripts by illegal means, his bail granted earlier was cancelled. The case of Sanjay Chandra is stated to be distinguishable from the said case as the charges in the case of Sanjay Chandra carried a maximum punishment for 7 years, whereas in the case of Amit Kumar, the punishment is on higher side. Para 13 of the judgment is quoted below:
Page No.# 6/8 "13. We are also conscious that if undeserving candidates were allowed to top exams by corrupt means, not only will the society be deprived of deserving candidates but it will be unfair for those students who have honestly worked hard for one whole year and ultimately disentitled to good rank by the fraudulent practices prevalent in those examinations. It is settled that socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. Usually, socio-
economic offences has deep-rooted conspiracies affecting the moral fiber of the society and causing irreparable harm need to be considered seriously." (15) Due consideration is given to the submissions of learned counsel for both parties and the legal pronouncements referred to above.
(16) The present bail application being a successive one its status report along with case diary was called for which are produced before this court and I have gone through the same carefully.
(17) In the status report, the IO has mentioned that as many as seven accused persons were arrested in connection with the present case and further investigation u/s 173(8) of the CrPC is still continuing to ascertain and adduce more evidence against the arrested accused persons including the present accused against whom sufficient evidence has emerged in such further investigation. The accused is stated to be very intelligent and desperate in nature who himself entered into conspiracy to collect bribes from candidates through middlemen for selecting them to the posts of Agriculture Development Officer and by his conduct he lowered the reputation of APSC as well as demoralized the meritorious candidates of the State. Accordingly the IO has raised objection to granting bail that in view of the complex modus operandi.
Page No.# 7/8 The accused is required to be kept in judicial custody to find out the money exchanging hands as well as to identify the benami properties of the accused for which further investigation is still going on in the larger interest of the State to bring out all the factual matters by thorough investigation.
(18) On perusal of the entire matters it appears that charge sheet has been submitted against the accused on 9.10.2017 and subsequent thereto two supplementary charge sheets were filed against other accused persons who were members of the Board but in these supplementary charge sheets also the complicity of the accused is indicated that he along with other members of the board has committed all the anomalies in manipulating the answer scripts by tampering the same which has been confirmed by the expert opinion that is received subsequently. In the supplementary charge sheet submitted against one Basanta Doley it is stated that the accused Basanta Doley along with the present accused and the accused Musaraf Hussain contacted the candidates of ADO examination to provide job by illegal way and it is revealed that further investigation needs to be carried out to gather more evidence. The case diary reveals that in further investigation other members of APSC have also indicated serious irregularity and illegality indulged in by accused Rakesh Paul in conducting the said examination by flouting the rules and regulations ignoring the other members of APSC.
(19) Being the head of the institution he had undergone all possible bad practices to provide job against collection of money from the prospective candidates for different posts under APSC and employed various middlemen to find out the candidates who are willing to give bribe by fixing the rate of each post and Page No.# 8/8 candidates who offered money were provided question and answer keys. He was closely associated with the members of the board in the whole process so that one of them may remain on the interview board of the candidates whom they wanted to select by taking bribes.
(20) Even after the filing of the charge sheet astounding evidence has cropped up against the serious conduct of the accused which is enough to reveal the unhealthy, illegal conduct carried by the head of an institution like APSC to malign the institution which was entrusted with the selection of public servants who will decide the affairs of the State. A very panic picture is writ large in this case. The accused being the Chairman is the kingpin of the entire matter and his status cannot be equated with the other accused persons(the selected candidates) to give the same privilege as sought. In the given background of the case and the modus operandi of the offence the same cannot be treated unlike any other criminal case to gauge the length of detention. The evidence in the present case is not readily available as the persons who paid bribes and were associated with such matter did not divulge such matter earlier but came up only after filing of FIRs by the unsuccessful candidates. In the larger interest of the State and to unearth the details behind the case as stated by IO in the status report, the detention of the accused cannot be considered to grant bail.
(21) In the result the bail prayer is rejected. Return the case diary.
JUDGE Comparing Assistant