Gauhati High Court
Abdul Hamid vs The State Of Assam on 24 June, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/10
GAHC010055802021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/918/2021
ABDUL HAMID
S/O LATE BAHADUR ALI, R/O DAKAIDAL, P.S.-MORNAI, DIST-GOALPARA,
ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. U K BARMAN
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 24-06-2021 The Court proceedings have been conducted through remote video conferencing mode due to the prevailing situation in the State due to Covid-19 pandemic.
2. Heard Mr. D. Talukdar, learned counsel for the petitioner and Ms. B. Page No.# 2/10 Bhuyan, learned Additional Public Prosecutor for the respondent State of Assam.
3. By this application under Section 438, Code of Criminal Procedure, 1973 (CrPC), the petitioner viz. Abdul Hamid has approached this Court seeking the benefit of pre-arrest bail, apprehending their arrest, in connection with P.R.C. No. 365/2021 (arising out of CID Police Station Case No. 20/2020) registered for offences punishable under Sections 120(B)/406/409/419/420/468/471/109/34, Indian Penal Code read with Sections 66C/66D of the Information and Technology Act.
4. Mr. Talukdar has submitted that the petitioner is the Headmaster of Nabagathita Rakhyesini Middle English School which is located in Goalpara district. As per the FIR, the allegation is that applications of 300 nos. of students of the School were verified by the Headmaster of the School and the District Nodal Officer and out of those 300 nos. of applications, 275 nos. of applications for beneficiaries were processed for payment and an amount of Rs. 29,22,500/- was involved. He has further submitted that the petitioner as the Headmaster had found that 229 nos. of students applied for Scholarship online but he has received fund in respect of only 184 nos. of students. According to him, 91 (=275-184) nos. of students were fake and those entries were made by the middleman viz. Rabiul Islam. The petitioner has to give responsibility to said Rabiul Islam for depositing the beneficiary list to the District Nodal Officer because a large nos. of guardians of the proposed beneficiaries, in a meeting held 18.04.2021 (Annexure F), had resolved and decided that the applications should be forwarded through said Rabiul Islam. It was decided by the guardians that expenses for obtaining minority scholarships shall be made by the guardians themselves and the communications would be made through Rabiul Islam. It is further submitted by Mr. Talukdar that according to the petitioner, he Page No.# 3/10 had allowed processing of applications in respect of only 184 nos. of students who are genuine students of the School and vide the declaration, available at Annexure-I, about 33 nos. of guardians had stated that they had received the entire scholarship money. He has also referred to Annexure-H, whereby 184 nos. of students who had received the entire scholarship money of Rs. 10,700/- each, had acknowledged the receipts. It is further submitted by him that when the Investigating Authority had submitted the charge sheet in part on 03.02.2021, the name of the petitioner was not amongst the accused persons charge sheeted to stand the trial and thus, he was never suspected at the time of submission of the part charge sheet. On the basis of the above contentions, he has submitted that there is no requirement for any kind of custodial interrogation of the petitioner and he may be allowed the protection under Section 438, CrPC subject to imposition of any terms and conditions.
5. Ms. Bhuyan, learned Additional Public Prosecutor has submitted that she has received the concerned case diary. She has submitted, on the basis of the materials available in the case diary, that there were anomalies and irregularities in respect of processing of applications for minority scholarship also in respect of Nabagathita Rakhyesini Middle English School. It is one Rabiul Islam who was the mastermind in making entries in respect of a number of fictitious students of Nabagathita Rakhyesini Middle English School. Said Rabiul Islam had opened fake bank accounts for the students of the School in connivance with one Shukumuddin, the owner of the Customer Service Point (CSP) of the Bank of Baroda, Chhaygaon branch. The materials available in the case diary go clearly to indicate that the petitioner as the Headmaster of the School had shared respective Institute Nodal Officer's credentials, User IDs, passwords and OTP, etc. with the arrested accused persons. Apart from Rabiul Islam, his wife was Page No.# 4/10 also involved in the act. After complaints were made that, the beneficiaries were given lesser sums than the actual scholarship money, the accused person Rabiul Islam and others including the petitioner herein, had disbursed the actual scholarship money to the beneficiaries as entitled under the scheme. According to Ms. Bhuyan, the materials indicate that the payments were processed for 275 nos. of students but amounts were distributed only in respect of 184 nos. of students.
6. In order to appreciate the rival contentions advanced by the learned counsel for the parties, a reference to the contents of the First Information Report (FIR) lodged by the Director, Assam Minorities Development Board and State Nodal Officer, Pre-Matric Scholarship for minorities, Assam on 29.08.2020 is necessary. In the FIR, it is mentioned that the Pre-Matric Scholarships Scheme for minority communities is a Central Sector Scheme sponsored/implemented by the Ministry of Minority Affairs, Government of India annually. The students who secured 50% marks in the previous examination and whose parents'/guardians' annual income do not exceed Rs. 1,00,000/- are eligible to apply online under the scheme for classes from Class-I to Class-X. To improve transparency in the scheme the National Scholarship Portal (NSP) was launched to invite applications online and to transfer the sums in the respective bank account of the beneficiary students in the Direct Benefit Transfer (DBT) mode. As per the workflow of the system of online verification of the applications, the verification are done at two levels after the online applications are filled up by the applicants in the NSP portal, one at the institute/school level and the other at the district level through the designated District Nodal Officers (DNO) (i.e. Inspector of Schools or his authorized official/District Elementary Education Officer or his authorized official) approved by the Ministry of Minority Page No.# 5/10 Affairs. The institute is to be registered in the NSP portal and is to be provided the DISE code, institutional login credentials with User Id and secret passwords, approval of institute registration form. Verification of the bank account details linked with mobile numbers is a vital part of the verification process of a student's application. In order to process the payment, the list of beneficiaries submitted as hard copies with seal and signature of the head of the institutions with online details are to be verified thoroughly. During the process of implementation of the scheme, it has come to light that the Head Masters without the knowledge of computer applications used to take help of people with knowledge of computers for making entries of the credentials of the applicants. It was found that on most of the occasions, the assistance of the Customer Service Points (CSPs) providers who were engaged by banks to open bank accounts of beneficiaries of various government schemes, were seen to be taken by the Head Masters. It was found that the CSPs and middleman used to approach the Head Masters or vice-versa for opening of accounts of the students or for entries of data of the applicants for the scholarship schemes. It was further found that in most of the cases, the Head Masters and the CSP operators had taken resort to dishonest means to deprive the students from receiving the benefits of the scheme. In order to misappropriate a part of the scholarship amounts, dishonest teachers had opened bank accounts in absence of the guardians or the students in connivance with the CSP operators of the banks and the middleman. It was seen that the CSP operators used to purchase SIM cards with mobile handsets in bulk and used to link the same with the bank accounts so opened, for DBT as well as to apply for scholarships online. As the bank accounts had been fraudulently linked with the mobile numbers without the knowledge of the concerned students or guardians the OTPs were Page No.# 6/10 generated without the knowledge of the beneficiaries.
7. The FIR had amongst other, gone on to indicate the irregularities in disbursing scholarship amounts to the students of Nabagathita Rakhyesini Middle English School. In respect of the said school where the present petitioner is the Head Master, applications of 275 nos. of students for scholarships under the Pre-Matric Scholarships for minority community students were processed. As per the records of the NSP portal, 300 nos. of students were verified. A total amount of Rs. 29,22,500/- was involved in respect of the school. It was alleged that an amount of Rs. 200/- from each of the students was collected for making the online applications and opening of bank accounts. It was alleged that the present petitioner as the Head Master of the school and Nodal Officer had collected an amount of Rs. 200/- per guardian along with the guardians' Voter Ids and other documents and gave it to the middleman for getting the works done. When inquired initially, the petitioner stated that he applied for scholarships for 229 nos. of students but he had received funds for only 184 nos. of students. The FIR have mentioned that entries were made for 91 nos. of fictitious students for the said School which involved an amount of Rs. 9,73,700/-. One Rabiul Islam had gone from house to house of the students to hand over Rs. 3,000/- each in cash to each guardian stating that the said amount had been received instead of the full amount of Rs. 10,700/-. The Head Master i.e. the petitioner was found to have taken a stand that he tried to contact said Rabiul Islam but Rabiul Islam did not attend to his calls. The petitioner had stated that he gave the responsibility of depositing the list of beneficiaries to Rabiul Islam but he did not give him the details of the bank account numbers and mobile numbers of the beneficiaries. On checking the details in the NSP portal, it was revealed that the accounts were opened by Page No.# 7/10 Rabiul Islam outside the district i.e. Barpeta and Kamrup Rural and through online process, the payments were made to those accounts. An amount of Rs. 29,22,500/- meant for 275 nos. of student beneficiaries was withdrawn by said Rabiul Islam without knowledge of the student beneficiaries. It was alleged in the FIR the entire transactions were carried out by the Head Master of the School i.e. the petitioner, Rabiul Islam and the CSP operator in collusion with each other keeping the guardians or students of the School in dark by opening the bank accounts by themselves.
8. Based on the said FIR, the CID Police Station Case No. 20/2020 was registered on 28.08.2020 and investigation was initiated.
9. After carrying investigation to a substantial extent, a part-charge sheet being Charge Sheet No. 01/2021 came to be filed on 03.02.2021 against 32 nos. of accused persons. Accused no. 26 in the said charge sheet is Rabiul Islam. The prosecution has listed 220 nos. of persons as prosecution witnesses and a large nos. of documents for bringing home the charges against those accused persons. In so far as the Nabagathita Rakhyesini Middle English School is concerned, the materials indicated in the said charge sheet were in conformity with the allegations made in the FIR. Materials have been collected by the Investigating Authority which prima facie indicates that huge amounts of money under the Minority Scholarship Scheme were deposited in the personal accounts of Rabiul Islam and his accomplices. The part-charge sheet had also indicated that further investigation was being carried out in order to unearth the conspiracy and to collect more materials. The present petitioner was not named as an accused in the said part-charge sheet. In the context of the aforesaid FIR and the rival submissions made by the parties referred above, the materials in the case diary, collected during the course of investigation carried out so far, are Page No.# 8/10 perused. It is seen from the materials available in the case diary, the Investigating Agency has found the petitioner absconding. The materials go to indicate that the petitioner had himself collected the documents of the students of the School and handed them over to the other accused persons including Rabiul Islam. It was the petitioner who had provided the User Ids, Password and OTP pertaining to the School to Rabiul Islam for processing scholarship applications online in the NSP portal in the name of the students of the Schools along with a number of fake applications. After amounts of the scholarship scheme was credited in the bank accounts of the students, the petitioner in connivance with the prime accused and other accused persons who are also found absconding till date, illegally withdrew those amounts in cash. After withdrawing the entire scholarship money from the accounts of each of the students beneficiaries, the petitioner and other accused persons had paid Rs. 3000/- in cash to each of the beneficiaries. On receipt of the faulty amount of Rs. 3,000/-, the beneficiaries made complaints regarding non-receipt of the actual amount i.e. Rs. 10,700/-. Facing the heat, the petitioner and other accused persons were compelled to hand over the remaining amount to the beneficiaries, 184 in no.. But the materials in the case diary further indicate that payments for 275 nos. of student beneficiaries belonging to Nabagathita Rakhyesini Middle English School were processed as per the NSP record and the money trail in respect of the balance 91 nos. of beneficiaries which according to the Investigating Agency are fictitious, are yet to be unearthed and investigated. Because of the abscondance of the petitioner and non-submission of the relevant documents which, according to the Investigating Agency, are with the petitioner the investigation of the case has not progressed at a desired pace. The witnesses whose statements are found recorded in the case diary and who Page No.# 9/10 are associated officially with Nabagathita Rakhyesini Middle English School, have disclosed in their statements that they were provided with a list of beneficiaries along with a sum of Rs. 3000/- each against each of the beneficiaries, by the petitioner to distribute the said amount to the beneficiaries as per the list and accordingly, they had distributed the same. While so distributing, the beneficiaries made complaints and it was then the petitioner was compelled to pay the remaining amounts to those beneficiaries. Though the investigation is directed in respect to the affairs of Nabagathita Rakhyesini Middle English School and the anomalies/irregularities found as regards distribution of scholarship money meant for the students belonging to the weaker sections of the minority community the petitioner who himself is the Head Master of the said School is found not cooperating with the said investigation and rather, he has been found absconding. Effective interrogation of a suspected person by taking into custody, is much more advantageous to disinter useful information and to unearth materials which are being concealed.
10. It is well settled that the aspects to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail. It is no doubt true that while considering an application for bail the aspect of personal liberty of the accused is also to be considered. But at the same time, the interest of free and fair trial of the case, more particularly, when it pertains to Page No.# 10/10 an offence of heinous nature is also to be looked into. The discretion vested in the Court for grant of bail or otherwise has to be exercised in a judicious manner and not as a matter of course.
11. Having regard to the nature and gravity of the allegations; the fact that irregularities with regard to government scholarship money of a large amount meant for the weaker sections of the minority communities have been committed; and the role stated to have been played by the petitioner as a Head Master of Nabagathita Rakhyesini Middle English School in facilitating withdrawal of scholarship money in an illegal manner, this Court does not find the case to be a fit case to extend the privilege of pre-arrest bail under Section 438, CrPC to the petitioner. Consequently, this application being devoid of merit, stands rejected.
JUDGE Comparing Assistant