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2015 DIGILAW 440 (JK)

Bashir Ahmad Dar v. State of J&K

2015-08-25

BANSI LAL BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J. 1. Aggrieved of rejection of his bail plea by learned Special Judge, Anti-corruption, Jammu, in terms of order dated 29th July, 2015, the petitioner-accused, Bashir Ahmad Dar has invoked the inherent jurisdiction of this Court under Section 498 of the Code of Criminal Procedure (for short Cr.P.C.) for enlargement of bail. FIR No. 36/2013 for the offences under sections 420, 468, 471, 120-B RPC read with Section 5(2) Prevention of Corruption Act, Svt. 2006, came to be registered with Police Station, Crime Branch, Jammu, on the basis of enquiry report of the Joint Secretary of Board of School Education (for brevity 'BOSE'). According to the enquiry report, a huge scandal involving corruption of a larger magnitude surfaced in Elementary Teachers Training Courses conducted by ETT Institutes in the State. It was revealed that hefty amounts ranging between Rs. 45,000/- to 80,000/- per student per year were charged for two years ETT Course from gullible students who were lured by these Institutes for providing the degrees/certificates. Allegedly these Institutes lacked the basic infrastructure and did not satisfy the criteria prescribed by National Council for Teachers Education (NCTE). Some officers of the BOSE were alleged to have granted affiliations/permissions to these Institutes in gross violation of norms by abusing their official position and conferring undue pecuniary advantage upon beneficiaries who were none other than the owners of these Institutes. Allegedly permissions were given for setting up of ETT Institutes in Jammu & Kathua Districts during the year 2002-2003 without framing rules/regulations. Petitioner in his capacity as the then Director, Academics of BOSE is alleged to have issued permission letters revealing his complicity in the aforesaid alleged offences. Reportedly, the petitioner was arrested on 23rd July, 2015. 2. Upon consideration of the bail plea of petitioner in the context of report submitted by the Crime Branch, Jammu, objections filed by prosecution and perusal of case diary files, the learned Special Judge, Anticorruption, Jammu, was of the view that allegations against the petitioner were serious in nature and the material assembled during investigation revealed that affiliation to most of 22 identified Institutes has been granted under signatures of petitioner in his capacity as Director, Academics, BOSE. It also noticed that the Institutes had admitted students beyond the permitted intake capacity. It also noticed that many students had managed to get degrees without even actually attending the classes. It also noticed that the Institutes had admitted students beyond the permitted intake capacity. It also noticed that many students had managed to get degrees without even actually attending the classes. This, according to learned Special Judge, Anticorruption, Jammu, happened, as such permissions were granted without prior inspection. Some of the Institutes were also found to be running without proper infrastructure. Learned Special Judge, Anticorruption, Jammu, was of the view that the material gathered during the investigation not only suggested involvement of owners of such ETT Institutes but also pointed towards connivance of officers of the BOSE. Being of the view that the material assembled during the course of investigation appeared to be supporting these allegations and that the investigation was at nascent stage, learned Special Judge, found no case made out for indulgence. The bail plea was accordingly rejected. 3. It would be appropriate to refer to the plea of the petitioner for release on bail on the ground that he is a 'sick and infirm person'. The learned Special Judge, Anticorruption, Jammu, though of the view that the petitioner has history of heart ailment and diabetes, observed that the material on record did not suggest that such ailment posed any imminent danger to his life. In the opinion of learned Special Judge, the ailment of the petitioner was not of such serious degree so as to warrant grant of bail. 4. Petitioner, claiming to be a senior citizen of 71 years of age having undergone heart surgery in the year 2013, and a diabetic on insulin twice a day seeks bail on the ground of being innocent. It is contended on his behalf, that the petitioner in his capacity as Director Academics, BOSE, had absolutely nothing to do with setting up of ETT Institutes and has never allowed anybody to set up such Institute. It is further contended that it was not the petitioner but the Chairman, BOSE, who allowed the Institutes under Section 13(iv) of the Jammu and Kashmir Board of School Education Act of 1975, to run ETT course. It is further contended that the petitioner had no authority to contest the powers of the Chairman, who, however, satisfied himself that the Institutes already running B.Ed. course had necessary infrastructure in place to run ETT Course. It is further contended that the petitioner had no authority to contest the powers of the Chairman, who, however, satisfied himself that the Institutes already running B.Ed. course had necessary infrastructure in place to run ETT Course. It is further contended that it was not the petitioner but the Education Department of the State which allowed ETT Course to be run for valid reasons. It is further contended that during his tenure as Director Academic, the petitioner updated the curricula for all the classes and made the same comparable to standards obtaining at National Level. Reference is made to curricula published by BOSE in the year 2002 in this regard. It is further contended that a few B.Ed. Colleges were allowed to run 2nd year ETT course in December, 2003 and the number of students admitted to such course was very small when the petitioner demitted office as Secretary, BOSE, in August, 2004. Petitioner further submitted that he did not connive with any institution for enrolment of students without having the proper infrastructure. It is contended that the malady started after 2004 when BOSE centralized admission of the students. It is further submitted that the ETT course was designed following recommendations made by various Commissions and Committees on teacher education, particularly National Council for Teacher Education. The syllabus effective from 2003 was published by Board in the year 2002, which regulated the admission and laid down the curriculum. Thus, it is submitted that the petitioner is not connected with the crime alleged against him. 5. Mr. B.A. Dar, learned Additional Advocate General, contested the motion for bail on the ground that the scam involves officers and officials of the BOSE besides the owners of ETT Institutes granted permission in a clandestine manner without having the infrastructure in place. It is contended that the BOSE officers connived by granting permission without conducting inspection and a large number of gullible students were fleeced into paying hefty amounts and awarded degrees without attending classes. It is contended that the BOSE officials including the petitioner abused their official positions and indulged in corrupt practices deriving substantial monetary gains. It is submitted that public interest and gravity of offence does not warrant admission of the petitioner on bail. 6. I have given my thoughtful consideration to the submissions made at the Bar by learned counsel for the parties. It is submitted that public interest and gravity of offence does not warrant admission of the petitioner on bail. 6. I have given my thoughtful consideration to the submissions made at the Bar by learned counsel for the parties. Jurisdiction vested in this Court under section 498 of Code of Criminal Procedure (for short Cr.P.C.) is sparingly exercised and the Court generally takes into account the considerations regulating exercise of bail under section 497 Cr.P.C. Save, in exceptional circumstances, the High Court would be loathe in considering the grant of bail where there are reasonable grounds for believing that the accused is guilty of offence punishable with capital punishment or life sentence. Admittedly, in the instant case, offences alleged do not fall within the mischief of bar imposed under section 497 Cr.P.C. Thus, the embargo on powers of Court to grant bail in terms of section 497 Cr.P.C. is not attracted even if considerations under section 497 Cr.P.C. are read into section 498 Cr.P.C. Viewed thus, the case of the petitioner would not fall within the exceptional class of cases where the principle of "jail" and "not bail" would be attracted, unless gravity of offence and larger public interest so warrants. It is well settled that gravity of offence is not the only criterion on which the question of granting bail to the accused should be tested. The other tests laid down in a catena of rulings would be punishment which the alleged offence entails, the position and status of the accused with reference to the victim and the witnesses, likelihood of accused fleeing from justice, likelihood of accused repeating the commission of crime, apprehension of security of accused being imperiled by indulgence of victim in private retribution, apprehension of accused tampering with the evidence or hampering investigation and such like considerations. These are in addition to the nature and gravity of circumstances in which a crime is alleged to have been committed. These considerations regulate the exercise of power to grant bail in non bailable offences for ensuring a fair trial before a court of justice. On application of these considerations, it emerges that in the instant case the petitioner admittedly demitted office as Secretary of BOSE in the year 2004. He is leading a retired life for the last eleven years and has no access to official records. Thus, apprehension of tampering of evidence is ruled out. On application of these considerations, it emerges that in the instant case the petitioner admittedly demitted office as Secretary of BOSE in the year 2004. He is leading a retired life for the last eleven years and has no access to official records. Thus, apprehension of tampering of evidence is ruled out. Admittedly, the petitioner has been arrested on 23.07.2015. He has been subjected to custodial interrogation. Period of police remand is over and he is presently lodged in judicial custody. The material assembled during the investigation is not claimed to portray petitioner as having derived undue pecuniary advantage though he is alleged to have abused his official position in granting permission to the Institutes in starting ETT course, without infrastructure in place and sans inspection. It appears that the petitioner's role is limited to the formative years of 2003 and 2004, when permissions for starting ETT course were allegedly granted to private B.Ed. Colleges without conforming to the norms laid down for the same. The authorship of permissions granted to some Institutes is attributed to the petitioner who has come forward with the plea that such power vested only in Chairman, BOSE, and it was for the Chairman to satisfy himself in regard to infrastructure being in place before grant of permission in terms of the emergency powers under section 3(iv) of the Jammu and Kashmir Board of School Education Act of 1975. Whether grant of affiliation/permissions to different Institutes falls within the province of emergency powers is an aspect which needs to be probed so as to arrive at a definite conclusion as regards misuse of official position by the authorities of BOSE including the petitioner. However, it is not in controversy that the petitioner in his capacity as Director, Academics, or as Secretary of the BOSE, had no authority to exercise such emergency powers. Did he usurp the powers and authority of the Chairman and that too in respect of a subject which did not warrant invoking of "such powers, would be the subject of in-depth probe. However, same does not require further association of petitioner with the investigation. No recovery has reportedly been made from the petitioner and in absence of any allegation of pecuniary benefit having been conferred upon him, no such recovery would be expected. However, same does not require further association of petitioner with the investigation. No recovery has reportedly been made from the petitioner and in absence of any allegation of pecuniary benefit having been conferred upon him, no such recovery would be expected. Taking these aspects in view, I am of the considered opinion that a fair trial would not be jeopardized and investigation will not be hampered if the petitioner is admitted on bail. 7. Adverting to the petitioner's claim for enlargement of bail on the plea of his belonging to the category of 'sick and infirm' person, be it noticed that the learned Special Judge, Anticorruption, Jammu, too observed that the material on record suggested that the petitioner suffered from heart ailment and diabetes. However, the learned Judge was of the view that such ailment did not pose any imminent danger to his life. Considering the history of ailment of the petitioner, this Court by virtue of interim order dated 06.08.2015 directed the Crime Branch, Jammu, to get the petitioner examined by a Specialist doctor at Government Medical College, Jammu and submit the report. The medical report authored by Medical Officer, District Jail, Jammu, lays bare that the petitioner is a known case of Hypertension and Type-2 Diabetes Mellitus (on insulin) with Hypothyroidism. It is further reported that the petitioner suffered from Ischemic Heart Disease (IHD) in the past for which By-pass Surgery (CABG) was done in 2013. As per report, the petitioner is provided medicines prescribed by Government Medical College doctors. He is also taken to GMC, Jammu, for follow up and routine basis. 8. Infirmity may not necessarily be concomitant with old age. However, where a person like the petitioner aged about 71 years has a history of hypertension and type 2 Diabetes mellitus with Hypothyroidism necessitating administration of insulin, it cannot be said that the person is not infirm. A patient with ailments of the nature the petitioner is suffering from, would necessarily require family support besides regular medical attention, more particularly when insulin is to be administered twice a day as emanating; from the medical records. Given the nature of ailment and the regular treatment prescribed, the observation of learned Special Judge, Anticorruption, Jammu that the petitioner is not suffering from an ailment which would pose any imminent danger to his life, cannot be supported. Given the nature of ailment and the regular treatment prescribed, the observation of learned Special Judge, Anticorruption, Jammu that the petitioner is not suffering from an ailment which would pose any imminent danger to his life, cannot be supported. It can be said without any fear of contradiction that the case of the petitioner falls within the category of 'sick and infirm person' entitling him to claim bail on this ground alone. 9. On prima facie scrutiny of the material on record, I am of the view that in the backdrop of the facts and circumstances narrated hereinabove, a case for admission of petitioner on bail is made out. Accordingly, bail petition is allowed. The petitioner is ordered to be enlarged on bail for the offences reflected in paragraph 2 of this order on his executing a personal bond with two solvent sureties, in a sum of Rupees one lac each to the satisfaction of the Registrar Judicial of this Court subject to the following conditions:-- "a) That the petitioner shall not in any manner whatsoever try to influence the prosecution witnesses; b) The petitioner shall not leave the territorial jurisdiction of the State of J&K without seeking prior permission from the trial court; c) The petitioner shall attend investigation as and when required; d) The petitioner shall not engage himself in any criminal activity. e) The petitioner shall surrender his passport before the Registrar Judicial of this Court, if he possesses one." 10. Breach of either of these conditions by the petitioner shall warrant cancellation of bail. It is made clear that observations made hereinabove for disposal of the instant bail petition shall not be deemed to be an expression of opinion on the merits of the case and the trial court shall not be influenced by these observations while dealing with the matter at the charge/discharge or at the final stage. Disposed of alongwith Cr.M.P.