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2020 DIGILAW 187 (GAU)

Samedur Rahman v. State Of Assam

2020-02-12

MIR ALFAZ ALI

body2020
JUDGMENT 1. Sri Samedur Rahman, who has been in detention in connection with Bhangagarh P.S. Case No. 159/2017 registered under Section 120(B)/420/468 IPC R/W Section 7/13(1)(a)(d)(iii)(2) of the Prevention of Corruption Act prays for bail by this instant petition under Section 439 CrPC. 2. An FIR was lodged by one Bedanta Bikash Das on 17.08.2017 alleging therein, that he appeared in the competitive examination conducted by the Assam Public Service Commission (in short APSC) for the post of Agricultural Development Officer (ADO) in the year 2014. The Chairman of APSC, Sri Rakesh Paul and his associate one Mr. Musharaf Hussain demanded Rs. 15 lakhs from him as bribe to ensure the job. Accordingly, the informant paid Rs. 50,000/- to the Chairman of the APSC Sri Rakesh Paul at Satsang Vihar, Bhangagarh, Guwahati as advance, but he could not succeed in the examination as he failed to fulfill the demand made by Sri Rakesh Paul. Later on, he came to know from the information supplied by the APSC, on the basis of his application under the RTI Act that there was anomaly in the marks given to the candidates in the viva-voce test. In the two replies given by the APSC, different marks were shown against the same candidates. On the basis of the FIR lodged by said Sri Bedanta Bikash Das, police registered the case and started investigation and charge sheet was filed against the Chairman of the APSC Sri Rakesh Paul and another. However, having regard to the larger conspiracy involved in the matter, further investigation continued and several supplementary charge sheets have been filed against various accused. 3. The Petitioner Samedur Rahman, who has been a member of the Assam Public Service Commission (for short APSC) was arrested on 31.08.2018 and a supplementary charge sheet (second supplementary charge sheet) was filed against him on 26.10.2018 showing him as accused No. 4. 4. Learned Sr. Counsel Mr. A.M. Bora for the petitioner and Mr. M. Phukan, learned Addl. P.P. for the State were heard and the case diary produced has also been perused. 5. Learned Sr. Counsel, Mr. 4. Learned Sr. Counsel Mr. A.M. Bora for the petitioner and Mr. M. Phukan, learned Addl. P.P. for the State were heard and the case diary produced has also been perused. 5. Learned Sr. Counsel, Mr. A.M. Bora submitted that after submission of the second supplementary charge sheet against the present petitioner, several supplementary charge sheets have been filed and while submitting the 5 th supplementary charge sheet, the Investigating Officer sought for further 15 to 20 days time to complete the further investigation and to file some other additional documents. On the basis of such prayer, learned trial court by order dated 06.01.2020 granted time till 27.01.2020 to the Investigating Officer in order to complete the further investigation and to file the ultimate or last supplementary charge sheet. Referring to the order dated 06.01.2020 as well as the supplementary charge sheets submitted by the Investigating Officer, Mr. Bora contended, that all the necessary documents required to be submitted along with the charge sheet as per Section 173 (5) CrPC were not submitted along with the charge sheet/supplementary charge sheets filed against the petitioner and as such, the same could not be considered as charge sheet or final form in terms of Section 173 CrPC. Learned counsel submitted that since the supplementary charge sheet submitted against the petitioner was not a charge sheet or final form under Section 173 CrPC, in the eye of law for non-compliance of the provision of Section 173 (5) CrPC, the petitioner is entitled to default bail under Section 167 (2) of the CrPC. Mr. A.M. Bora, also placed reliance on a decision of the Apex Court in K. Veeraswami Vs. Union of India & Ors. reported in (1991) 3 SCC 655 to contend that the report under Section 173 CrPC is complete only when it is accompanied with all the documents and statements of witnesses as required by Section 173(5) CrPC. 6. The second submission made by the learned Sr. Counsel Mr. Bora is that since the further investigation is going to be completed, there is no necessity of detaining the petitioner in custody, who has already spent nearly one and half year in custody. Mr. 6. The second submission made by the learned Sr. Counsel Mr. Bora is that since the further investigation is going to be completed, there is no necessity of detaining the petitioner in custody, who has already spent nearly one and half year in custody. Mr. Bora, further submitted that there is no allegation against the petitioner that he has tempered with any evidence or tried to influence any witness or any material to show that he may jump bail, and as such, the triple test for consideration of bail at the stage of trial is in favour of the petitioner. It was also submitted by Mr. Bora that the maximum punishment provided for the offence alleged against the accused is 10 years and as such from the point of gravity of the offence also, the petitioner, who is in custody for more than one and half year, deserves to be released on bail. Lastly Mr. Bora also submitted that some of co-accused were even granted pre-arrest bail by this court taking note of the fact that their custodial detention is not required as the investigation is completed against them and as such, the petitioner also deserves bail on similar consideration. 7. Refuting the first submission of Mr. Bora, learned Addl. P.P., Mr. Phukan vehemently argued that compliance with Section 173 (5) CrPC is only directory and not mandatory. In support of his submission, Mr. Phukan, placed reliance on the following decisions: (i) (2002) 5 SCC 82 (CBI Vs. R.S. Pai) (ii) (2015) 3 SCC 417 (Narender Kumar Amin Vs. CBI). 8. So far the second limb of submission of Mr. Bora is concerned, learned Addl. P.P., Mr. M. Phukan, has not challenged the submission of the learned counsel for the petitioner that the triple test as enumerated by the Supreme Court in Crl. A. 1831/2019 (P. Chidambaram Vs. Directorate of Enforcement) i.e. the flight risk, tampering of evidence and influencing of witnesses are in favour of the petitioner. The contention raised by the learned Addl. P.P. is that the offence against the petitioner is a socio economic offence having great impact in the society, is a class apart and the same cannot be equated with any other offence and its gravity also cannot be tested solely on the touchstone of quantum of punishment provided for the offence. 9. As regards the first submission made by the learned Sr. Counsel Mr. 9. As regards the first submission made by the learned Sr. Counsel Mr. Bora, it is pertinent to mention that similar question was raised earlier in a bail petition (B.A. No. 176/2019) moved for the co-accused, namely, Basanta Kumar Doley, who was also a Member of the APSC and the first supplementary charge sheet was filed against him. An argument was advanced in the said bail application, that investigation was still continuing and therefore, supplementary charge sheet filed against the said co-accused Basanta Kr. Doley did not comply with the provision of Sub-section (2) of Section 173 CrPC and as such, the same could not be considered as complete report or charge sheet in terms of Section 173 of the CrPC. In the said case, this court observed that in order to consider, whether the supplementary charge-sheet against the petitioner Basanta Doley was a final report or complete charge-sheet under Section 173 CrPC, the court has to take into account the supplementary charge-sheet along with the original charge-sheet and the documents and materials submitted therewith. It was also held in the said bail application filed by the co-accused Basanta Kumar Doley, on scrutiny of the record, that all necessary documents and particulars in terms of Section 173(2) CrPC were furnished and as such, the supplementary charge sheet submitted against the accused Basanta Doley could not be considered as an incomplete or preliminary charge sheet. There is no dispute as regard the compliance with the provision of Sub- section (2) of Section 173 CrPC. The question raised is whether non-compliance or partial compliance of Sub-section (5) of Section 173 CrPC would render the charge sheet incomplete or take away the charge sheet from the purview of final report under Section 173 CrPC. 10. In R.S. Pai (supra), the Apex Court held that the word shall used in Section 173(5) CrPC regarding police officer to forward to the Magistrate all documents is directory and not mandatory. The Apex Court observed that it is always open to the investigating officer to produce the same with the permission of the court. In Narender Kumar Amin (supra) also the Apex Court held that non-filing of full set of document along with the police report/charge sheet within the statutory period does not entitle the accused to default bail so long as the police report is in compliance with Section 173(2) CrPC. In Narender Kumar Amin (supra) also the Apex Court held that non-filing of full set of document along with the police report/charge sheet within the statutory period does not entitle the accused to default bail so long as the police report is in compliance with Section 173(2) CrPC. The Apex Court also held that Section 173(5) is directory and not mandatory. 11. What is thus abundantly clear that even if all the document as contemplated in Section 173(5) CrPC are not filed along with the charge sheet that per-se does not entitle the accused to default bail. Therefore, once there is compliance with the provision of sub0section (2) of Section 173 CrPC, the charge sheet is complete, notwithstanding any deficiency in compliance with sub-section (5) which can even be complied with later on. The order dated 06.01.2020 also demonstrates that permission was sought by the Investigating Officer for submitting additional documents, which is very much permissible under the law. Be that as it may, on perusal of the charge sheets and the documents filed therewith, we find that provision of sub-section (5) of Section 173 CrPC was complied with in this case. Therefore, I find no merit in the first limb of argument advanced by the learned counsel for the petitioner that the petitioner deserves default bail for non-compliance of Section 173(5) CrPC by the Investigating Officer. 12. Coming to the second limb of argument, learned Sr. Counsel Mr. A.M. Bora submitted that the triple test enumerated in P. Chidambarams (supra) case are in favour of the petitioner and in fact, learned Addl. P.P. has also not contested that the triple test as enumerated by the Apex Court viz, flight risk, tampering with evidence and influencing of witnesses are in favour of the petitioner. In fact, no material has also been brought on record to show that the accused had tried to tamper with the evidence or tried to influence any witness or he is likely to jump bail or there is apprehension of his not facing the trial. The objection raised by the learned Addl. P.P. with vehemence is that the offence involved in the instant case being socio economic offence having great impact on the society, the petitioner cannot be released on bail only on the ground of length of detention. In support of his submission, learned Addl. The objection raised by the learned Addl. P.P. with vehemence is that the offence involved in the instant case being socio economic offence having great impact on the society, the petitioner cannot be released on bail only on the ground of length of detention. In support of his submission, learned Addl. P.P. placed reliance on the decision of the Apex Court in State of Bihar Vs. Amit Kumar @ Bachcha Rai reported in (2017) 13 SCC 751 ; Jagan Mohan Reddy Vs. CBI reported in (2013) 7 SCC 439 and Nimmagadda Prasad Vs. CBI reported in (2013) 7 SCC 466 . 13. The common thread passing through all these authorities is that socio economic offences, irrespective of the quantum of punishment are also offence of grave nature being a class apart, which arises out of deep-rooted conspiracy and affect the society as a whole and the courts are required keep in view the social impact of such offence, while considering the bail. 14. Learned Sr. Counsel Mr. Bora contended that all those three decisions relied by the learned Addl. P.P., relates to interalia offence under Section 409 CrPC, which provides for maximum punishment for life imprisonment. However, in the present case, maximum punishment is only 10 years imprisonment and therefore, all those three decisions cannot be applied in the instant case. The quantum of punishment is certainly a bench mark to decide the gravity of the offence, but as would appear from the abovementioned authorities, the quantum of punishment is not the sole criteria for deciding the gravity of the offence, more particularly in case of white colour and socio economic offence. The socio economic offences by itself is class apart having its ramification in the society as a whole are also considered to be a grave offence irrespective of the quantum of punishment provided for such offence. Therefore, I find no force in the submission of the learned counsel for the petitioner that the above three decisions relied by the learned Addl. P.P. cannot be applied in the present case to hold the offence to be of grave nature. 15. Learned Sr. Counsel Mr. Bora also submitted that considering the long period of detention of the petitioner in custody for nearly about one and half year, he should be granted bail. P.P. cannot be applied in the present case to hold the offence to be of grave nature. 15. Learned Sr. Counsel Mr. Bora also submitted that considering the long period of detention of the petitioner in custody for nearly about one and half year, he should be granted bail. It is no doubt true, that the length of detention or prolonged incarceration in jail may be a ground for consideration of bail in a particular case. But there cannot be any straight jacket formula or hard and fast rule that one shall be entitled to bail, only because he has been in custody for long time. Every case, after all, deserves to be considered on its own facts and merit. The Apex Court in Dipak Subhashchandra Mehta-VS- CBI reported in AIR 2012 (SC) 949 held as under : '17. this court has taken the view when there is a delay in the trial, bail should be granted to the accused [vide Babba v. State of Maharashtra, (2005) 11 SCC 569 ; Vivek Kumar v. State of U.P., (2009) 9 SCC 443.2] : ( AIR 2000 SC 3406 ) . But the same should not be applied to all cases mechanically.' 16. In State of Bihar and Anr. -Vs- Amit Kumar @ Bachcha Rai reported in (2017) 13 SC 751 , the Apex Court observed that when the offence is grave and serious, the mere fact that the accused was in jail for however long time should not be the concern of the court. 17. Be that as it may, since granting or refusing bail is a matter of judicial discretion, various factors are required to be considered for exercising such judicial discretion. Though there is no any hard and fast-rule, or a straight jacket formula for granting or refusing bail, the Apex Court has laid down time to time various factors, by way of illustrations, which are to be taken into consideration, while granting or refusing bail. In the case of Virupakshappa Gouda & Anr. -VS- The State of Karnataka & Anr. (2017) 5 SCC 406 , the Apex Court, held in paragraph 16 as under :- '16. The court has to keep in mind what has been stated in Chaman Lal vs. State of U.P. and another. In the case of Virupakshappa Gouda & Anr. -VS- The State of Karnataka & Anr. (2017) 5 SCC 406 , the Apex Court, held in paragraph 16 as under :- '16. The court has to keep in mind what has been stated in Chaman Lal vs. State of U.P. and another. The requisite factors are: (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii)reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and another, it has been opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. We may usefully reproduce the said passage:- '9 among other circumstances, the factors which are to be borne in mind while considering an application for bail are:(i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence.(ii) nature and gravity of the accusation;(iii) severity of the punishment in the event of conviction;(iv) danger of the accused absconding or fleeing, if released on bail;(v) character, behaviour, means, position and standing of the accused;(vi) likelihood of the offence being repeated;(vii) reasonable apprehension of the witnesses being influenced; and(viii) danger, of course, of justice being thwarted by grant of bail.' 18. The courts are certainly obliged to follow the guidelines or criteria while considering the bail. But then, it is also accepted principle that each case has to considered on its own peculiar facts situation and merit. 19. In the present case, the petitioner has been a member of the Assam Public Service Commission, which is a body constituted under the provision of the Constitution, for conducting the examination to select suitable candidates for the public services of the state. The allegation against the petitioner is that he has failed to discharge his constitutional duty and resorted to corruption for providing job for cash, depriving the deserving, genuine and bona fide candidates. The allegation against the petitioner is that he has failed to discharge his constitutional duty and resorted to corruption for providing job for cash, depriving the deserving, genuine and bona fide candidates. The charge sheet filed against the petitioner, and the case diary transpires, that sufficient materials were collected by the investigating agency to make out a strong prima facie case against the petitioner, which includes receiving illegal gratification, manipulation in the marks obtained by the candidates to favour undeserving candidates for illegal gain etc. Having regard to the nature of offence and the position held by the petitioner, in my considered opinion, he cannot be equated with any other ordinary offender, reason being that even in case of heinous offence like murder, ultimate sufferer is the victim or his dependants, but the offence alleged against the petitioner affected the entire society. 20. It is also to be taken note of that the petitioner, by his alleged criminal activity not only shattered the trust and faith reposed on him by the society and the state and betrayed the nation and society, but also committed fraud on the Constitution by deviating from his solemn constitutional responsibility. Having regard to the solemnity of the duty entrusted to the petitioner as member of the Public Service Commission, the offences alleged against the petitioner are extremely grave and serious, which cannot be measured in terms of quantum of punishment. Therefore, 'such socio- economic offence, which is a class apart', cannot be equated with other usual offences while considering bail. The Apex Court, in State of Bihar and Anr. -Vs- Amit Kumar (supra), dealing with the socio-economic offences held that 'it is well settled that socioeconomic offences constitute a class apart and need to be visited with a different approach in the matter of bail. Usually socio-economic offence has deep rooted conspiracy affecting the moral fiber of the society and causing irreparable harm needs to be considered seriously.' Therefore, social impact of granting or refusing bail in a case of present nature, cannot be overlooked. 21. Learned counsel Mr. Bora contended that some of the co-accused who got the jobs and became the beneficiary of the crime has already been granted bail by this court and as such, the petitioner also deserves similar consideration for bail on the ground of parity. 21. Learned counsel Mr. Bora contended that some of the co-accused who got the jobs and became the beneficiary of the crime has already been granted bail by this court and as such, the petitioner also deserves similar consideration for bail on the ground of parity. The petitioner in the present case has been one of the Member of the APSC and along with other Members and Chairman entered into criminal conspiracy to provide job for cash and as such, he is certainly one of the kingpin or ring leader of the conspiracy to commit the offence and as such, he cannot be treated equally with the so-called beneficiary of the offence, who rather, may deserve some amount of compassion in case of bail, inasmuch as, to some extent they can also be said to be victim of the circumstances. Therefore, though the offence may be similar or punishment also may be same or similar, regard being had to the position of the petitioner, his role in the offence and social impact of the offence alleged against the petitioner, he cannot be placed on the same footing with the other co-accused, who allegedly procured job illegally. Therefore, there is no question of parity in the present case. This apart, while granting or refusing bail in a case of present nature, more particularly to the accused who is one of the kingpin or ring leader, court cannot also ignore the question of public trusted faith in the judicial system, albeit, keeping in view the question of personal liberty. 22. No doubt, rejection of bail results in curtailment or restriction on the personal liberty, nonetheless, while considering the personal liberty of the petitioner, we cannot ignore or undermine the social interest and the social impact of granting or refusing bail in a case of socio-economic offence of the present nature. The Apex Court in Siddharama Satlingappa Mehta-VS- State of Maharashtra (2011) 1 SCC 694 , commenting on the personal liberty visa-a-vi social interest observed that just as liberty is precious to an individual, so is the societys interest in maintenance of peace, law and order. Both are equally important. Therefore, it is certainly necessary to strike a balance between the personal liberty and the social interest. 23. This is obviously a case where the personal liberty and social interest are pilted against each other. Both are equally important. Therefore, it is certainly necessary to strike a balance between the personal liberty and the social interest. 23. This is obviously a case where the personal liberty and social interest are pilted against each other. However, having regard to the gravity and the socio economic nature of offence alleged against the petitioner and its perilous effect on the society as a whole, and also the impact of granting or refusing bail on the society, I am of the considered opinion that the balance between the personal liberty and social interest is tilted against the grant of bail to the petitioner. Being of the above view, I am not inclined to grant bail to the petitioner. Accordingly, the bail application stands rejected. 24. The bail petition stands disposed of. Send down the case diary along with the record and a copy of this order positively by tomorrow.