Rubul Hazarika @ Rubul Ali vs The State Of Assam
2021 Latest Caselaw 1978 Gua

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GAHC010091852021




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : Bail Appln./1217/2021

            RUBUL HAZARIKA @ RUBUL ALI
            S/O SAYED ALI, R/O SHIVAM NAGAR, WARD NO. 13, CHAPAGURI ROAD,
            BONGAIGAON, DIST. BONGAIGAON, ASSAM



            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM



Advocate for the Petitioner   : MR. A K BHUYAN

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                     HONOURABLE MR. JUSTICE AJIT BORTHAKUR

                                          ORDER

26.08.2021

Heard Mr. A.K. Bhuyan, learned Sr. counsel appearing for the accused petitioner. Also heard Mr. D. Das, learned Addl. Public Prosecutor, Assam appearing for the State respondent.

2. By this second petition under Section 439 Cr.P.C., the petitioner, namely Page No.# 2/10

Rubul Hazarika @Rubul Ali has prayed for grant of bail in connection with Special Case No. 06/2021 [Arising out of CID P.S. Case No. 21/2020] under charge-sheeted Sections 120B/120/201/204/406/420/461/34 of the IPC r/w Section 66B of the I.T. Act and Sections 8/12 of the Prevention of Corruption Act.

3. The scanned copy of the case record along with the case diary, as called for, is placed before the Court.

4. The earlier bail application being B.A. No. 2532/2020 was rejected during the period of investigation vide order, dated 02.12.2020.

5. Mr. A.K. Bhuyan, learned Sr. counsel appearing for the accused petitioner, contends that the accused has been in judicial custody since he was remanded in judicial custody on 10.10.2020 despite being absolutely innocent as he was not even remotely concerned with the alleged cash for job scam. Mr. Bhuyan submits that the investigation has been completed in the case with filing of the charge-sheet on 18.12.2020 and cognizance of the offences has been taken by the Court of learned Special Judge, Assam at Guwahati on 29.01.2021 against the present accused and others and, that further the accused surrendered before the police on 09.10.2021 at Nalbari after knowing from the electronic media that he was also implicated in the S.I. of Police (U.B.) recruitment scam. Mr. Bhuyan also submits that as the investigation is over and cognizance of the offences against him and others has been taken by the learned Court and all the relevant documents collected during the investigation are now in the custody of the Court, there is no chance of the accused tampering with the same and as such, influencing the charge-sheet cited witnesses in any manner does not arise at all. Mr. Bhuyan, learned Sr. Counsel vehemently submits that as the maximum punishment for the offences on which cognizance has been taken is 7 years and Page No.# 3/10

the allegations brought against the accused being serious, he may be given sufficient opportunity to defend his case by engaging an Advocate of his choice. Therefore, Mr. Bhuyan contends that the accused is entitled to legal assistance and as such, keeping him behind the bar would cause substantial prejudice to him in defending his cause. On the other hand, Mr. Bhuyan submits that no case under the provisions of the P.C. Act is made out against the accused petitioner as nothing was seized from his possession and the ingredients of the other offences too under the IPC or IT Act are satisfied in the instant case. As the accused has been in judicial custody for a long period (313 days) in connection with the case without any progress except taking cognizance of the offences as charge-sheeted, the learned Court below may be directed to release the accused petitioner on bail subject to any condition(s).

6. In support of his contentions, Mr. Bhuyan, learned Sr. Counsel, relied on the principles for granting bail laid by the Hon'ble Supreme Court in- 1) Arnesh Kumar Vs. State of Bihar and Anr., reported in (2014) 8 SCC 273; 2) Sagar Tatyaram Gorkhe and Anr. Vs. State of Maharashtra, reported in (2021) 3 SCC 725; 3) Dipak Shubhashchandra Mehta Vs. CBI and Anr., reported in (2012) 4 SCC 134; 4) Sanjay Chandra Vs. CBI, reported in (2012) 1 SCC 40; 5) Vivek Kumar Vs. State of U.P., reported in (2000) 9 SCC 443; and 6) State of Kerala Vs. Raneef, reported in (2011) 1 SCC 784.

7. Per contra, Mr. D. Das, learned Addl. Public Prosecutor, submits that the present accused was one of the prime accused persons, who were directly involved in a deep rooted organised conspiracy throughout the state of Assam in the recruitment process of S.I. (UB) in the Assam Police Department and their conspiracy affected thousands of unemployed aspirants for the aforesaid posts Page No.# 4/10

and as such, in such a factual background of seriousness of wide ranging conspiracy, the liberty of bail may not be granted to the accused, inter-alia, on the ground of his length of detention. Mr. Das also submits that the learned Court below has taken cognizance of the offences as charge-sheeted against the accused persons numbering 36 and the case is pending for appearance of the accused persons who are on bail and for consideration of charges which are basically related to socio-economic offences. Mr. Das further submits that in the backdrop of facts and circumstances that emerge from the case diary and balancing the considerations of individual liberty and societal interest, if the liberty of bail is considered favourably, it is certain to affect the trial of the case and ensuring justice to all concerned.

8. In this context, Mr. D. Das, learned Addl. Public Prosecutor has relevantly relied on the ratio of the judgments rendered by the Hon'ble Supreme Court in-

1) State of Bihar and Anr. Vs. Amit Kumar alias Bachcha Rai, reported in (2017) 13 SCC 751; 2) Nimmagadda Prasad Vs. CBI, reported in (2013) 7 SCC 466; 3) Neeru Yadav Vs. State of Uttar Pradesh and Anr., reported in (2016) 15 SCC 422; 4) Chandrakeshwar Prasad alias Chandu Babu Vs. State of Bihar and Anr., reported in (2016) 9 SCC 433 and 5) Chandrakeshwar Prasad v. State of Bihar, reported in (2016) 9 SCC 443.

9. I have given due consideration to the above respective submissions made by the learned counsel for both the sides and scrutinized the case record along with the case diary and also the above judgements of the Hon'ble Supreme Court cited by both sides.

10. The prosecution allegation is that on 20.09.2020, the Chairman, State Level Police Recruitment Board, Assam lodged an F.I.R. with the Officer-in-

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Charge, CID P.S., Assam alleging, inter-alia, that the written test for recruitment of 597 posts of Sub-Inspector (UB) in Assam Police was scheduled to be held w.e.f. 12 Noon to 3 PM on 20.09.2020 in various venues/centres in all District Headquarters across the State under the supervision of the District Level Selection Committees constituted by the State level Police Recruitment Board, Assam. However, the question paper was leaked and circulated in Whatsapp due to which the Government of Assam had to cancel the written test.Such urgent step for cancellation of the competitive written test of recruitment had damaged the image of the Recruitment Board as well as that of the Government of Assam, apart from causing financial loss to the Government and affecting the careers of the aspiring candidates as well. The informant also alleged that he received the information about the leakage of the question paper through whatsapp message from one Shri Gautam Mech.

11. In the case of Sanjay Chandra (Supra), the Hon'ble Supreme Court observed-

"21..........the object of bail is to secure the appearance of the

accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

12. In Dipak Shubhashchandra Mehta (supra), the Hon'ble Supreme Court held-

"32. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need Page No.# 6/10

not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (c) prima facie satisfaction of the court in support of the charge. In addition to the same, the court while considering a petition for grant of bail in a non- bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted."

13. In the case of Chandrakeshwar Prasad (supra), the Hon'ble Apex Court reiterated the observations made in Rajesh Ranjan Yadav v. CBI, (2007) 1 SCC 70 as under-

"16. We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the court has also to take into consideration other facts and circumstances, such as the interest of the society."

14. In Amit Kumar (Supra), the Apex Court observed that when seriousness of offence was of such magnitude mere fact that the accused was in jail for long time is inconsequential. The Court held that though bail is the rule and jail an exception but, competing forces need to be carefully measured before enlarging accused on bail as socio-economic offences constitute a class apart and need to be visited with different approach in the matter of bail since socio-economic offences have deep rooted conspiracies affecting the moral fibre of the society and causing irreparable harm.

15. In Neeru Yadav (supra), the Apex Court observed-

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"13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself."

16. In Nimmagadda Prasad (supra), the Hon'ble Supreme Court held as follows-

"24. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

17. A perusal of the case record prima facie reveals that after completion of investigation, the CID submitted charge-sheet and the prosecution sanction order of the Governor of Assam against total 36 accused persons including the present accused petitioner vide order, dated 29.01.2021. Out of the said charge- sheeted accused persons, 4 accused persons are on bail after scrutinizing the respective implicating materials specific against them and accordingly, summons Page No.# 8/10

have been issued for their appearance. The charges are, therefore, yet to be considered and framed, if materials found against them.

18. On meticulous scrutiny of the case diary, it is prima facie noticed that after an advertisement was published for recruitment of 597 posts of Sub-Inspector of Police (UB) in the Assam Police Department, the present accused and other co-accused persons pursuant to their criminal conspiracy published an advertisement in a vernacular daily namely 'Ami Asomor Janagan' in its edition dated 02.12.2019 with intent to link up with the aspiring candidates and accordingly, formed a number of criminal rackets comprising many persons including the present accused and visited a number of places including the district of Karimganj to contact one of the other arrested prime accused, who is a senior Police Officer serving in the said district as Chairman of the District Level Selection Committee ('DLSC' for short) and custodian of the question papers for the written test in the said district. Ex facie, to facilitate their state- wide criminal conspiracy racket contacted some of the aspiring candidates for the post through their newly purchased mobile handsets with new fake sim cards apparently to conceal their identity in the aforesaid acts.

19. It is prima facie further noticed that the accused petitioner in collusion with the co-accused persons opened the seal of the trunk containing the question papers in the official residence of the said senior police officer and Chairman of the DLSC, Karimganj and took photographs of the question papers in exchange of Rs. 40 lakhs and thereafter, they passed on the same to the aspiring candidates as well as held mock test at Hotel Bhargav in Guwahati. It is also noticed that on 26.11.2020, a Test Identification Parade (T.I.P.) was conducted where the present accused was identified by the witnesses.

20. Thus, it is seen that the accusation against the present accused petitioner Page No.# 9/10

is of serious nature involving deep rooted conspiracy whereby the transparency in the S.I. recruitment test in the state was maligned affecting the right to employment of the thousands of unemployed youths who applied for the post through a fair and transparent process of public recruitment. So, right to liberty of the prisoner and societal interest, if fairly balanced, in the backdrop of the attending facts and circumstances peculiar to the present accused, he does not deserve to be enlarged on bail at the present pre-charge framing stage. This Court is of the view that the manner in which the conspiracies, that is, the nature and character of the conspiracies hatched up by the accused petitioner and his associates (most of whom are senior police officers and their subordinate personnel) throughout the state for wrongful financial gains causing wrongful loss to the young unemployed populace of the state, there is every apprehension of his tampering with the charge-sheet cited witnesses if the liberty of bail is granted to him at the present stage of before consideration of charges and material witnesses cited in the charge-sheet are examined in the case. Therefore, the bail application stands rejected.

As the accused petitioner has been in judicial custody since 10.10.2020, I consider it appropriate to direct the learned Special Judge, Assam to expedite the process of law for early disposal of the case.

The accused is given liberty to file fresh bail application before the learned Special Judge, Assam, if so advised and if such bail application is filed, the same may be disposed of at an appropriate stage of trial of the case.

The learned Special Judge, Assam shall make available of legal aid service to the accused petitioner, if so requested.

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The Director of Prosecution, Assam shall periodically monitor the effective service/execution of the court processes issued to the accused persons, who are on bail and to the witnesses, on time.

Be it mentioned that any observations made by this Court in course of this order shall not influence the discretion of the learned Court below.

Return the case diary.

This disposes of the bail application.

JUDGE

Comparing Assistant