Abdur Rezzak vs The State Of Assam
2021 Latest Caselaw 2101 Gua

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GAHC010101112021




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

                               Case No. : Bail Appln./1525/2021

             ABDUR REZZAK
             SON OF AMIR UDDIN
             R/O VILL- AGMANDIA
             P.O. MANDIA
             P.S. BAGHBAR
             DIST. BARPETA, ASSAM



             VERSUS

             THE STATE OF ASSAM
             REP. BY PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR. D DAS SR. ADV

Advocate for the Respondent : PP, ASSAM




                                    BEFORE
                     HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                          ORDER

09.09.2021

Heard Mr. D. Das, learned Sr. counsel for the accused-petitioner and Mr. B.B. Gogoi, learned Addl. Public Prosecutor for the State/respondent.

2. This bail application has been filed by the accused-petitioner namely, Abdur Page No.# 2/8

Rezzak, seeking bail in connection with Vigilance P.S. Case No. 02/2021 under Sections 120(B)/406/420/409/468/471 of the IPC read with Section 13(2) of the Prevention of Corruption Act (Amendment), 1988.

3. Vide the FIR dated 04.06.2021 lodged by the informant namely Mrinal Sarma, APS, Deputy Superintendent of Police, CM's Special Vigilance Cell, Assam, several anomalies, financial irregularities leading to misappropriation of Government fund in respect of Developmental Scheme under MLA-LAD Scheme in Bagbor LAC under Barpeta district are alleged against the accused persons named therein. Pursuant to the FIR lodged, the accused-petitioner was taken into custody and has been in judicial custody since 30.06.2021.

4. The learned Senior counsel for the accused-petitioner submits that the instant case was registered on the basis of a purported complaint petition dated 27.11.2017 alleging misappropriation of Government fund in Sevelopment Schemes under MLA-LAD fund in Bagbor LAC under Barpeta district without execution of works. Subsequently, on the basis of the said complaint petition, regular enquiry bearing Regular Enquiry No. 11/2018 of the Chief Minister's Special Vigilance Cell was conducted. During the enquiry, documents were collected and witnesses were examined and it was found that the 14 Nos. of MLA-LAD Schemes under Mandia Development Block in respect of Bagbor LAC were not executed as per plan and estimate by the Construction Committee constituted by the Deputy Commissioner, Barpeta. Accordingly, huge amount of Government fund was misappropriated causing wrongful loss to the Government and illegal gain to the accused- petitioner.

5. The learned Senior counsel for the accused-petitioner submits that that the accused petitioner was appointed as the then President of the Construction Committee, which was constituted for 11 nos. of Schemes out of the aforesaid 14 nos. of Schemes under MLA- LAD Schemes in question. The learned Senior counsel for the accused-petitioner referring to the revised guidelines on MLA Area Development, which is annexed as Annexure-C to the bail petition, refers to the relevant clauses to submit that it is the Deputy Page No.# 3/8

Commissioner of the said district who accords the administrative approval and sanction of all works and also identifies the executing/implementing agency through which particular works recommended by the MLA are to be executed. The learned Sr. counsel further submits that the ingredients of Sections under which the aforesaid Vigilance P.S. Case No. 02/2021 including Section 409 of the IPC, has been registered are not made out against the accused-petitioner in the facts and circumstances of the case.

6. The learned Senior counsel for the accused-petitioner submits that other similarly situated persons named in the FIR have already been released on bail by a Co-ordinate Bench of this Court vide order dated 10.08.2021 passed in B.A. No. 1456/2021.

7. Mr. B.B. Gogoi, learned Addl. Public Prosecutor, Assam strongly objected to the prayers made by the learned Sr. counsel for the petitioner. He submits that the matter is under investigation and therefore, release of the accused-petitioner on bail at this stage is likely to hamper the investigation carried on the present case. Mr. Gogoi submits that as directed by this Court by order dated 03.09.2021, the status report in respect of the investigation carried on, have been received and the same are placed before this Court along with the case diary called for.

8. The learned counsel for the parties have been heard. The case diary along with the status report furnished, have been duly perused.

9. Upon perusal of the case diary, it is seen that the allegations against the accused- petitioner are that Government funds allocated for MLA-LAD Schemes were misappropriated by the Members of the Construction Committee causing wrongful loss to the Government and corresponding illegal gain to the accused-petitioner. The details of each construction work involved, amount sanctioned, value of work executed as per the expert team are seen in the case diary produced. It is seen that joint verification report was submitted by an expert team comprising of Officers of the PWD Road. From the said verification report, it is seen that out of 14 nos. of roads under MLA-LAD Schemes in respect of Bagbor LAC, Mandia Development Block, the authority released a total of Rs.

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65 Lakhs but the Construction Committee spent only Rs. 39,91,677/- for construction of the said roads and accordingly, the Government fund to the tune of Rs. 25,08,323/- was misappropriated without execution of works as per plan and estimate. During the scrutiny of Measurement Books, it was found that 100% of works were shown to be executed on

receipt of the 1st installment. During enquiry, the suspected/accused-persons were unable

to offer their explanations for execution of the 100% works prior to receipt of 2 nd and 3rd installments. No Minutes of meetings were found to be maintained by the Construction Committee. Although, certain documents and papers have been seized by the police during investigation, however, the investigation is still not completed and the charge- sheet has not been filed as yet. Some of the witnesses are yet to be examined. It is also seen that the accused-petitioner is the President of the Construction Committee. From the pleadings as well as the case diary examined, it appears that the construction of the roads were required to be undertaken by the Construction Committee. There is also no specific averments regarding the function of the Construction Committee including its President with regard to implementation of the development works in question. From the case diary, it is seen that allegations are made that the developmental works were required to be executed by the Constructions Committee which however was not done as per plan and estimate resulting in misappropriation of Government funds.

10. The accused-petitioner is charged with commission of economic offences of substantial magnitude. Where such allegations in respect of economic offences are made, the seriousness of such offences alleged will weigh against the submission of the accused-petitioner for bail solely on the ground of being in custody for considerable period of time and/or released on bail on the ground of parity. It is seen that the mandatory period prescribed under the statute is not yet complete and the investigation is also under progress. The release on bail of one Jadav Chandra Choudhury and Md. Yusufur Rahman stated to be co-accuseds on bail by order dated 10.08.2021 passed in B.A No. 1456/2021 cannot be a ground for release of the present petitioner without taking into consideration the extent, gravity and the magnitude of the offences alleged. That apart, the said co-accuseds released on bail were/are Government Officers who were Page No.# 5/8

posted as Block Development Officer (BDO) of the Mandia Development Block. Jadav Chandra Choudhury had in the meantime also retired from service on 29.02.2021. In so far as the accused-petitioner is concerned, it is seen that he was the President of the Construction Committee constituted for 11 nos. of Schemes out of total 14 nos. of Schemes. As discussed above, the allegations against the Construction Committee inter- alia are that there were no Minutes of any day to day meetings maintained although they were responsible for execution of the works under the MLA-LAD Schemes for which funds were released from the Government Exchequer. The case of the accused-petitioner stands on different footing as compared to the other co-accuseds released on bail by order of this Court.

11. The Apex Court in State of Bihar and Anr. Vs. Amit Kumar alias Bachcha Rai reported in (2017) 13 SCC 751 has cautioned against the grant of bail in respect of economic offences. The Apex Court held that the seriousness of the offences was of such magnitude the mere fact that the accused was in jail for a long time was inconsequential. Such approach will undermine the trust of public. It was further held that that although "bail is the rule and jail is an exception ", the same is required to be carefully measured before enlarging the accused on bail. The relevant paragraphs of the Judgment of the Apex Court are extracted:

"8. A bare reading of the order impugned discloses that the High Court has not given any reasoning while granting bail. In a mechanical way, the High Court granted bail more on the fact that the accused is already in custody for a long time. When the seriousness of the offence is such the mere fact that he was in jail for however long time should not be the concern of the courts. We are not able to appreciate such a casual approach while granting bail in a case which has the effect of undermining the trust of people in the integrity of the education system in the State of Bihar.

9. We are conscious of the fact that the accused is charged with economic offences of huge magnitude and is alleged to be the kingpin/ringleader.

Further, it is alleged that the respondent-accused is involved in tampering with the answer sheets by illegal means and interfering with the examination system of Bihar Intermediate Examination, 2016 and thereby securing top ranks, for his daughter and other students of Vishnu Rai College, in the said examination. During the investigation when a search team raided his place, Page No.# 6/8

various documents relating to property and land to the tune of Rs 2.57 crores were recovered besides Rs 20 lakhs in cash. In addition to this, allegedly a large number of written answer sheets of various students, letterheads and rubber stamps of several authorities, admit cards, illegal firearm, etc. were found which establishes a prima facie case against the respondent. The allegations against the respondent are very serious in nature, which are reflected from the excerpts of the case diary. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the credibility of the education system of the State of Bihar.

10. The learned Senior Counsel appearing for the respondent claimed parity with twenty-eight (28) other accused persons in the same case who have already been granted bail. We find that though some of the accused are released on bail most of them are teachers who performed the invigilation duty and members of the Managing Committee against whom the charges are not so serious. It is not appropriate to compare the case of the respondent- accused, with those who were on bail, as the respondent is alleged to be the kingpin of the entire crime.

11. Although there is no quarrel with respect to the legal propositions canvassed by the learned counsel, it should be noted that there is no straitjacket formula for consideration of grant of bail to an accused. It all depends upon the facts and circumstances of each case. The Government's interest in preventing crime by arrestees is both legitimate and compelling. So also is the cherished right of personal liberty envisaged under Article 21 of the Constitution. Section 439 of the Code of Criminal Procedure, 1973, which is the bail provision, places responsibility upon the courts to uphold procedural fairness before a person's liberty is abridged. Although "bail is the rule and jail is an exception" is well established in our jurisprudence, we have to measure competing forces present in facts and circumstances of each case before enlarging a person on bail.

12. We are of the considered opinion that Sanjay Chandra [Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] , as relied upon by the learned counsel for the respondent, is distinguishable from the case at hand as the charges in that case carried a maximum punishment for a term which may extend to seven years. In the present case, charge-sheet has been submitted, inter alia, for the offences under Sections 409 [ Which carries punishment of imprisonment for life, or imprisonment of either description for a term which may extend up to ten years and shall also be liable for a fine.] , 465, 467 [ Which carries punishment of imprisonment for life or with imprisonment of either description which may extend up to a term of ten years and shall also be liable to a fine.] , 468, 471, 188, 201, 212 and 120-B of the Penal Code, 1860 and Sections 8 [ Which carries punishment of imprisonment for minimum of three years and may extend up to seven years with fine.] , 9 [ Which carries punishment of Page No.# 7/8

imprisonment for minimum of three years and may extend up to seven years with fine.] , 13(1)(c)/(d) read with Section 13(2) [ Which carries punishment of imprisonment for minimum of four years and may extend up to ten years with fine.] of the Prevention of Corruption Act, 1988 [ It is to be noted that Prevention of Corruption Act, 1988 was amended by 'the Lokpal and Lokayuktas Act, 2013', Act 1 of 2014 (w.e.f. 16-1-2014). This amendment has increased the minimum prescribed punishment under Sections 8, 9, 13(2) of the Prevention of Corruption Act.] . Therefore, Sanjay Chandra [Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] provides no assistance for the respondent herein.

13. We are also conscious that if undeserving candidates are 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 are ultimately disentitled to a good rank by fraudulent practices prevalent in those examinations. It is well settled that socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of bail [Nimmagadda Prasad v. CBI, (2013) 7 SCC 466 : (2013) 3 SCC (Cri) 575; Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439 : (2013) 3 SCC (Cri) 552] . Usually socio-economic offence has deep- rooted conspiracies affecting the moral fibre of the society and causing irreparable harm, needs to be considered seriously.

14. Further, we cannot lose sight of the fact that the investigating agency is going to file additional charge-sheet. Therefore, the respondent's presence in the custody may be necessary for further investigation. Furthermore, we cannot approve the order of the High Court, in directing the investigating authority concerned to file the charge-sheet within a month, as the case involves almost 32 accused and a complex modus operandi."

12. In the facts of the present proceedings, on the materials perused as placed before this Court, it is seen that the investigation is still in progress. As it is seen from the materials on the case diary that the examination of witnesses are still in progress and vital documents alleged to be in the custody of the accused person are yet to be recovered. In view of the above discussions, this Court is of the considered opinion that release of the accused-petitioner at this stage is likely to hamper the investigation

13. Accordingly, this Court does not find sufficient grounds to release the petitioner as prayed for in connection with the aforesaid case.

14. The bail petition is accordingly dismissed.

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15. Return the case diary.

JUDGE

Comparing Assistant