Rakibul Islam @ Rekib vs The State Of Assam
2022 Latest Caselaw 1908 Gua

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GAHC010037552022




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

                                Case No. : Bail Appln./440/2022

            RAKIBUL ISLAM @ REKIB
            S/O LATE RIAZ UDDIN, VILL- BHOGRANDHA, P.O.-GAJIA, P.S.-BARPETA,
            DIST- BARPETA, ASSAM


            VERSUS

            THE STATE OF ASSAM
            REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR. R ALI

Advocate for the Respondent : PP, ASSAM




                                     BEFORE
                    HONOURABLE MR. JUSTICE HITESH KUMAR SARMA

                                            ORDER

Date : 01-06-2022

Heard Mr. AM Bora, learned senior counsel assisted by Mr. R Ali, learned counsel for the petitioner. Also heard Mr. M Phukan, learned Public Prosecutor, appearing for the State respondent.

2. This is an application, filed under Section 439 of the Cr.PC. seeking bail of the accused-petitioner, namely, Rakibul Islam @ Rekib, in connection Page No.# 2/12

with Special Case No. 06/2021 arising out of CID Police Station Case No. 21/2020 registered under Sections 120(B)/201/204/409/34 of the IPC read with Section 66(B) of the IT Act and Section 25(1-B) of the Arms Act and Sections 7(a)(b)(c)/8/12/13(1)(a)/13(2) of Prevention of Corruption Act.

3. The genesis of the abovementioned criminal prosecution may be traced to the Sub-Inspector (UB) Recruitment Examination (Written) for filling up 597 vacancies in Assam Police, which was to be conducted on 20-09-2020 in all the district headquarters across the State of Assam under the supervision of the District Level Selection Committees constituted by the State Level Police Recruitment Board, Assam. The First Information Report (for short "FIR"), on the basis whereof the aforesaid case was registered, was lodged by Shri Pradeep Kumar, IPS (Retd.), the Chairman of the State Level Police Recruitment Board, Guwahati. It was alleged in the FIR that the question paper of the aforementioned written examination had been leaked and circulated in WhatsApp messenger and as a result of which the written examination had to be cancelled. It was further alleged that the persons involved in the act of leaking the question paper, with their malafide intention, had damaged the image of the Recruitment Board as well as of the Government of Assam, apart from causing financial loss to the State Government and playing with the careers of the aspiring candidates. The complainant furthermore alleged that he had received the information about the leakage of the question paper through WhatsApp message from one Shri Gautam Mech.

4. It is imperative to note that after completion of the investigation into the alleged offences, a charge-sheet has already been laid against 36 accused persons under Sections 120B, 120, 201, 204, 212, 420, 506 read with Section 34 of the IPC and Section 66-B of the IT Act and Sections 25 (1B) (a) and 25 Page No.# 3/12

(1B) (h) of the Arms Act and Section 8 of the PC Act.

5. In the charge-sheet so filed, the name of the petitioner was not included as an accused. However, subsequently, on the basis of statements of the witnesses Balaram Das, Saurab Kr. Das and Jitu Jyoti Sandilya, i.e., PW 12, PW 13 and PW 30 respectively, a final charge-sheet has been laid naming the present petitioner as an accused for offences under Sections 120(B)/201/204/420/34 of the IPC read with Section 66(B) of the I.T. Act showing him as an absconder. However, the accused surrendered before the learned court below and since then he has been in custody for 260 days.

6. Mr. Bora, learned senior counsel for the petitioner has submitted that in the statement of the aforesaid three witnesses, the witness Saurab Kr. Das has only implicated the petitioner with leaking of the question paper of the examination, involved in this case, to him. It has further been submitted that the petitioner is not the main accused in the instant case and he is an advocate by profession and he used to work for co-accused Saroj Sarma as an advocate only and that this Saroj Sarma has not implicated the petitioner with the offences alleged. The witness Jitu Jyoti Sandilya has also not implicated the petitioner as submitted by Mr. Bora.

7. It has further been submitted by Mr. Bora, learned senior counsel for the petitioner, that charge-sheet has already been laid in the instant case and the petitioner has been in custody for 260 days, as on date and therefore, his custodial detention is not necessary. He has also referred to the decision of the Hon'ble Supreme Court of India in the case of Sanjay Chandra -vs- CBI, reported in (2012) 1 SCC 40, particularly paras 27 and 28 thereof. The said paras are quoted below for the sake of convenience.

"27. In `Bihar Fodder Scam', this Court, taking into Page No.# 4/12

consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.

28. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI." This Court refrains from commenting on the applicability or otherwise of this decision in the given facts of this case in view of the final order that would be passed in this application (paragraph 16).

8. Mr. Bora, learned senior counsel for the petitioner has also referred to the decision of the Hon'ble Supreme Court of India in the case of Parveen @ Sonu

-vs- The State of Haryana, particularly para 12 thereof. The said para is quoted below for the sake of convenience.

"12. It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is Page No.# 5/12

difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co-accused, in absence of other acceptable corroborative evidence, is not safe to convict the accused. In the case of Indra Dalal v. State Of Haryana1, this Court has considered the conviction based only on confessional statement and recovery of vehicle used in the crime. In the said case, while [email protected](Crl.)No.5438 of 2020 setting aside the conviction, this Court has held in paragraphs 16 & 17 as under:

"16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practising oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts.

17. The word "confession" has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the Page No.# 6/12

police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is, other than a police officer, shall also become inadmissible."

However, this Court, on perusal of the this decision, would like to record that the same is in connection with an appeal and not passed in an application for bail, on merit and on the basis of evidence on record. Therefore, the judgment does not appear to be applicable in the instant case.

9. Learned senior counsel for the petitioner, Mr. Bora has also referred to the decision of the Hon'ble Supreme Court of India in the case of Archana Rana - vs- State of Uttar Pradesh & Anr. , reported in (2021) 3 SCC 751, particularly para 6 thereof. The said para is quoted below for the sake of convenience.

"6. Now, keeping in mind the relevant ingredients for the offences under Sections 419 & 420 IPC, as noted hereinabove, it is required to be considered whether the averments in the complaint taken on their face do constitute the ingredients necessary for the offences under Sections 419 & 420 IPC, as alleged.

Having gone through the complaint/FIR and even the chargesheet, it cannot be said that the averments in the FIR and Page No.# 7/12

the allegations in the complaint against the appellant constitute an offence under Section 419 & 420 IPC. Whatever allegations are made for the offence with respect to inducement and/or even giving Rs.5,00,000/- for obtaining the job, are made against the appellant's husband, co-accused. There are no allegations at all that the appellant herein induced the complainant to get the job and the amount of Rs.5,00,000/- was given to the appellant herein. Therefore, even if all the allegations in the complaint taken at the face value are true, in our view, the basic essential ingredients of cheating are missing. Therefore, this was a fit case for the High Court to exercise the jurisdiction under Section 482 Cr.P.C. and to quash the criminal proceedings against the appellant herein for the offences under Section 419 & 420 IPC. The High Court has failed to exercise the jurisdiction vested in it by not quashing the criminal proceedings against the appellant herein for the offences under Sections 419 & 420 IPC."

This decision also was recorded in connection with an appeal on discussions on the evidence, on merit and was not recorded in connection with a bail application.

10. Mr. Bora, learned senior counsel for the petitioner has also submitted that there are about 200 witnesses in this case and the trial of the case is unlikely to be concluded early and therefore, he has sought for bail on this count also. He has also referred to the decision of the Hon'ble Supreme Court of India in the case of Sanghian Pandian Rajkumar -vs- Central Bureau of Investigation & Anr., reported in (2014) 12 SCC 23, particularly para 22 thereof. The said para is quoted below for the sake of convenience.

"22. In the light of the details, allegations in the charge- sheet filed before the court, many of the co-accused were Page No.# 8/12

granted bail by the trial court/High Court and this Court and of the fact that both the appellants are in custody for nearly 7 years pending trial and also in view of the fact that it would not be possible for the special Court to conclude the trial within a reasonable period as claimed by learned ASG, we inclined to consider their claim for bail."

This order was passed on a bail application. However, the para 23 of the said judgment, quoted below, would reveal that the case relevant in the aforesaid decision was not same with the instant case, on facts. In the instant case, copies have already been furnished, charge framed and the case has been posted for recording of evidence whereas in the case involved in the above judgment of the Hon'ble Supreme Court of India, the records were directed to be transferred from the original court at Gujarat to the Special Court, CBI at Mumbai with direction to complete the translation work. Therefore, evidently, on facts, the decision rendered in the aforesaid case is not on similar facts with the case at hand.

"23. In the light of the statement made by learned ASG, we direct that all the materials pertaining to these cases which are lying in the original Court at Gujarat as well as the records relating to the same under the custody of the High Court of Gujarat, if any, be transferred to the Special Court, CBI, Mumbai within a period of one month from the date of receipt of copy of this order. After receipt of all the required materials, the Special Court, CBI at Mumbai have to get the relevant documents alone translated within a period of three months thereafter. The Special Court, CBI at Mumbai is directed to take the assistance of the Registrars of the High Courts of Bombay and Gujarat for completion of the translation work as fixed. By this order, we also direct the Registrars of the Bombay and Gujarat High Page No.# 9/12

Courts to render all assistance to the Special Judge, CBI Mumbai for early completion of the translation work within the time stipulated by this Court. After receipt of the required material and completion of translation work, we direct the special Judge to take all endeavor for early completion of the trial."

11. Mr. Bora, learned senior counsel for the petitioner has also referred to the decision of the Karnataka High Court in the case of Santosh Parashuram Agasimani -vs- State of Karnataka , reported in (2017) 4 KCCR 3274 and particularly para 15 thereof. The said para is quoted below for the sake of convenience.

"15. The Apex Court in the matter of Lt.Col.Prasad Shrikant Purohit -vs- State of Maharashtra reported in 2017 SCC OnLine SC 962 at paragraphs-24 and 25 observed thus:

"24. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.

25. At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused".

The fact of the case at hand is not same with the facts of the case Page No.# 10/12

involved in the judgment rendered by the Hon'ble Karnataka High Court in the case of Santosh Parashuram Agasimani (supra), and rather, on facts the same do not appear to be applicable with the instant case. So far the principle laid down in the above quoted para is concerned, the magnitude of the offence allegedly committed by the accused persons including the petitioner needed to be considered taking into account the broad picture emerged during the investigation of the case.

12. As against the submissions made by Mr. Bora, learned senior counsel for the petitioner, Mr. Phukan, learned Public Prosecutor has submitted that the nature of the case is such that it cannot be treated as a case of general nature and rather it is an offence involving corruption as well as financial transactions for leaking question paper of the examination for recruitment of 597 Superintendent of Police by the Government of Assam by holding the examination which was subsequently cancelled because of leak of question papers of the examination. He has also submitted that there are clear materials in the record, particularly from the statement of Saurab Kr. Das that the present petitioner has leaked the question paper of the examination to him and thereafter, on sitting in his examination next day, he found the question paper leaked to him to be the same with the question paper of the examination, involved in this case.

13. While framing charge, the learned court below has also recorded that from the materials, it appears that the petitioner received the leaked question paper through a secret e-mail created for this purpose and, he, in turn, contacted candidates and provided leaked question papers and also conducted mock test. It has also been indicated in the said order framing charge that the material collected against the petitioner are sufficient to presume that he committed Page No.# 11/12

offences punishable under Sections 120(B)/420 of the IPC.

14. Mr. Phukan also vehemently argued that the offences committed by the petitioner were serious in nature and that the societal interest demands that the petitioner should not be enlarged on bail. According to Mr. Phukan, about 66,000 (sixty six thousand) candidates had applied for the recruitment to the posts of SI of police, but the illegal activities of the conspirators had deprived the candidates from appearing in the said recruitment examination as the same was cancelled on 20.09.20 (the scheduled date of the examination) in view of leaking out of the question papers which caused public outrage. In order to bring home his argument, Mr. Phukan referred to the case of Chandrakeshwar Prasad v. State of Bihar, reported in (2016) 9 SCC 443, wherein the Hon'ble Supreme Court observed and held as follows:

"10. This Court in Rajesh Ranjan Yadav v. CBI [Rajesh Ranjan Yadav v. CBI, (2007) 1 SCC 70 : (2007) 1 SCC (Cri) 254] balanced the fundamental right to individual liberty with the interest of the society in the following terms in para 16 thereof: (SCC p. 79) "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."

15. However, at this stage, Mr. Ali, the learned counsel for the petitioner, has Page No.# 12/12

placed before this Court a copy of the order, dated 27.05.2022 passed by the learned court below fixing the case on 01.06.2022, i.e., today passing order on three bail petitions of three different accused persons, charge-sheeted in the instant case. He has although not provided the order passed on the aforesaid bail application yet he has submitted that three accused persons have been granted bail by the learned court below.

16. Taking such submission made by Mr. Ali, learned counsel for the petitioner into account, this Court is of the view that in the given situation, it would be appropriate to direct the petitioner to approach the learned court below with an appropriate application for bail which the learned court below shall consider on its own merit. At the cost of repetition, this Court would like to state that this order directing the petitioner to approach the learned court below is passed solely on the basis of the submission made by Mr. Ali, learned counsel for the petitioner, as indicated above.

17. With the above observations and directions, this petition stands disposed of.

JUDGE

Comparing Assistant