Mir Alfaz Ali DECISION
Mir Alfaz Ali, J.
1. This is an application u/s. 439 Cr.P.C. praying for bail of the petitioner Dr. Basanta Kumar Doley, who has been in detention in connection with Bhangagarh P.S. Case No. 159/2017 u/s. 120(B)/420/468 of the IPC read with Section 7/13 (1) (a) (d) (iii) (2) of the Prevention of Corruption Act.
2. Mr. Z. Kamar, learned senior counsel for the petitioner and Mr. P.P. Baruah, learned Addl. Public Prosecutor for the State were heard. Also perused the case diary.
3. On 17-08-2017 one Bedanta Bikash Das lodged an FIR with the Bhangagarh Police Station alleging that he appeared in the Competitive Exam conducted by the Assam Public Service Commission for the post of Agricultural Development Officer (ADO) in the year 2014. The Chairman of the Assam Public Service Commission (in short APSC) Sri Rakesh Paul and his associate one Mr. Mushoraf Hussain demanded Rs. 15 lakhs as bribe. Accordingly, the informant paid Rs. 50,000/- to the Chairman of the APSC Sri Rakesh Paul at Satsang Bihar, Bhangagarh as advance. But he could not succeed in the exam as he failed to fulfill the demand of money made by said Rakesh Paul. Later on, he came to know from the information, supplied by the APSC on his application under the RTI Act, that there was anomalies in the marks given to the candidate in the viva voice test. In two replies given by the APSC, different marks were shown against the same candidate. On the basis of the said FIR 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 a supplementary charge-sheet was filed on 12-07-2018 against the present petitioner, who was a member of the APSC. The petitioner was arrested on 17-05-2018 and since then he has been in detention. In the meantime, prosecution sanction has also been accorded for prosecuting the present petitioner as well as the Chairman of the APSC, Mr. Rakesh Paul.
4. Learned counsel for the petitioner Mr. Z. Kamar submitted that the petitioner has been in detention for about 10 months and the trial has not yet started, even the cognizance has not been taken by the learned trial court and therefore, pray for releasing the petitioner on bail. It was also contended, that the petitioner is an old man of 64 years and is an ailing person, and as such, requires better medical treatment, which may not be possible in the custody.
5. Referring to an averment made in the supplementary charge-sheet, submitted against the present petitioner, more particularly, clause 17.7, Mr. Kamar contends that investigation was yet to be completed and therefore, the charge-sheet submitted against the petitioner could not be considered a final report as contemplated u/s. 173 (2) of the Cr.P.C., and as such, petitioner is also entitled to default bail due to failure of the police to submit charge-sheet within the statutory period u/s. 167 (2) of the Cr.P.C. In support of his submission, Mr. Kamar placed reliance on a decision of Allahabad High Court in Crl. Misc. Case 4621/2010 Bhartendu Pratap Singh -VS- State of U.P. and Anr.
6. In view of submission made by the learned counsel, let me address at the outset, the contention of Mr. Kamar, regarding the entitlement of the petitioner to get default bail. Clause (a) (i) (ii) of the proviso to Section 167 (2) Cr.P.C. provides, that if the investigating agency fails to complete the investigation within the statutory period of 60 days or 90 days, as the case may be, from the date of arrest of the petitioner, the accused become entitled to bail by right of default. Section 173(1) of the Cr.P.C. provides that every investigation under Chapter XII shall be completed without unnecessary delay. Sub-section (2) of Section 173 Cr.P.C. provides that as soon as the investigation is completed, the officer-in-charge of a police station shall forward to the magistrate empowered to take cognizance of the offence on the police report, a report in the form, prescribed by the State Government. Section 173 (2) also provides the particulars, which a police report has to contain. Therefore, from a combined reading of Section 167 (2) and 173 (i) & (ii), it is apparent that if the police failed to submit a final report in terms of Section 173(2) of the Cr.P.C within the statutory period of 90 days or 60 days as the case may be, the accused becomes entitled to bail as a matter of right.
7. In Bhartendu Pratap Singh's case dealt by the Allahabad High Court, a preliminary charge-sheet was filed, wherein it was specifically stated that the investigation was not yet completed. On the basis of the said preliminary charge-sheet, learned trial court took cognizance and the order of the magistrate taking cognizance on the basis of such preliminary charge-sheet was put to challenge. On the facts of the said case and the preliminary charge-sheet filed therein, the Hon'ble Allahabad High Court came to a finding, that such preliminary charge-sheet cannot be considered as a charge-sheet in terms of Section 173 (2) of the CrPC and no cognizance can be taken on such preliminary charge-sheet. The Hon'ble Allahabad High Court while setting aside the order of the learned Magistrate taking cognizance on the basis of a preliminary charge-sheet held as under:-
"In light of the facts of the present case, I am of the view that since the charge sheet is incomplete charge sheet, it is not the stage for the learned Magistrate to take cognizance of offence on the basis of incomplete charge sheet, therefore, I hereby quash the order impugned dated 9th of November, 2010, passed in Case No. 13126 of 2010, arising out of Criminal Case No. 639 of 2010. However, since the investigation is still continuing on the evidences, which have been disclosed in the said incomplete charge sheet, I hereby observe that as soon as it is completed and police report is filed before the learned Chief Judicial Magistrate, he shall be at liberty to take cognizance of offence on the basis of police report."
8. The contention of the learned Addl. Public Prosecutor was that in the present case, the supplementary charge-sheet submitted against the petitioner was not a preliminary charge-sheet and that whether a charge-sheet is a final report in terms of Section 173 (2) of the Cr.P.C. has to be considered on the basis of the overall materials collected and produced before the court along with the report and not on the basis of an isolated statement or averment made in the charge-sheet. To buttress his submission, learned P.P. placed reliance on a decision of the Apex Court in Abdul Azeez P.V. and Ors. -Vs- National Investigating Agency(NIA) MANU/SC/1032/2014 : 2014 16 SCC 543. The factual matrix of the case in Abdul Aziz (supra) was that after completion of the investigation charge-sheet was filed by NIA on 19-10-2013, which inter alia stated the allegations against each of the petitioners and the materials on the basis of which such allegations were leveled. It also stated in paragraphs 18.2 and 18.3 that requisite sanction under Sections 18 and 18A of the UAPA was accorded by the Ministry of Home Affairs, Government of India, vide order dated 17.10.2013 and also that sanction under Section 7 of the Explosive Substances Act was accorded by the District Magistrate, Kannur vide his order dated 15.10.2013. In paragraph 18.6 of the charge- sheet it was stated to the following effect:
"Foreign bank transaction details are to be collected and the call Data Records have to be further analysed. Records pertaining to Thanal Foundation Trust need to be collected and verified. Hence, further investigation is inevitable and is in progress. Additional list of witnesses, additional statements of witnesses and additional list of documents will be filed in due course. Hence it is also prayed that further investigation u/s. 173(8) Cr. P.C. may kindly be permitted."
9. In view of above averment in the charge-sheet, a plea was raised before the trial court, that the charge-sheet filed on 19-10-2013 was not a final report as contemplated u/s. 173 (2) of the Cr.P.C., and as such, accused was entitled to default bail. The plea, which was rejected by both the learned trial court as well as the Hon'ble High Court and eventually an appeal was preferred before the Apex Court. The Apex Court dismissing the appeal, upheld the view taken by the High Court and the trial court, and observed in paragraph 4 of the judgment as under
"4. Having gone through the charge-sheet, we are not persuaded to take a different view. The materials adverted to show that it was a final report on the facets investigated into by the investigating agency. Furthermore, the requisite sanctions as required under Sections 18 and 18A of the UAPA and so also under Section 7 of the Explosive Substances Act were also accorded by the concerned authorities. The charge-sheet so filed before the learned Special Court was complete in all respects so as to enable the learned Special Court to take cognizance in the matter. Merely because certain facets of the matter called for further investigation it does not deem such report anything other than a final report. In our opinion Section 167(2) of Cr.P.C. stood fully complied with and as such the petitioners are not entitled to statutory bail under Section 167(2) of Cr. P.C."
10. Learned P.P. would further submit, that the final report submitted u/s. 173 (2) CrPC is an intimation to the Magistrate that sufficient evidence as to the commission of offence has been collected to enable the Magistrate to take cognizance and to proceed with the enquiry and trial of the case. If the charge-sheet contains all necessary facts to enable the Magistrate to take cognizance, such final report or charge-sheet cannot be discarded only because of some facets of the matter requires further investigation. Learned P.P. also placed reliance on paragraph 76 of the Constitution Bench Judgment of the Apex Court in K. Veeraswami - Vs- Union of India and Ors., MANU/SC/0610/1991 : (1991) 3 SCC 655, which reads as under:-
"76. The charge sheet is nothing but a final report of police officer under Section 173(2) of the Cr.P.C. The Section 173(2) provides that on completion of the investigation the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government and stating therein (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom (e) whether the accused has been arrested; (f) whether he had been released on his bond and, if so, whether with or without sureties; and (g) whether he has been. forwarded in custody under Sec. 170. As observed by this Court in Satya Narain Musadi and Ors. v. State of Bihar, MANU/SC/0234/1979 : [1980] 3 SCC 152 at 157; that the statutory requirement of the report under Section 173(2) would be complied with if the various details prescribed therein are included in the report. This report is an intimation to the magistrate that upon investigation into a cognizable offence the investigating officer has been able to procure sufficient evidence for the Court to inquire into the offence and the necessary information is being sent to the Court. In fact, the report under Section 173(2) purports to be an opinion of the investigating officer that as far as he is concerned he has been able to procure sufficient material for the trial of the accused by the Court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5). Nothing more need be stated in the report 'of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the accused at a later stage i.e. in the course of the trial of the case "adducing acceptable evidence."
11. In the present case apparently the charge sheet submitted against the petitioner is the supplementary charge sheet u/s. 173 (8) of the Cr.P.C. On the basis of the FIR lodged by the informant, police completed the investigation and initially submitted the charge sheet against the co-accused Rakesh Paul (chairman of the APSC) and another and having considered the broad spectrum of the conspiracy involved in the case, police continued with further investigation with the permission of the court and the supplementary charge sheet against the petitioner has been filed in terms of Section 173 (8) of the Cr.P.C Therefore, the supplementary charge-sheet filed against the petitioner cannot be considered in isolation, without taking into consideration the first charge sheet, which was submitted after completion of the investigation, inasmuch as, supplementary charge-sheet is in addition to the original charge-sheet, providing additional materials. Therefore, in order to consider, whether the charge-sheet against the petitioner u/s. 173 Cr.P.C.(2) was a final report or complete charge-sheet, the court has to take into account the supplementary charge-sheet along with the original charge-sheet. Perusal of the supplementary charge-sheet submitted against the petitioner shows that, it complies with all the requirement of Section 173 (2) Cr. P.C. However, the investigating officer in the supplementary charge sheet made an averment, that "investigation in respect of the instant case against arrested accused Sri Rakesh Kr. Paul, Syed Mosaraf Hussain and Sri Basanta Kr. Doley is yet to be completed as the candidates selected by the ADO in the APSC Exam through illegal way and making alteration/anomalies in marks sheets of candidates are to be further examined thoroughly and joint interrogation on the arrested accused persons who are to be arrested in connection with the case."
12. The charge sheet clearly indicated the evidence collected against the accused petitioners and the offences alleged against him as well as the documents and materials collected. Therefore, taking into account both the charge-sheet and the materials produced therewith, such charge sheet cannot be considered to be a preliminary charge sheet or a report not coming within the purview of Section 173 (2) Cr.PC. It is also evident that the prosecution sanction has already been accorded against the present petitioner and the other co-accused Rakesh Paul. Therefore, notwithstanding the fact, that there was an averment made in the charge-sheet that certain facets of the matter requires further investigation, that does not make the charge sheet in the instant case anything less than a final report u/s. 173 (2) CrPC, inasmuch as, the charge sheets otherwise fulfilled all the requirements of a report as contemplated u/s. 173 (2) CrPC. In view of the above, I have no hesitation in my mind to hold that the charge-sheet against the petitioner is nothing but a final report u/s. 173 (8) read with Section 173 (2) CrPC. Since such charge-sheet was filed before the statutory time of 60 days, there is no question of default bail.
13. The second limb of submission of the learned senior counsel for the petitioner Mr. Kamar is that the petitioner has been in custody for about 10 months and the trial is yet to be completed and therefore, the petitioner may be granted bail, inasmuch, he cannot be confined in jail for an indefinite period of time. Learned sr. counsel Mr. Kamar placed reliance on a decision of the Apex Court in Sanjay Chandra VS- CBI reported in MANU/SC/1375/2011 : (2012) 1 SCC 40, where the Apex Court observed as under:-
"43. It is not in the interest of justice that the accused should be in jail for an indefinite period of time. No doubt the offence alleged against the appellant is a serious one in terms of alleged huge loss to the public exchequer, that by itself should not deter us from enlarging the appellant on bail, when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or temper with evidence. We do not see any good reason to detain the accused in custody that too, after the completion of the investigation and filing of the charge-sheet."
14. Learned Public Prosecutor placing reliance on a decision of the Apex court in Dipak Subhashchandra Mehta-VS- Central Bureau of Investigation MANU/GJ/1409/2010 : 2012 (SC) 949, contended, that length of detention cannot be a ground for bail in all cases. The Apex Court held in Dipak Subhashchandra Mehta case 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."
15. Prolonged incarceration in jail certainly may be a ground for granting bail in a particular case, but then, it all depends on the facts and circumstances of the case. 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 a recent case of Virupakshappa Gouda & Anr. -VS- The State of Karnataka & Anr. MANU/SC/0344/2017 : (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.""
16. In the present case, the petitioner is 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 and other office bearer was that they have failed to discharge their constitutional duty and resorted to corruption for providing job for cash, depriving the deserving, genuine and bona fide candidates. The case diary transpires that sufficient materials were collected by the investigating agency to make out a strong prima facie case against the petitioner. Though charge-sheet has been filed against the petitioner, considering the larger conspiracy involved in the case, investigating agency is still continuing with further investigation to unearth certain facets of the matter. Therefore, learned Public Prosecutor vehemently resisting the prayer for bail, contended that enlargement of the accused on bail will derail the further investigation.
17. Learned senior counsel, Mr. Z. Kamar submits that on the pretext of further investigation, one cannot be detained in jail for indefinite time jeopardizing his personal liberty. 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 MANU/SC/1021/2010 : (2011) 1 SCC 694, commenting on the personal liberty visa-a-vi social interest observed that "84. Just as liberty is precious to an individual, so is the society's 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.
18. The offence alleged against the petitioner and the material collected in support thereof, prima facie demonstrates, that the petitioner by entering into criminal conspiracy to provide job for cash and such act of the petitioner has shattered the trust and faith reposed on him by the society and the state. The petitioner, by such alleged criminal activity not only betrayed the nation and society, but also committed fraud on the Constitution by deviating from their 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 obviously grave and serious. Therefore, "such socio-economic offence, which is a class apart", cannot be equated with other usual offences or viewed with the same approach while considering bail in case of any other offence committed by any individual. The Apex Court, in State of Bihar and Anr. -Vs- Amit Kumar @ Bachcha Rai reported in MANU/SC/0515/2017 : (2017) 13 SC 751, dealing with the socio-economic offences held that " 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. Usually socio-economic offences has deep rooted conspiracy affecting the moral fiber of the society and causing irreparable harm needs to be considered seriously."
19. It is apparent from the case diary that in spite of filing of the charge-sheet, the police is continuing with the further investigation. The petitioner being a member of the Assam Public Service Commission, is alleged a key conspirator and an influential person. Therefore, having regard to the standing and position of the accused, apprehension of the learned P.P., that enlargement of the petitioner, may derail the process of further investigation by influencing the witness or tempering with the evidence, cannot be totally ruled out. Therefore, having considered the gravity of the offences involved in this case, which constitutes a class apart and the potential of the petitioner to influence the witnesses, or to temper evidence, I am not inclined to grant bail to the petitioner at this stage. Accordingly, the bail application stands rejected.
20. As regards the submission made by the learned counsel that the petitioner has some health issue, it is directed that the jail authority shall provide adequate medical assistance to the petitioner, if the required facilities are not available in the Central Jail, the jail authority can also consider providing appropriate treatment at the medical college, if so advised by the doctors.
21. The bail petition stands disposed of. Send down the case diary.
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