Rumi Kumari Phukan, J.:— Both above bail applications preferred by the petitioners, Rakesh Kumar Paul and Basanta Kumar Doley, relates to same Bhangagarh PS Case No. 159/2017, under Sections 120(B)/420/468 IPC, read with Sections 7/13(1)(a)(b)(iii)(2) of the PC Act. Hence, both petitions are taken up together for disposal by this common order.
2. Heard Mr. D K Mishra, learned Senior Counsel, appearing for and on behalf of the petitioner, Rakesh Kumar Paul and Mr. F. Khan, learned counsel, appearing for the petitioner, Basanta Kumar Doley. Also heard Mr. P P Baruah, learned Public Prosecutor for and on behalf of the State, assisted by Ms. M Phukan, learned Additional Public Prosecutor.
3. The petitioner, Rakesh Kumar Paul, was the Chairman of the Assam Public Service Commission (hereinafter, in short “APSC”) and Dr. Basanta Kumar Doley was a member of the APSC. Be it mentioned here that the bail applications of Rakesh Kumar Paul was rejected by this Court on several occasions (5 times) as well as by the trial Court. The Hon'ble Supreme Court also rejected the SLP filed by the accused, R K Paul. Similar is the case of other petitioner, Dr. Basanta Kumar Doley, whose bail petition was rejected by this Court as well as the trial Court, on several times.
4. For a brief appraisal of factual matrix, it can be referred that pursuant to the FIR filed by one Bedanta Bikash Das, on 17.08.2017, that although he cleared the written examination for the post of Agricultural Development Officer (in short, ADO), but he failed in the viva-voce as he could not fulfill the demand of Rs. 15 lacs as gratification for clearing the viva-voce as demanded by the Chairman, APSC, Rakesh Kumar Paul and his agent, Musaraf Hussain. It is alleged that he paid an amount of Rs. 50,000/- as an advance, but as he could not manage the remaining amount, another candidates were appointed by manipulation, which reflects from the RTI report of one of the candidates, namely, Mrigen Haloi, bearing Roll No. 0000334, whose marks in viva-voce were shown differently in different RTI replies.
5. Prior to the present case, accused petitioner, Rakesh Kumar Paul was arrested on 04.11.2016, in connection with Dibrugarh PS Case No. 936/2016 on similar accusation and after rejection of the bail by this Court, the petitioner was granted default bail by the Hon'ble Supreme Court on 16.08.2017 and on the next very day, on the basis of the present FIR pertaining to Bhangagarh PS Case No. 159/2017 dated 17.08.2017, he was shown arrested and he is behind the bar accordingly.
6. Submission on behalf of Rakesh Kumar Paul-
7. The thrust of the argument of the learned Senior Counsel, Mr. D K Mishra, was primarily confined to the following grounds:—
Ø The instant FIR was filed after 2 years of the alleged incident, without there being any explanation about delay and the FIR was hurriedly registered in order to prevent the accused from release on bail, which was granted by the Hon'ble Supreme Court, vide order dated 16.08.2017, reported in ((2017) 15 SCC 67). Paragraph-49 of the judgment reads as follows:—
49. However, we make it clear that this does not prohibit or otherwise prevent the arrest or re-arrest of the petitioner on cogent grounds in respect of the subjects charge and upon arrest or re-arrest, the petitioner is entitled to petition for grant of regular bail, which application should be considered on its own merit. We also make it clear that this will not impact on the arrest of the petitioner in any other case.
8. It is submitted that by taking advantage of the aforesaid observations, accused person has been arrested after the order, but unfortunately, the decision of the Hon'ble Supreme Court in Uday Chand v. Sk. Md Abdullah; reported in (1983) 2 SCC 417, has not been placed before the Hon'ble Supreme Court at the time of passing of the bail order on 16.08.2017. It is contended that it was the bounden duty of the prosecution to disclose about any other case under investigation against the accused and for making no disclosure, subsequent arrest of the accused is illegal.
Ø Relying on the decision rendered in the case of Panalal Damodar Rathi v. State Of Maharashtra ., (1979) 4 SCC 526, it has been submitted that the informant, who has paid the bribe should be prosecuted for the offence under Section 165 A IPC, which is a substantive offence and he should be treated as an abettor for the offence under Section 12 of the Prevention of Corruption Act, 1988.
Ø It is assailed that the names of the informant and his companion are not mentioned in the charge sheet submitted, but a general reference has been made in respect of appointment of ADOs in illegal manner. Different clauses in the charge sheet have been referred into in support of the contention that allegation of the informant is not enquired into nor any supporting evidence.
Ø Referring to the decision of Amitbhai Anil Chandra v. CBI; (2013) 6 SCC 348 and Lalita Kumari v. Government of UP; (2014) 2 SCC 1, it is submitted that without registering the second FIR, the investigation could have been done, but IO has misdirected the investigation only to implicate large number of candidates and to facilitate the re-arrest of the accused persons.
Ø It has been pointed out that the other set of officers have been released on pre-arrest bail without any objection from the prosecution side and that being so, it can be inferred that investigation is smoothly completed and further detention of the accused is not at all warranted. Reliance has been placed on the decision of State of Bihar v. Amit Kumar; (2017) 13 SCC 751, which relates to selection of the students in Bihar Intermediate Examination in an illegal manner, where the kingpin of the scam was granted bail after 8 months of detention, and it is submitted that as in the present case, the accused is in detention for more than 3 years 8 months, he should be granted the privilege of bail. Further, it is also stated that in view of the nature of accusation, the offence under Section 7 of the PC Act is only attracted and offence under Section 13, PC Act is not attracted and the accused is entitled to the benefit under Section 436 A CrPC as he has completed half of the sentence under Section 7 of the PC Act, which is upto 7 years.
Ø Another submission from the petitioner's side is that in terms of the Section 114(b) of the Evidence Act, statement of approver (accused No. 9) is not reliable as there is no supporting evidence, whereas, the prosecution has relied on the evidence of the approver, to implicate the present accused persons, which is bad in law.
Ø Referring to the decision of this Court in Deepak Khanikar v. State of Assam; (2018) 4 GLT 859, whereby this Court has granted bail to the other set of accused persons, it is submitted that same privilege should be granted to the present accused persons. Further, it has been submitted that the cases so far relied by the prosecution, like State of Bihar v. Amit Kumar; (2017) 13 SCC 751, Siddharama Satlingappa v. Maharashtra; (2011) 1 SCC 694, (as referred, in Samedur Rahman-co-accused) case, cannot co-relate with the present case as those cases relates to the offence under Section 409 IPC along with other cases punishable upto life, whereas, the present case is of different nature, punishable only upto 7 years. Relying on a recent decision of Hon'ble Delhi High Court in Bail Application No. 1353/2020, dated 23.07.2020, it has been submitted that in the said case, the Delhi High Court has granted bail to the accused in an economic offence of high magnitude, involving defraud of crores of rupees under Sections 3/4 of the Prevention of Money Laundering Act, 2002, after 9 months of his arrest.
Ø Last submission is to consider the bail on health ground as it is stated that the accused is suffering from diabetes and hypertension, along with enlarged prostate and that he has been advised for surgery. Further, due to outbreak of pandemic of COVID-19 in the State and the guidelines issued by the Government, further stay of the accused in Central Jail, without proper maintenance of social distancing is stated to be detrimental to his health.
9. Submission on behalf of Dr. Basanta Kumar Doley : -
10. Mr. Khan, on behalf of the accused, Dr. Basanta Doley, also raised similar contention as that of the learned Senior Counsel, Mr. Mishra, as about length of detention and other following grounds : -Ø The petitioner was arrested in connection with Dibrugarh PS Case No. 956/2016 on 28.11.2016 and his bail was granted on 31.08.2017, in BA No. 338/2017 and subsequently, he was arrested on 17.05.2018 (after 8 months), in connection with the present case, although there is no allegation whatsoever regarding violation of the conditions of the bail granted or misuse of the conditions imposed. He is still ready to cooperate with the investigation in the event of release on bail with any condition.
Ø It is contended that all other co-accused A 10 to A 44 (all officials) have already been granted bail and they are still working and as such, there can be no any embargo in enlarging the accused on bail in view of his length of detention, which is 2 years 2 months (above). Further, the issue in the earlier case was much wider than the present case, but he has been granted bail in the earlier case and allegation in both the cases are similar, i.e., giving appointment to undeserving candidates (both the cases relate to economic offences and their guilt is yet to be proved).
Ø Further, it is contended that objection of the State respondent against bail is not sustainable as the respondent could not show a single ground for further custodial detention of the accused for the purpose of investigation. Even the submission of the respondent that they may require the petitioner for last interrogation in view of receipt of forensic report recently on 18.05.2020, the petitioner is still ready to cooperate with the investigation and the Court can grant bail by imposing certain conditions.
Ø It is stated that the past conduct of the petitioner while on bail deserves to be considered as during this period, there is no allegation of hampering and tampering the witnesses or the investigation and even after getting interim bail for 4 weeks to perform the last rites of his deceased son, he surrendered before the authority in compliance of the order.
Ø Further, the petitioner has already retired from service and as such, there can be no apprehension of hampering and tampering the evidence, more so, while all evidence are in documentary form and the investigation has already been completed and 6 nos. of charge sheet have been filed and only the prosecution/State respondent required to interrogate the petitioner in view of the last forensic report received on 18.05.2020 and the same can be done even if the petitioner is on bail.
Ø The objection of the IO that due to the COVID-19, he is unable to carry out the last part of investigation, cannot be entertained at the cost of the long detention of the accused petitioner. Reliance has been placed on a decision rendered in the case of Y.S. Jagmohan Reddy v. CBI; (2013) 7 SCC 439, and Nimmagadda Prasad v. Central Bureau Of Investigation .; (2013) 7 SCC 466, wherein, the Hon'ble Apex Court after being satisfied about further investigation with regard to vital aspect, bail has been rejected, but while doing so, have fixed a time limit for completion of the investigation.
Ø By filing the interlocutory application, as mentioned above, the petitioner has prayed for interim bail on health ground that the Guwahati Central Jail has been infected by COVID-19 and a report has also been forwarded by the jail authority as directed by this Court, which reflected that large number of inmates (444) have been infected by COVID-19 and 200 bedded COVID hospital has been set up inside the jail premises and two numbers of 108 ambulances have been kept as standby and 25 numbers of bed have been reserved in the GMCH for COVID patients. In view of magnitude of spread of COVID-19, it will be a threat to remain inside the jail on the part of the accused person, who is a vulnerable person (as per Government notification), being aged about 65 years.
11. Status Report vis-à-vis bail objection submitted by the IO:
Ø It is submitted that 6 charge sheets (including 5 supplementary charge sheets) against 44 accused persons have been filed before the Special Judge, Assam. The prosecution sanction against the accused R K Paul have been obtained and submitted, but as against accused Basanta Kumar Doley, Samedur Rahman and Binata Rynjah, sanction has been awaited. There is likelihood of hampering and tampering of the investigation in the event of granting bail at this stage.
Ø During the course of further investigation, expert members of interview boards were examined and on the basis of their statements, APSC was requisitioned to submit number of information and documents for the purpose of investigation and accordingly, APSC provided the required material on 04.12.2019, 06.12.2019 and the same was sent to the Director of Forensic Science, Kahilipara on 21.12.2019 and in result, they have stated that-“the marks awarded by the Chairman Member, APSC in column of marks/grade “general bearing” available in Exhibit-A could not be compared with the table of alteration given in the earlier opinion by this Directorate. However, for an opinion, original copies of marksheets for the post of ADO under Agriculture Department are needed”. Therefore, after receiving the exhibits from the Court of Special Judge, Assam, the same was sent for forensic examination on 16.02.2020 and the forensic report has been received from FSL as on 18.05.2020.
Ø Aforesaid FSL Report reveals that there are various enhancements of marks of the selected candidates in their marksheets used at the time of interview by means of eraser, addition etc. and corresponding reducing marks of other candidates with a view to select their favoured candidates by Rakesh Paul, Basanta Kumar Doley, Samidur Rahman, Binata Rynjah. In view of such development, it is desired to investigate that aspect of the matter and to interrogate the Chairman and Members of the APSC, along with the experts to unearth the truth. But due to ongoing COVID-19 pandemic, the same could not be done and a prayer has been made for extension of 8 weeks to submit final FF to the trial Court.
Ø For the aforesaid reasons, further custodial detention of the accused persons are required for the purpose of interrogation and their release may hamper to conclude the investigation in due manner. As the accused persons are very clever, intelligent and desperate in nature, their release on bail at this crucial stage will be a clog in the investigation. They may influence probable witnesses, which may corroborate their misdeed. This set of accused persons, comprising the Selection Board are the prime perpetrators of the offence, who by unfair practice, selected the candidates in lieu of cash.
Ø These accused persons have committed a heinous crime, which is against the State and has lowered the reputation of the APSC as well as demoralized meritorious candidates of the State, who are deprived of getting jobs despite their merit. The custodial interrogation of the accused persons has corroborated the modus operandi, the extent of racket run by them with other associates in providing jobs of Government of Assam conducted by APSC against transaction of money, but not on merit.
12. Report on the measures taken for protection of jail inmates:—
Ø Apart from providing regular measures in terms of the Government notifications, jail authority has provided/arranged for thermal scanning, sanitizers and also regular sanitization through GMC has been done in the jail premises.
Ø The old aged and ill prisoners are kept under strict vigilance of jail doctor, who takes stock of each prisoner daily.
Ø Swab test of the prisoners has been made on 04.07.2020 and out of total 1223 inmates, 444 prisoners are found to be positive. As a preventive measure, 200 bedded COVID hospital has been set up inside the jail premises in collaboration of district administration with arrangement of 108 ambulances and 25 numbers of bed have been reserved in the GMCH, in case of urgency.
Ø Jail Roll Call and Food Distribution is made in staggered manner to avoid gathering of prisoners in one place at same time.
Ø So far as regards the status of Basanta Kumar Doley, it is submitted that his swab test has been conducted and the result is negative. At present, he is staying with other prisoners with other Corona-negative prisoners and he is taking normal diet. He returned to jail after interim bail.
13. An affidavit has also been submitted by the learned Additional Public Prosecutor, as directed by the Court, as regards status of the case and their response against the prayer of interim bail, as well as, the measures taken by the jail authority during the COVID-19 period, which tallied with the status report submitted by the IO. Moreover, referring to the earlier order of this Court, rejecting the bail order of Samedur Rahman (who is similarly situated to the present accused person, Basanta Doley, being Member of the APSC), it has been submitted that status of present accused, Basanta Doley, is similar to the said co-accused and his prayer for interim bail as well as the regular bail cannot be considered for the purpose of investigation as stated in the status report. Decisions rendered in Siddharama Satlingappa v. Maharashtra; (2011) 1 SCC 694; Nimmagadda v. CBI and P Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24, Y.S. Jaganmohan Reddy v. CBI; (2013) 7 SCC 439, Rohit Tendon v. Directorate of Enforcement, (2018) 11 SCC 46; State of Gujarat v. Mohanlal Jitamalji, (1987) 2 SCC 364, have been referred, wherein Hon'ble Apex Court observed that the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The Court while granting bail has to keep in mind the nature of accusation, nature of evidence in support thereof, the severity of the punishment, which conviction will entail, the larger interest of public/State and other similar considerations.
14. Submission of the learned Public Prosecutor:—
Ø Bail Application of the accused RK Paul was rejected by this Court on 5 occasions and the Hon'ble Supreme Court also rejected the SLP preferred by the petitioner without interfering the order passed by this Court. The learned trial Court also rejected the bail prayer with detail order. Likewise, Dr. Basanta Kumar Doley's bail application was rejected by this Court on several occasions as well as the trial Court. Both applications being successive bail petitions, the petitioners are required to show the new ground or changed circumstances for appreciation of the matter afresh. But the petitioners have failed to show any new ground or changed circumstances.
Ø In both the petitions, the ground of length of detention as well as filing of number of charge sheets, and that some of the co-accused have been granted bail have been raised and these are the grounds on earlier bail applications also. The submission that the charge sheet, which has not reflected all details about the matter of informant and his companion, implicating specific role played by the accused persons, no mention of names and numbers of meritorious candidates deprived of appointment etc. etc., is not sustainable, inasmuch, as, prima facie case is made out against both accused persons from the different charge sheets and the materials collected during the investigation (as per the Case Diary) about receiving of illegal gratifications, manipulating the marks obtained by the candidates for illegal gains.
Ø The decisions relied by the petitioners' side is not relevant in the present case, which were rendered on different facts and circumstances. Moreover, point raised in both the petitions were earlier dealt with by this Court on several occasions and deserves no consideration afresh.
Ø The only new submission that while passing the default bail order to the accused Rakesh Paul dated 16.08.2017, the decision of Uday Chand (supra) was not placed before the Hon'ble Supreme Court, is not at all relevant in the present case, inasmuch, as, at the time of passing of order as on 16.08.2017, there was no investigation/case pending against the accused. The present FIR was filed on 17.08.2017 and pursuant to which, he was shown arrested. There was no any illegality for effecting arrest on the basis of new FIR and particularly so, the Hon'ble Apex Court in Paragraph-49 of the judgment has also given the liberty to the prosecution for re-arrest of the accused person on cogent grounds.
Ø Further, the decision relied by the petitioner R K Paul, rendered in Vir Prakash Sharma v. Anil Kumar Agarwal; (2007) 7 SCC 373 and (2013) 6 SCC 348; Amitbhai Anil Chandra Shah v. CBI (supra), are not relevant in the present case, as the instant case is altogether different from the facts and circumstances of the cases referred.
Ø So far as the accused, Basanta Kumar Doley is concerned, it is submitted that the accused person is very clever, intelligent and desperate in nature and he along with other accused persons entered into the conspiracy to collect bribes from the candidates for selecting them to the post of ADO by depriving the deserving candidates. In view of the status report submitted by the IO, custodial interrogation of the present accused persons are required along with the experts (FSL) to find out the role played by the accused persons, while manipulating the documents like mark-sheet, tabulation sheet etc. etc.
Ø Observation of the Hon'ble Supreme Court in State of Bihar v. Amit Kumar (supra), (paragraphs-8, 9, 13 to 14, 15) and Nimmagada (supra), (paragraphs-22 to 26), has been referred to submit that the Hon'ble Supreme Court has not approved the granting of bail in an socio-economic offence, which has deep-rooted conspiracy, affecting the moral fibre of the society and needs to be considered seriously and it has also been observed that custody of the accused persons is necessary for the purpose of further investigation.
Ø Lastly, it is submitted that considering the aspect that the investigation is at a very crucial stage, which has necessitated the further interrogation of the accused persons along with the experts to give a logical conclusion of the investigation, the accused persons, who were the kingpin of the entire scam, should not be enlarged on bail.
Ø Release of set of other-accused (appointed officials) on different footing cannot be a ground to consider the bail of the present accused persons, who were the prime accused in the entire scam, being the Chairman and Member of the Selection Board of APSC.
Findings of the Court:
15. Due consideration is given to the submissions of respective parties advanced before this Court. I have also gone through the LCR along with the Case Diary and the decisions relied upon by the parties as aforesaid.
16. Of course, the present bail petitions being successive to the earlier petitions, it has to set out new grounds, which was not agitated earlier and/or not properly appreciated in the earlier decisions.
17. It may be mentioned here that the grounds, i.e., the length of detention, release of co-accused etc., which were taken earlier and has been dealt with elaborately in the earlier orders, need not be discussed again.
18. Let us discuss the other issues raised in the present petitions. So far as the submission that the re-arrest of the accused person after granting bail by the Supreme Court is illegal, it is to be noted that while granting the default bail to the accused Rakesh Paul on 16.08.2017, the Court has already granted the liberty to the prosecution agency to arrest or re-arrest the accused on cogent ground and the accused was arrested on 17.08.2017 on the basis of the FIR filed by the informant, which led to register Bhangagarh PS Case No. 159/2017 and at that point of time, no investigation was pending against him. So, the decision of Uday Chand (supra), is not applicable in the present case.
19. The contention that the informant should be prosecuted for the offence under Section 165 A IPC, read with Section 12 of the PC Act as an abettor, as he allegedly paid bribe to the accused persons, needs to be appreciated in the context of the factual grounds of each case. In the present case, the informant, who appeared in the written examination and also cleared the same and was called for viva-voce and at that time, he was induced by the accused persons for payment to get the selection/job and the informant became aware of the prevailing practice in APSC that on payments of such gratifications, one can secure the job, being lured, paid the advance money of Rs. 50,000/- to the Chairman and his associates/Member of APSC. So much so, he cannot be held as an abettor within the definition of abettor under Section 107 IPC, which provides as below:—
“107. Abetment of a thing-A person abets the doing of a thing, who;
Firstly, instigate any person to do that thing or,
Secondly, engages with one or more other person or persons in any conspiracy for doing that thing, if an act or illegal omission takes place, in pursuance of that conspiracy, and in order to doing so of that thing, or
Thirdly, intentionally aids by any act or illegal omission, the doing of that thing.
Explanation-1:- A person who by willful misrepresentation or by willful concealment of a material fact, which he is bound to disclose voluntarily causes or procures or attempts to cause or procure a thing to be done is said to instigate the doing of that thing.
Explanation-2-Whoever either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act and thereby facilitate the commission thereof, is said to aid the doing of that act.
Section 108 defines abettor as follows:—
A person who abets either the commission of an offence or the commission of an act, which would be an offence, if committed by a person, capable by law of committing an offence with the same intention or knowledge as that of abettor.
Explanations - 1 to 6………(N/A)
Thus, an abettor is a person who abets an offence and it includes both the persons who abets either the commission of the offence or the commission of an act, which would be an offence.”
20. Case Diary reveals that the informant and other witnesses were examined during investigation and it is their statement that they were induced to pay money for selection and on the demand of the accused, Rakesh Paul and his associate Samedur Rahman, for Rs. 15 lacs to get the job, an amount of Rs. 50,000/- in advance was paid to them and rest amount could not be managed, as a result of which, the informant was not selected. Their evidence is also supported by enormous materials during investigation, as reflected from the Case Diary. Resultantly, this Court is not agreeable to the contention raised that the informant is liable as an abettor and the fact situation in the decision of Panalal Damodar Rathi (supra), relied by the petitioner is not applicable to the present case.
21. On the next, the contention that the names of the informant and the supporting witnesses, not referred in the charge sheet and the statement of approver is not reliable is of no consequence because it has already been pointed out that the informant and his witnesses have been examined in support of the contention raised in the FIR and similarly, the statement of the accused 9/the approver, who has been granted pardon, is also supported by other ample documentary as well as oral evidence and the Court at this stage cannot appreciate the evidence of approver, which is the subject matter of trial. All details of the witnesses may not be incorporated in the charge sheet (which is in Case Diary) and same cannot be a ground to ignore the prosecution case. So far as the Case Diary is concerned, a large number of witnesses have been examined, including various documents in support of the charge sheets filed.
22. It reveals that the statement of the approver got supported by ample documentary and oral statements of witnesses, coupled with the expert opinion. The submissions that the offence under Section 13 of the PC Act is not made out, is without substance, on the face of the allegations and prima facie materials that accused persons fraudulently obtained money from the candidates with assurance to give appointment and one who failed to fulfill the entire demand was unable to get the job and his money was not returned. Further, the mark sheets, answer sheets, tabulation sheets etc. prepared by both accused persons were found to be manipulated at their end, which is indicative of abuse of position by a public servant, which may amount to misconduct and is a subject matter of trial.
23. So far as the reliance upon the decision of Amitbhai Anil Chandra Shah (supra), and Lalita Kumari (supra) by the learned counsel for the petitioner, Rakesh Paul, the same is related to the maintainability of the registration of the second FIR and the same is not relevant in the instant case, which is altogether different from the facts and circumstances of the said case. In State of Bihar v. Amit Kumar; (supra), which has also been relied on behalf of petitioner Rakesh Paul, that the bail was granted after 8 months of the detention, is of no assistance to the petitioners' side as the bail of the said accused, Amit Kumar, which was granted after 8 months by the High Court, was cancelled by the Hon'ble Apex Court, considering the fact that the accused is charged with economic offences of huge magnitude and is alleged to be the kingpin with an observation that if the undeserving candidates are allowed to top examination by corrupt means, not only the society will be deprived of the deserving candidates, but it will be unfair for those students, who have honestly worked hard and ultimately, disentitle to a good rank by the fraudulent practices prevalent in those examinations. It is further observed that socio-economic offences constitute a class apart and needs to be visited with a different approach in the matter of bail.
24. The observation and finding of Nimmagada Prasad v. CBI (supra), was followed in the State of Bihar v. Amit Kumar (supra) and the same was also discussed in my earlier orders. So, it needs no more discussion.
25. Further challenge to the second FIR (the present one) and that the investigation misdirected, cannot be decided in a Bail Application, whereas, no quashing petition has been preferred, challenging the FIR. Case Diary reveals that the last charge sheet was filed on 06.01.2020 and subsequently, on the prayer of the expert that certain documents need to be examined to give a proper opinion, IO made prayer before the trial Court to allow him to send those exhibits, collecting from the Court and considering the nature and importance of the expert opinion the learned trial Court allowed the prayer to complete the same and submit FF at the earliest. In the meantime, LCR with CD was called from this Court in connection with the Bail Application. During this period, expert opinion was received by the IO on 18.05.2020 and IO want to interrogate particularly these set of accused persons, Chairman/Members of APSC, regarding the vital documents to ascertain certain aspects of the matter and which should be allowed to reach the final and logical conclusion of the investigation. The prayer of prosecution cannot be ignored in the circumstances, as gravity of charge and exact role of accused must be properly comprehended.
26. It is to be noted that the present case is unique in nature and till filing of the FIR, by one unsuccessful candidate, the matter was under camouflage and a long drawn exercise has been undertaken by the IO to surface the modus operandi of the crucial persons like Chairman, Member of APSC and the relevant staff. It is not an easy task unlike other criminal investigation to find out the witnesses, relevant documents, etc. Case Diary reveals that only after much pursuance to the office of the APSC and Government Department concerned, large number of documents could be collected and which were sent for FSL for examination. Original answer-script of huge number of candidates and all other relevant documents were collected after vigorous attempt, various source of information was collected and different categories of persons were examined and only thereafter, IO has been able to trace out the entire gamut of the scam. The functions conducted by the Chairman and Member of the APSC is a matter of grave concern for the entire State and the said aspect has also been visualized by the Hon'ble Supreme Court in Rakesh Kumar Paul Petitioner v. State Of Assam; (2017) 15 SCC 67, in following words:—
“29……In the present case, the allegations do not disclose merely an economic offence, but it shows a transgression of the constitutional right of the victims of the crime. The Chairman of APSC has the responsibility on behalf of the State for enforcement of fundamental rights in matters of public employment enshrined under Articles 14 and 16 of the Constitution of India. If the allegations are found to be true, then the offence cannot merely be considered as an economic offence, but a fraud on the Constitution itself by the persons appointed to enforce it.”
27. Ratio of the Hon'ble Delhi High Court, as referred by the petitioner, in my respectful opinion, cannot be applicable in the context of the present case, which affects the interest of the State at large, confidence of the people in general and deprivation of job opportunity by victims in particular.
28. Nothing depicted from the medical documents and the jail report about the serious health issue of either of the accused person to necessitate urgent medical care and attention to grant interim or regular bail, as sought for. Except some apprehension in view of COVID-19 pandemic, nothing reflects to address the health issue. Jail authority has taken due care of the inmates including the petitioners and necessary steps as per the Government guidelines. Further, none of the petitioners tested positive of COVID-19. So, the prayer for interim bail is not liable to be considered.
29. Granting of bail to the other set of accused persons, who were not similarly situated to the present accused persons, cannot be a ground to consider the bail applications of the two petitioners. Now, the present case is in a crucial stage, whereby the IO wants to interrogate the accused persons along with the experts on the basis of the recent expert opinion, which should be allowed in the interest of justice.
30. In view of all above, while taking note of entirety of the matter and having regard to the prayer of the IO, this Court is of the considered opinion that accused persons cannot be released at this stage and accordingly, both the bails petitions are rejected, however, with a direction to the IO to complete the interrogation and to submit FF before the learned trial Court within a period of 8 (eight) weeks from today and no more further extension of time can be entertained. Thereafter, the petitioners are at liberty to renew their bail prayers before the trial Court and in the event of filing such bail applications, the learned trial Court will decide the same on its own merit without being influenced by the order of this Court. The jail authority is also hereby directed to provide proper care to the accused persons, as per the Government guidelines issued under COVID-19 pandemic.
31. With the above observation and direction, both the bail petitions along with the interlocutory application, stand disposed of.
32. Having regard to all the entirety, as the charge sheet has already been submitted, subject to submit last FF within 8 weeks, it is directed that, trial of the case should proceed in expedite manner and the prosecution should take necessary steps accordingly.
33. Return the Case Diary along with the LCR forthwith to the trial Court of Special Judge, Assam. Registry will ensure that the same will reach the Special Judge, Assam, during the course of the day.