THE STATE OF BIHAR AND ANR Vs. AMIT KUMAR @ BACHCHA RAI

Tags Bail

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 767 of 2017, Judgment Date: Apr 20, 2017

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 767 OF 2017
(Arising out of Special Leave Petition (Criminal) No. 1762 of 2017)

The State of Bihar & Anr. … Appellants

versus

Amit Kumar @ Bacha rai … Respondent

Judgment

N.V.Ramana, J.
Leave granted.

This criminal appeal is filed by State of Bihar against the final judgment
and order dated 14.02.2017 passed in Criminal Miscellaneous No. 53391 of
2016, by the High Court of Judicature at Patna, wherein the High Court has
passed following order:

“Considering the entire facts and circumstances of this case, especially
the period of custody already undergone by the petitioner, let the
petitioner, above named, be enlarged on bail on furnishing bail bond of Rs.
20,000/- (Twenty Thousand) with two local sureties of the like amount each
to the satisfaction of learned Special Judge, vigilance, 1st,
Patna/successor court in connection with Special case No. 32 of 2016
arising out of Patna Kotwali Police Station Case No. 270 of 2016 after
framing of the charge in the case which must be framed within a month,
failing which the petitioner would be released on bail on furnishing bail
bond with condition that the petitioner shall fully co-operate with the
trial of the case and shall not indulge in any educational activity till
the conclusion of the trial or any criminal activities. On report of
subsequent criminal activity of the petitioner, the court below shall be at
liberty to cancel his bail bond in this case also”.

Aggrieved by the above order of the High Court, granting conditional bail
to the respondent, State of Bihar is in appeal before us

Brief factual matrix in the present matter is that the students of one
Vishnu Rai College, Kiratpur Raja Ram Bhagwanpur, Vaishali, were successful
in occupying first ten places in the merit list of Intermediate Examination
conducted by Bihar Intermediate Education Council. Subsequently there was a
report in the electronic media about the poor intellectual capacity of
those who have topped the Intermediate Examination in the State of Bihar.
In light of scathing media reports, students whose names were part of the
merit list were called for an interview before the Bihar Schools Complex
Committee. Subsequently a written complaint was lodged by the Director of
Secondary Education. Consequently an FIR bearing P.S. Case No. 270/2016
dated 06.06.2016 was registered before the Kotwali Police Station Patna
under Section 420, 465, 468, 471, 120B of Indian Penal Code, 1860.
Thereafter, investigation was conducted which revealed fraudulent practices
prevailing in Bihar Intermediate Examination involving students and
management of the said Vishnu Rai College resulting in the arrest of the
respondent herein.

Assailing the impugned order of the High Court, which granted conditional
bail to the respondent, learned senior counsel Mr. Siddharth Luthra
appearing on behalf of the State of Bihar contended that, the High Court
erred in not taking into consideration the gravity of the offence. He
further contended that the respondent herein, Principal of Vishnu Rai
College, is the king pin of what is publically known as ‘Bihar Toppers
Scam’ and thereby countered the argument of parity. Relying on the excerpts
of the case diary and seizure memo, which were not considered by the High
Court, he pointed out that a prima facie case is made out against the
respondent and consequently prayed for of setting aside the impugned order
which granted conditional bail for the respondent.

Per contra learned senior counsel Mr. U.R. Lalit appearing for the
respondent-accused has contended that as there is no evidence of money
being exchanged by the accused, there is no possibility of conviction in
this case. Further learned senior counsel for respondent has vehemently
argued that, except for the evidence of the co-accused, there is no
evidence to establish that there was exchange of money between the
respondent and other members involved in the conspiracy. Furthermore he
contended that the statements of co-accused cannot be taken into account as
the same is inadmissible in the eyes of law. Moreover he pointed out that
the seizure of materials like rubber stamps etc, which were found in a
sister premises, cannot be relied upon.

Learned senior counsel for respondent has placed reliance on Bihar Legal
Support Society v. Chief Justice of India[1], where a Constitution Bench of
this Court has observed that this Court should generally desist from
intervening in matters of grant or refusal of regular bail /anticipatory
bail by the High Court. Further he relied on the case of Masroor v. State
of U.P.[2], in which it was observed that this Court should not ordinarily
interfere with the order of the High Court, granting or refusing bail,
unless there is an exceptional circumstance. Lastly he placed reliance on
the case of Sanjay Chandra v. CBI[3], wherein this Court had iterated that
the amount of incarceration the accused may have to undergo, if he is
ultimately punished, would be a relevant consideration while granting the
bail.

Heard the learned counsel for parties and perused the documents available
on record.

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 mere fact that
he was in jail for however long time should not be the concern of the
Courts.

We are conscious of the fact that the accused is charged with economic
offences of huge magnitude and is alleged to be the kingpin/ring leader.
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 various documents relating to property and land to
the tune of Rs. 2.57 Cr. were recovered besides Rs.20 lakhs in cash. In
addition to this, allegedly a large number of written answer sheets of
various students, letter heads and rubber stamps of several authorities,
admit cards, illegal fire arm 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 dairy. We are also conscious of the fact that the offences alleged, if
proved, may jeopardize the credibility of the education system of State of
Bihar.

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 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 accused-respondent, with
those who were on bail, as the respondent is alleged to be the king-pin of
the entire crime.

Although there is no quarrel with respect to the legal propositions
canvassed by the learned counsels, it should be noted that there is no
straight jacket 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.

We are of the considered opinion that the case of Sanjay Chandra (supra),
as relied upon by learned counsel for 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
section 409[4], 465, 467[5], 468, 471, 188, 201, 212 and 120B of Indian
Penal Code, 1860 and Section 8[6], 9[7], 13 (1)(c)/(d) read with 13(2)[8]
of Prevention of Corruption Act, 1988[9]. Therefore the case of Sanjay
Chandra (supra) provides no assistance for the respondent herein.

We are also conscious that if any 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.[10] Usually
socio-economic offence has deep rooted conspiracies affecting the moral
fiber of the society and causing irreparable harm, needs to be considered
seriously.

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 concerned
investigating authority to file the charge sheet within a month, as the
case involves almost 32 accused and a complex modus operandi.

Having bestowed our thoughtful consideration to the gravity of the offence
and several other crucial factors which are discussed in detail in
preceding paragraphs, we are of the opinion that it is not advisable to
release the accused/ respondent on bail at this stage. Accordingly without
expressing any opinion on final merits of the case, we set aside the order
of the High Court. The appeal stands allowed.
…………………………….J.
(N. V. Ramana)

…………………………….J.
(Prafulla C. Pant)

New Delhi,
April 20, 2017

-----------------------
[1] [2] (1986) 4 SCC 767.
[3] [4] (2009) 14 SCC 286.
[5] [6] (2012) 1 SCC 40.
[7] [8] 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.
[9] [10] 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.
[11] [12] Which carries punishment of imprisonment for minimum of three
years and may extend up to seven years with fine.
[13] [14] Which carries punishment of imprisonment for minimum of three
years and may extend up to seven years with fine.
[15] [16] Which carries punishment of imprisonment for minimum of four
years and may extend up to ten years with fine.
[17] [18] It is to be noted that Prevention of Corruption Act, 1988
was amended by ‘The Lokpal and Lokayutas Act, 2013’, Act I of 2014 (w.e.f
16.01.2014). This amendment has increased the minimum prescribed punishment
under Section 8, 9, 13(2) of the Prevention of Corruption Act.
[19]
[20] Nimmagadda Prasad v. CBI, (2013) 7 SCC 466; Y.S. Jagan Mohan
Reddy v. CBI, (2013) 7 SCC 439.

-----------------------
REPORTABLE