The
State of Andhra Pradesh Vs. Bimal Krishna Kundu & ANR
[1997] INSC 762 (3 October 1997)
M.K.
MUKHERJEE, K.T. THOMAS
ACT:
HEADNOTE:
THOMAS,
J.
Special
leave granted.
The
State of Andhra Pradesh is very much aggreived by the order of a learned single
judge of the High Court of Andhra Pradesh granting anticipatory bail to the
respondents in this case. Hence the State has filed these appeals challenging
the said order dated 20.6.1997.
A
summary of the facts necessary for disposal of these appeals is the following:
First
respondent Bimal Krishna Kundu and his son Harishakesh Kundu (who is second
respondent) were owners of a printing press run by M/s Eureka Printers Pvt.
Ltd. They were engaged by the Public Service Commission of the state of Andhra
Pradesh (PSC. for short) for printing question papers set for the examination
conducted by the P.S.C. In the year 1993. there was leakage of question papers
and it was revealed then that the printers were also responsible for such
leakage. The Government of Andhra Pradesh by order dated 6.1.1994 black listed
the respondents. However, such black listing did not put a stoppage to leaking
of question papers even in later years for such examinations conducted by the
P.S.C. In respect of one such examination held in December 1996 and another
held in March 1997 Government had to cancel the examinations consequent on
serious allegations that question papers leaked out before the examination.
Thereupon
the Hyderabad Police registered two crime cases and the CID police took up
investigation thereof. (Crime 31/97 and Crime 45/97) During investigation it
was revealed to the police that despite black listing of the respondents they
managed to obtain the printing work of question papers in collusion with the
Secretary of the P.S.C. by putting forward the name of one S.K. Saha as owner
of M/s. Manjusree Printers. Bangalore. But
according to the appellant the question papers were actually printed in the
press of the respondent at Calcutta and
that S.K. Saha was a mere name lender. It was also revealed that respondents
personated themselves as owners of yet another printing establishment called Nisarge
Printers. Bangalore and obtained printing work of
question papers for the Intermediate examination conducted by the Board of
Intermediate Education. For this a criminal conspiracy was hatched by the
respondents with some officers of the Board of Intermediate Education. It was
at the said stage that respondents approached the High Court for anticipatory
bail.
Learned
single judge who granted the order in favour of the respondents apprised
himself of the gravity of the crime in the following words:
"It
is no doubt true that leakage of question papers of Intermediate examination is
a heinous and unpardonable crime. It ay by seen that some persons tried to make
business in lakhs and crores of rupees by selling these papers without caring
for the consequences Obviously the career of millions of students who have
taken the Intermediate examination can be said to have been adversely
affected." After perusing the materials on record learned single judge
persuaded himself to grant anticipatory bail , mainly for the following
reasoning:
"That
being so, what are the offences that can be said to have been made out is the
question for consideration. It is fairly stated by the learned Additional
Public Prosecutor that the offences made out against these petitioners are
publishable under Section 420, 468 and 406 I.P.C. Be it noted that they are all
first class offences (sic) and not punishable with death or imprisonment for
life.
Moreover,
the investigation appears to have been completed to a great extent. Even if
custodial interrogation of Kundus, who are seeking anticipatory bail is
requested, there can be no objection to interrogate them." (It is evident
that by the words "first class offences" learned single judge would
only have meant "offences triable by a magistrate of First Class.")
It is apparent that learned single judge has chosen to exercise the discretion
envisaged in Section 438 of the Code on the ground that the offences involved
are not punishable with death or imprisonment for life. It must be remembered
that Section 438 of the Code applies to all non-bailable offences and not
merely to offences punishable with death or imprisonment for life. It is also
to be remembered that applicability of the section is not confined to offences triable
exclusively by the court of sessions.
There
is no indication in Section 438 of the Code for justifying a hiatus to be made
among non-bailable offences vivisecting those punishable with death or
imprisonment for life and those other punishable with less than life
imprisonment. No doubt such a classification is indicated in Section 437(1) of
the Code, but that Section is concerned only with post-arrest bail and not
pre-arrest bail. Learned single judge seems to have telescoped considerations
contemplated in Section 437 into the amplitude of the discretion envisaged in
Section 438 of the Code.
A
three judges bench of this Court has stated in Pokar Ram vs. State of Rajasthan [AIR 1985 SC 969]:
"Relevant
considerations governing the court's decision in granting anticipatory bail
under S. 438 are materially different from those when an application for bail
by person who is arrested in the course of investigation as also by a person
who is convicted and his appeal is pending before the higher court and bail is
sought during the pendency of the appeal." Similar observations have been
made by us in a recent judgment in State rep. by the CBI vs. Anil Sharma [JT
1997(7)SC 651]:
"Consideration
which should weigh with the Court while dealing with a request for anticipatory
bail need not b the same as for an application to release on bail after
arrest." Learned single judge has observed after examining the materials
on record that "Even Section 164 Cr.P.C. statement of Aruna Kumari, proof
reader, who is mainly responsible for the leakage of question papers also does
not indicate any nexus between these accused petitioners and the persons who
leaked out the above question papers.
Learned
counsel for the State of Andhra Pradesh invited our attention to the fact that
in the statement recorded during investigation from Smt. Aruna Kumari, who is a
proof reader of the printing press of the respondents at Calcutta, and also in
the statement of her husband K.P.Rao the fact that S.K. Saha was working as
proof reader in English and Sanskrit in the press of the respondents at
Calcutta, has clearly been made out and that question papers for the crucial
examination conducted by the P.S.C were actually printed in the press of the
respondents was also revealed by those witnesses. Learned counsel for the
appellant has further invited our attention to yet another fact that in the
confessional statement of another accused (Ramabrahmam) it was revealed that
the question papers were printed in the press of the respondents and the
witness too was privy to the leakage.
We are
strongly of the opinion that this is not a case for exercising the discretion
under Section 438 in favour of granting anticipatory bail to the respondent. It
is disquieting that implications of arming respondent, when they are pitted
against this sort of allegations involving well orchestrated conspiracy, with a
pre-arrest bail order, though subject to some conditions, have not been taken
into account by the learned single judge. We have absolutely no doubt that if
respondents are equipped with such an order before they are interrogated by the
police it would greatly harm the investigation and would impeded the prospects
of unearthing all the ramifications involved in the conspiracy.
Public
interest also would suffer as a consequence. Having apprised himself of the
nature and seriousness of the criminal conspiracy and the adverse impact of it
on "the career of millions of students", learned single judge should
not have persuaded himself to exercise the discretion which Parliament had very
thoughtfully conferred on the sessions judges and the High Courts through
Section 438 of the Code, by favouring the respondents with such a pre-arrest bl
order.
In the
result, we allow these appeals and quash the order of the High Court of Andhra
Pradesh granting anticipatory bail to the respondents in this case.
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