1997 JTR(SC) 1317
1998 1 AICLR 905 ; 1997 AIR(SC) 3589 ; 1997 AIR(SCW) 3700 ; 1997 2 ALD(Cri)(SC) 687 ; 1997 35 AllCriC 690 ; 1998 1 APLJ 19 ; 1997 CriLR 733 ; 1997 4 Crimes(SC) 40 ; 1997 CrLJ 4056 ; 1998 1 EastCrC(SC) 23 ; 1997 8 JT 382 ; 1997 2 KLT(SN) 58 ; 1998 1 MLJ 31 ; 1997 4 RCR(Cri) 462 ; 1997 3 RLW(Raj) 459 ; 1997 6 Scale 347 ; 1997 8 SCC 104 ; 1997 SCC(Cri) 1245 ; 1997 Supp4 SCR 412 ; 1997 8 Supreme 446
1997(8) Supreme 446
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
M.K. Mukherjee and K.T. Thomas, JJ.
State of Andhra Pradesh -Appellant
versus
Bimal Krishna Kundu & Anr. -Respondents
Criminal Appeal Nos. 923-924 of 1997
(Arising out of SLP (C) Nos. 1789-1790 of 1997)
Decided on 3-10-1997
Counsel for the Parties :
For the Appellant : A.S. Nambiar, Sr. Advocate, G. Prabhakar, Advocate.
For the Respondents : Sushil Kumar, Shekher Basu, A.K. Panja, Sr. Advocates, Sanjay Kumar Ghosh, Sanjoy Kumar, Joymalya Bagchi, Mrs. D. Bharathi Reddy, A. Acharjee, Advocates.
Act Referred :CRIMINAL PROCEDURE CODE : S.438
(A) The appeal pertains to the interpretation and application of Section 438 of the Code of Criminal Procedure in the context of a serious allegation of criminal conspiracy involving the leakage of examination question papers. The State contends that the learned single judge of the High Court erred in granting anticipatory bail, emphasizing that the offences of cheating and conspiracy, though not punishable by death or life imprisonment, involve grave misconduct affecting public interest and the integrity of a competitive examination. The section provides for the grant of anticipatory bail to a person who has reason to believe that he may be arrested for an offence non-bailable, and the court must consider the nature and gravity of the accusation, the applicant's antecedents, and the possibility of the accused fleeing justice. It is urged that the discretion under this section must be exercised with caution where the investigation is substantially complete and the allegations involve a well-orchestrated conspiracy with potential for evidence tampering and destruction of records.
(B) The key legal principles elucidated are that Section 438 is not confined to offences triable exclusively by a Court of Sessions or those punishable by death or life imprisonment, and that its scope must not be read down by importing distinctions from Section 437. The court must assess the gravity of the accusation, the applicant's role, and the risk of interference with the investigation. Pre-arrest bail is not appropriate when its grant is likely to impede the investigation or prejudice public interest in a serious conspiracy case.
Facts of the case:
The respondents, owners of a printing press engaged by the Public Service Commission to print question papers, were blacklisted in 1994 for leaking papers. Despite the ban, they were found to have printed question papers for subsequent examinations through collusion and personation, using other names and entities. A conspiracy involving board officers was also alleged. After the allegations were revealed, the respondents approached the High Court for anticipatory bail, which was granted, a decision challenged by the State.
Findings of Court:
The learned single judge overemphasized that the offences were not punishable with life imprisonment and appeared to merge considerations under Section 437 into Section 438. The court held that the implications of granting pre-arrest bail to accused persons in a serious, organized conspiracy were not adequately considered, and that such an order would severely hamper the investigation and public interest.
Issues:
Whether the High Court was justified in exercising discretion under Section 438 to grant anticipatory bail in a case involving grave allegations of criminal conspiracy and paper leakage affecting public interest and a large number of students.
Ratio Decidendi:
The discretion under Section 438 must be exercised with circumspection where the allegations involve a serious conspiracy, the investigation is substantially complete, and granting bail pre-arrest is likely to impede investigation and prejudice public interest, irrespective of the maximum punishment prescribed for the offences.
Result:
The appeals are allowed and the impugned order granting anticipatory bail is quashed.
(A) The appeal pertains to the interpretation and application of Section 438 of the Code of Criminal Procedure in the context of a serious allegation of criminal conspiracy involving the leakage of examination question papers. The State contends that the learned single judge of the High Court erred in granting anticipatory bail, emphasizing that the offences of cheating and conspiracy, though not punishable by death or life imprisonment, involve grave misconduct affecting public interest and the integrity of a competitive examination. The section provides for the grant of anticipatory bail to a person who has reason to believe that he may be arrested for an offence non-bailable, and the court must consider the nature and gravity of the accusation, the applicant's antecedents, and the possibility of the accused fleeing justice. It is urged that the discretion under this section must be exercised with caution where the investigation is substantially complete and the allegations involve a well-orchestrated conspiracy with potential for evidence tampering and destruction of records.
(B) The key legal principles elucidated are that Section 438 is not confined to offences triable exclusively by a Court of Sessions or those punishable by death or life imprisonment, and that its scope must not be read down by importing distinctions from Section 437. The court must assess the gravity of the accusation, the applicant's role, and the risk of interference with the investigation. Pre-arrest bail is not appropriate when its grant is likely to impede the investigation or prejudice public interest in a serious conspiracy case.
Facts of the case:
The respondents, owners of a printing press engaged by the Public Service Commission to print question papers, were blacklisted in 1994 for leaking papers. Despite the ban, they were found to have printed question papers for subsequent examinations through collusion and personation, using other names and entities. A conspiracy involving board officers was also alleged. After the allegations were revealed, the respondents approached the High Court for anticipatory bail, which was granted, a decision challenged by the State.
Findings of Court:
The learned single judge overemphasized that the offences were not punishable with life imprisonment and appeared to merge considerations under Section 437 into Section 438. The court held that the implications of granting pre-arrest bail to accused persons in a serious, organized conspiracy were not adequately considered, and that such an order would severely hamper the investigation and public interest.
Issues:
Whether the High Court was justified in exercising discretion under Section 438 to grant anticipatory bail in a case involving grave allegations of criminal conspiracy and paper leakage affecting public interest and a large number of students.
Ratio Decidendi:
The discretion under Section 438 must be exercised with circumspection where the allegations involve a serious conspiracy, the investigation is substantially complete, and granting bail pre-arrest is likely to impede investigation and prejudice public interest, irrespective of the maximum punishment prescribed for the offences.
Result:
The appeals are allowed and the impugned order granting anticipatory bail is quashed.
JUDGMENT
Thomas, J.-Special leave granted.
2. The State of Andhra Pradesh is very much aggrieved 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.
3. A summary of the facts necessary for disposal of these appeals is the following :
First respondent Bimal Krishna Kundu and his son Hrishakesh 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 examinations. 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 respondents 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.
4. 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 may be 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."
5. 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 punishable 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.")
6. 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.
7. 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 others 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 non 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.
8. A three judges bench of this Court has stated in Pokar Ram v. State of Rajasthan1 :
"Relevant considerations governing the court s decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a 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 v. Anil Sharma2 :
"Consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest."
9. 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 paper."
10. 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.
11. 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 respondents. It is disquieting that implications of arming respondents, 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 impede 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 bail order.
12. 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.
Appeals allowed.
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