The Supreme Court on Wednesday has stayed the order of the Gauhati High Court granting bail to a man who allegedly acted as a tout and collected money in the infamous Assam Public Service Commission cash-for-jobs scam.
A bench led by Chief Justice N.V. Ramana and comprising Justices Surya Kant and Hima Kohli has issued notice to one Mofidul Islam who was framed as the prime accused in Chargesheet in the entire scam and has worked as a middleman for officials of the Assam Public Service Commission (APSC).
Senior AAG Nalin Kohli appearing for the State of Assam has argued that it is settled law that the High Courts as a matter of practice do not grant the relief of anticipatory bail to an absconding accused while exercising their inherent jurisdiction under Section 482 of the CrPC. There was also an apprehension that other absconding accused may seek to rely on the impugned High Court judgement and seek similar relief.
According to the plea filed by the State of Assam, the respondent/Mofidul Islam used to collect money from the prospective candidates who appeared in the APSC examination. “As per the supplementary Chargesheet No VIII, there are statements recorded U/S 161 and 164 CrPC of the arrested candidates and the officials corroborating the involvement and the active role played by the Respondent herein in running the entire racket of illegal appointments in APSC examinations,” stated the plea.
Further, the plea stated that the respondent has been arrayed as accused no 74 in the supplementary Chargesheet No VIII dated 02.01.2019 in Special Case No. 02/2017 with respect to the Dibrugarh P.S. Case No. 936/2016 U/S 8/12/13(2) of the Prevention of Corruption Act, 1988 read with Section 109/120(B)/420/463/468/471/201 of the Indian Penal Code, 1860. Later, he has been declared as a “proclaimed absconder”.
High Courts jurisdiction U/S 482 CrPC cannot be extended for granting bail: Plea contends
The State of Assam submitted before the Apex Court that in view of the judgment laid down in “Panful Nessa Vs Mohd Miraj Ali & Ors. (2008) 7 SCC 759” this court had set aside the order of the High Court wherein it had granted bail in a petition filed under Section 482 CrPC while observing that the High Court could not have extended its jurisdiction u/s 482 CrPC to the extent of granting bail.
The State further contended that the High Courts direction under Section 482 CrPC that on the appearance of the Respondent/Accused before the trial court, he shall be released on bail is unsustainable, in view of the judgment laid down in case of State of Telangana Vs Habib Abdullah Jeelani & Ors., (2017) 2 SCC 779, passed by the Apex Court.
Furthermore, the State submitted that High Courts cannot exercise power under Section 482 CrPC to recall the non-bailable warrant and grant of bail when respondent declared as proclaimed absconder. It also submitted that vide the impugned order, the statutory right and duties of the investigating agency to conduct investigation has been infringed.
The plea raises the following question of law;
A- Whether the Hon’ble High Court can exercise its power u/s 482 CrPC to recall the non-bailable warrant issued against the respondent when respondent has been declared as a ‘proclaimed absconder’?
B- Whether the impugned order dated 07.07.2021 passed by the Hon’ble High Court u/s 482 CrPC stating that on appearance of the Respondent/accused before the trial Court, he shall be released on bail is sustainable in light of this Hon’ble Courts decision in State of Telangana vs Habib Abdullah Jeelani & Ors.,(2017) 2 SCC 779?
C- Whether the Hon’ble High Court can exercise its jurisdiction u/s 482 CrPC for the purpose of granting bail in the light of the decision in Panful Nessa Vs Mohd Miraj Ali and Ors.(2008)7 SCC 759?
D- Whether the petition filed by Respondent herein U/S 482 CrPC would be maintainable in the light of remedy available to the Respondent under Section 70(2) of the CrPC?
E- Whether the interference by the Hon’ble High Court vide the impugned judgment would amount to infringing the statutory Right and duties of the investigating agency to conduct investigation as provided under the provisions of the CrPC?
The AOR & Standing Counsel of the State Shuvodeep Roy and Advocate Ankit Roy assisted AAG Senior Advocate Nalin Kohli in the matter.