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PETITIONER: THE STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: BIMAL KRISHNA KUNDU & ANR.

DATE OF JUDGMENT:       03/10/1997

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T 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

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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.

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    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.

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    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.