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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.