Concept of bail found its place within the human rights. : Gauhati High Court
It should also be remembered that the legislature used, for the purposes of the bail, ‘reasonable reasons for believing’ rather than ‘evidence’ to mean that the court dealing with the bail can only satisfy it as to whether a genuine case against the accused exists and that the prosecution can produce prima facie evidence in support. At this stage, it is not exempt from having proof that the accused is guilty beyond a reasonable doubt, was referred by Justice Parthivjyoti Saikia of the Gauhati High Court in the matter of Saroj Sharma versus State of Assam [Bail Appln./399/2021] The following order was passed for the facts relating to the arrest of petitioners as a publicity advertisement was published by the State Level Police Recruitment Board requesting an online application for 597 police S.I. positions in Assam Police from the eligible candidates. Some 66,000 candidates have downloaded E-Admit cards for examination, but the question papers have previously been leaked and circulated in WhatsApp which has resulted in the cancellation of the written test. The President of the Recruitment Board for State Police has submitted the FIR, alleging the above. In the FIR, the informant said he had received the leakage information via a WhatsApp message from Sri Gautam Mech. An inquiry was carried out by the police. Several people have been detained. Finally, the charging sheet was filled by the police. It may be pointed out that certain people who are indicated on Page No. 4/15 as being charged in the indictment have never been arrested by the police. They were summoned by the following court and released under bail. Indeed, Special Judge Assam has already released 26 people charged under bail. Saroj Sarma, the petitioner’s bail application was dismissed by the following court. Since the specific allegations were Sri Saroj Sharma has found himself to be one of the leading defendants along with defendants Rubul Hazarika, Prasanta Kumar Dutta, Kumar Sanjit Krishna and others who have involved themselves, by way of Whatsapp messages and other means, in the offence of leaking from the question paper the SI(UB) written exam for police officers. On behalf of the present petitioners, learned counsel relied upon the following decisions: (2014) 8 SCC 273: Arnesh Kumar Vs. State of Bihar &amp; Anr. (2020) 10 SCC 616: Bikramjit Singh Vs. State of Punjab (2002) 9 SCC 372: Laloo Prasad @ Laloo Prasad Yadav Vs. State of Jharkhand 2020 SCC Online SC 964: Arnab Manoranjan Goswami Vs. State of Maharashtra &amp; Ors. (2019) 14 SCC 599 : Achpal @ Ramswaroop &amp; Anr. Vs. State of Rajasthan (2012) 1 SCC 40: Sanjay Chandra Vs. Central Bureau of Investigation  Learned State Counsel, Assam relied upon the following decisions: (1989) 1 SCC 235: Sube Singh &amp; Ors. Vs. State of Haryana &amp; Ors. (1969) 3 SCC 429: Mohd. Hussain Umar Kochra &amp; Ors. Vs. K.S. Dalipsinghji &amp; Ors. AIR 1961 SC 1241: The State of Andhra Pradesh Vs. Kandimalla Subbaiah &amp; Ors.  By keeping in consideration the case of R v Hildebrandt, the Court of Appeal of the Supreme Court of Victoria, Australia has noted: “Judicial exposures are not fully uniform about the meaning of the parity principle. The word “principle of parity” is used by the authorities concerned in at least two ways. First, to acknowledge that cases like this should be treated equally (itself an emanation of equal justice). In this sense, it comprises a mirror statement that should also be treated as such, and that disparate culpability or circumstances may impose a different provision. Second, the phrase used is the obligation to consider the ‘appropriate comparability’ of  frauds.”
Saroj Sarma vs The State Of Assam on 25 June 2021 Gauhati High Court Saroj Sarma vs The State Of Assam on 25 June 2021 Page No.# 1 15 THE GAUHATI HIGH COURT of Police and circulated the leaked question papers through Whatsapp messages and by other means to candidates in exchange of huge sum of money. In furtherance of the conspiracy he along with Rubul Hazarika met Kumar Sanjit Krishna the then Superintendent of Police Karimganj &amp Chairman District Level Selection Committee at Karimganj on 12 09 2020. They conspired thereto leak the question paper prior to the scheduled examination date i.e 20 09 2020 from the custodian of question papers i.e. Kumar Sanjit Krishna. As desired by Kumar Sanjit Krishna he arranged secret mobile handsets and fake SIM card for use by Kumar Sanjit Krishna and other perpetrators to keep their conspiracy as secret. He also provided his white colour Google mobile phone and necessary materials like sealing wax blade cutter adhesive tape etc. for opening and resealing the packets of question papers to Rubul Hazarika on 18 09 2020 at the time of proceeding from Guwahati to Karimganj. Accused Rubul Hazarika took photograph of the leaked question papers from the custodian i.e. Kumar Sanjit Krishna the then Superintendent of Police Karimganj &amp Chairman District Level Selection Committee Karimganj in exchange of rupees forty lakhs. As per the instruction of Saroj Sarma his employee Jitul Jyoti Sandilya delivered the money as demanded by Kumar Sanjit Page No.# 5 15 Krishna in a backpack to Subrata Sarkar husband of Sukanya Sarkar near Chung fa restaurant on Mother Teressa Road Geetanagar at the night of 18 09 2020 On receipt of the leaked question papers from Nipu Phukan he got the answers of the questions Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 papers printed in the house of Hira Choudhury. At the instruction of Saroj Sarma his employee. Jitu Jyoti Shandilya shared the leaked question papers with tick marks on the correct answers with perpetrators including Rakibul Islam of Barpeta. Saroj Sarma and his associates in connivance with Prasanta Kumar Dutta arranged provided rooms &amp leaked question papers to several candidates at Hotel Bhargav Grand in the night of 19 09 2020 where mock test was held for candidates with leaked question papers. In order to conceal the design Saroj Sarma kept back the mobile phone of Rubul Hazarika with him for the period from 18 09 2020 morning to 19 09 2020 morning as an alibi whereas Rubul Hazarika proceeded to Karimganj on 18 09 2020 morning and returned to Guwahati 19 09 2020 morning. Saroj Sarma used his employees namely Jitul Jyoti Shandilya Nipu Phukan and Imran Hussain to execute the conspiracy. A copy of Admit Card in the name of a candidate of SI(UB) exam was recovered from his rented house. He collected huge sum of money in inducing various candidates through his network of middlemen including Rakibul Islam Kumud Kalita and Hira Choudhury etc. The evidence gathered during the course of investigation shall establish the complicity of the accused in the crime Sri Diban Deka He got a set of leaked question papers from his close associate Saroj Sarma. He prepared model question papers by including the actual questions from the leaked question paper He cleverly added some additional questions in the model question papers to avoid drawing of undue attention and to conceal his criminal activity. The model question papers were handed over by him to Pranab Bora and Pranjal Sarma who are partners of Thank You Lodge. With these model question papers mock test was held in the Thank You Lodge on 19 th Sep. 2020. He has induced several candidates by promising them job of SI(UB) of Police in exchange of huge amount money He was constant touch with the other conspirators of this crime. Arrested accused Sanjib Kumar Sarma had approached Dibon Deka for providing job of SI(UB) to few candidates and Page No 6 15 Dibon Deka had linked Sanjib Kumar Sarma with Saroj Sarma for the purpose of providing job illegality. Dibon Deka also disposed his mobile phone with malafide intention to destroy evidence The evidence gathered during the course of investigation shall establish the complicity of the accused in the crime 7. Both the petitioners namely Saroj Sarma and Diban Deka have pleaded that their period of detention already undergone in judicial custody deserves to be taken as a ground for releasing them 8. On behalf of the present petitioners learned counsel relied upon the following decisions 2014) 8 SCC 273 : Arnesh Kumar Vs. State of Bihar & Anr 2020) 10 SCC 616 : Bikramjit Singh Vs. State of Punjab9 SCC 372 : Laloo Prasad @ Laloo Prasad Yadav Vs. State of Jharkhand 2020 SCC Online SC 964 Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors 2019) 14 SCC 599 : Achpal @ Ramswaroop & Anr. Vs. State of Rajasthan1 SCC 40 : Sanjay Chandra Vs. Central Bureau of Investigation Indian Kanoon 9. Mr. D. Das learned Addl. P.P. Assam relied upon the following decisions Saroj Sarma vs The State Of Assam on 25 June 2021 1989) 1 SCC 235 : Sube Singh & Ors. Vs. State of Haryana & Ors 1969) 3 SCC 429 : Mohd. Hussain Umar Kochra & Ors. Vs. K.S. Dalipsinghji Page No.# 7 15 & Ors AIR 1961 SC 1241 : The State of Andhra Pradesh Vs. Kandimalla Subbaiah & Ors 10. I have given my anxious consideration to the submissions made by the learned counsel for both 11. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan reported in2 SCC 42 the Supreme Court has observed that "under the criminal laws of this country a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so 12. Now let me have a discussion on the issue of bail under Section 439 CrPC. In Prahlad Singh Bhati Vs. NCT. Delhi & Anr reported in4 SCC 280 the Supreme Court has held as under The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail the court has to keep in mind the nature of accusations the nature of evidence in support thereof the severity of the punishment which conviction will entail the character behaviour means and standing of the accused circumstances which are peculiar to the accused Page No.# 8 15 reasonable possibility of securing the presence of the accused at the trial reasonable apprehension of the witnesses being tampered with the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted at this stage to have the evidence establishing the guilt of the accused beyond reasonable doubt 13. In Ram Govind Upadhyay Vs. Sudarshan Singh & Ors. reported in3 SCC 598 the Supreme Court has observed as under Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 3. Grant of bail though being a discretionary order but however calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason cannot be sustained. Needless to record however that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime the greater is the chance of rejection of the bail though however dependent on the factual matrix of the matter 4. Apart from the above certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however the same are only illustrative and nor exhaustive neither there can be any. The considerations a) While granting bail the Court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge d) Frivolity in prosecution should always be considered and it is only the Page No 9 15 element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution in the normal course of events the accused is entitled to an order of 14. In Vaman Narain Ghiya Vs. State of Rajasthan reported in2 SCC 281 the Supreme Court has observed as under Bail" remains an undefined term in the Cr.P.C. Nowhere else the term has been statutorily defined. Conceptually it continues to be understood as a right for assertion of freedom against the State imposing restraints since the U.N. Declaration of Human Rights of 1948 to which Indian is a signatory the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression `bail denotes a security for appearance of a prisoner for his release Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 Etymologically the word is derived from an old French verb `bailer which means to give or `to deliver although another view is that its derivation is from the Latin term baiulare meaning `to bear a burden . Bail is a conditional liberty. Strouds Judicial Dictionaryspells out certain other details. It states When a man is taken or arrested for felony suspicion of felony indicated of felony or any such case so that he is restrained of his liberty And being by law bailable offence surety to those which have authority to bail him which sureties are bound for him to the Kings use in a certain sums of money or body for body that he shall appear before the Justices of Goale delivery at the next sessions etc. Then upon the bonds of these sureties as is aforesaid he is bailed that is to say set at liberty until the day appointed for his appearance." Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners and at the same time involves participation of the community in administration of justice 15. In Prasanta Kumar Sarkar Vs. Ashis Chatterjee reported in14 SCC 496 the Supreme Court has observed as under 9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However it is equally incumbent upon the High Court to exercise its discretion judiciously cautiously and strictly in compliance with the basic principles laid down in a plethora of Page No.# 10 15 decisions of this Court on the point. It is well settled that among other circumstances the factors to be borne in mind while considering an application for bail are i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of the accusation severity of the punishment in the event of conviction danger of the accused absconding or fleeing if released on bail character behaviour means position and standing of the accused likelihood of the offence being repeated reasonable apprehension of the witnesses being influenced andAnr. reported in 2021 SCC OnLine SC 335 the Supreme Court has held as under Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 42. ................................ The grant of bail is a matter which implicates the liberty of the accused the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well settled principle that in determining as to whether bail should be granted the High Court or for that matter the Sessions Court deciding an application under Section 439 of the CrPC would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place These observations while adjudicating upon bail would also not be binding on the outcome of the trial. But the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons brief as they may be for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other. The rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individual parties as in a civil proceeding. The proper enforcement of criminal law is a matter of public Page No.# 11 15 17. In paragraph 43 of Ramesh Bhavan Rathodthe Supreme Court has observed as under 43. Grant of bail under Section 439 of the CrPC is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail as in the case of any other discretion which is vested in a court as a judicial institution is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. This Court in Chaman Lal v. State of U.P.8 in a similar vein has held that an order of a High Court which does not contain reasons for prima facie concluding that a bail should be granted is liable to be set aside for non application of mind. This Court observed 8. Even on a cursory perusal the High Court s order shows complete non application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications. Yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 9. There is a need to indicate in the order reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence 18. The learned counsel for the petitioners tried to compare the present allegation against the petitioners with the infamous scams that have taken place in our country The learned Sr. Counsel Mr. Dutta as well as Mr. Mahajan have similarly submitted that some persons who are charge sheeted have been released on bail and the petitioners are not released on bail Page No.# 12 15 19. Regarding the principle of parity the Supreme Court in Neeru Yadav Vs. State of U.P. reported in16 SCC 508 has held that while applying the principle of parity the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before 20. In the case in hand dozens of persons are booked as each of them had played different roles in the alleged act. So if one person is released on bail the other is not entitled to claim a similar view 21. In Ajmer Singh Vs. State of Haryana reported in3 SCC 746 the Supreme Court has held 23. The principle of parity in criminal case is that where the case of the accused is similar in all respects as that of the co accused then the benefit extended to one accused should be extended to the co accused. With regard to this principle it is important to mention the observation of this court in the case of Harbans Singh v State of Uttar Pradesh and Ors. 2 SCC 101]. In that case it was held that in view of commutation of death sentence of one of the accused who was similarly placed as that of appellant award of death sentence to appellant was unjustified and hence the death sentence of the appellant was stayed till the decision of the President on commutation of sentence 26. The Court of Appeal Albert Canada in R. v. Christiediscussed the meaning of the principle in connection with sentencing in criminal cases. The Court of Appeal stated 40. Parity is a principle which must be taken into account in any sentence and particularly where the offence was a joint venture. There will of course be cases where the circumstances of the co accused are sufficiently different to warrant significantly different sentences such as where one co accused has a lengthy related criminal record or played a much greater role in the commission of the offence Thus expressing its view on `parity in sentencing the Court observed Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 Page No.# 13 15 "43. What we must strive for is an approach to sentencing whereby sentences for similar offences committed by similar offenders in similar circumstances are understandable when viewed together particularly in cases involving joint ventures 28. The Court of Appeal of the Supreme Court of Victoria Australia in the case of R v HildebrandtVSCA 142] observed Judicial expositions of the meaning of the parity principle are not entirely uniform The term "the parity principle" is used in at least two senses in the relevant authorities. First to express the recognition that like cases should be treated alike itself an emanation of equal justice). Secondly the phrase is used to describe the requirement to consider the "appropriate comparability" of co offenders and in that sense comprehends the mirror propositions that like should be treated alike and that disparate culpability or circumstances may mandate a different disposition 29. In the case Postiglione v The Queen189 CLR 295 94 A Crim R 397 Dawson and Gaudron JJ stated The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that if there are relevant differences due allowance should be made for them In the case of co offenders different sentences may reflect different degrees of culpability or their different circumstances. If so the notion of equal justice is not violated Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather it is a question of due proportion between those sentences that being a matter to be determined having regard to the different circumstances of the co offenders in question and their different degrees of The Court therefore concluded the principle to mean it the concept simply is that when two or more co offenders are to be sentenced any significant disparity in their sentences should be capable of a rational 23. What can be inferred from the above decision is that for applying the principle of parity both the accused must be involved in same crime and must be convicted in single trial and consequently a co accused is one who is awarded punishment along with the other accused in the same proceedings 22. The law on the point is clear. It is extremely difficult to apply the principle of parity in law in the matters relating to bail applications filed under Section Page No 14 15 439 CrPC Indian Kanoon Saroj Sarma vs The State Of Assam on 25 June 2021 23. Therefore it can be culled out among other relevant circumstances the factors to be borne in mind while considering an application for bail under Section 439 CrPC are:whether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of the accusation severity of the punishment in the event of conviction danger of the accused absconding or fleeing if released on bail character behavior means position and standing of the accused likelihood of the offence being repeated reasonable apprehension of the witnesses being influenced anddanger of course of justice being thwarted by grant of 24. Unlike Section 437(i) there is no specific bar in Section 439of the CrPC. This is a special power of the High Court and the Court of Sessions. While exercising this special power the High Court or the Court of Sessions has to exercise judicial discretion 25. There is no specific definition of the phrase "judicial discretion". The famous American Judge Benjamin Cardozo in his book "The Nature of the Judicial Process" has explained the phrase judicial discretion" as under Judicialdiscretion is a discretion which is informed by tradition methodized by analogy and disciplined by system and subordinated to primordial necessity of order in the social life 26. I have carefully considered all the materials before me. Question paper Page No.# 15 15 leak damages the future of our young generation. This act cannot be compared with the scams involves millions of rupees. Question paper leak is an organized crime. This is an offence against the society at large. This court is satisfied that there are prima facie materials against the present petitioners Therefore this court finds no reason to agree with the prayer made by the petitioners. Accordingly the bail applications of Saroj Sarma and Diban Deka are rejected 27. All the bail applications are disposed of JUDGE Mkk Comparing Assistant Indian Kanoon 