Calcutta High Court (Appellete Side)
Dr. Subires Bhattacharya @ Subiresh … vs In Re: Dr. Subires Bhattacharya @ … on 20 November, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
In re: An application for Bail under Section 439 of the Code of
Criminal Procedure, 1973.
CRM (DB) 173 of 2024
(Under RC-03A/2022)
In the matter of : Dr. Subires Bhattacharya @ Subiresh Bhattacharjee
V.
The Central Bureau of Investigation
CRM (DB) 172 of 2024
(Under RC-05A/2022)
In the matter of : Dr. Subires Bhattacharya @ Subiresh
Bhattacharjee
V.
The Central Bureau of Investigation
CRM (DB) 427 of 2024
(Under RC-03A/2022)
In the matter of : Ashok Kumar Saha
V.
The Central Bureau of Investigation
CRM (DB) 418 of 2024
(Under RC-05A/2022)
In the matter of : Ashok Kumar Saha
V.
The Central Bureau of Investigation
CRM (DB) 467 of 2024
(Under RC-03A/2022)
In the matter of : Kalyanmoy Ganguly
V.
The Central Bureau of Investigation
CRM (DB) 481 of 2024
(Under RC-03A/2022)
In the matter of : Koushik Ghosh
V.
The Superintendent, The Central Bureau of Investigation
2
CRM (DB) 248 of 2024
(Under RC-03A/2022)
In the matter of : Sk. Ali Imam & Md. Sahid Imam.
V.
The Superintendent, The Central Bureau of Investigation
CRM (DB) 823 of 2024
(Under RC-03A/2022)
In the matter of : Santi Prasad Sinha
V.
The Central Bureau of Investigation
CRM (DB) 818 of 2024
(Under RC-04A/2022)
In the matter of : Santi Prasad Sinha
V.
The Central Bureau of Investigation
CRM (DB) 822 of 2024
(Under RC-05A/2022)
In the matter of : Santi Prasad Sinha
V.
The Central Bureau of Investigation
CRM (DB) 2564 of 2024
(Under RC-03A/2022)
In the matter of : Subrata Samanta Roy @ Babu
V.
The Superintendent, The Central Bureau of Investigation
CRM (DB) 2562 of 2024
(Under RC-02A/2022)
In the matter of : Subrata Samanta Roy @ Babu
V.
The Superintendent, The Central Bureau of Investigation
CRM (DB) 583 of 2024
(Under RC-05A/2022)
In the matter of : Partha Chatterjee
V.
The Central Bureau of Investigation
CRM (DB) 2543 of 2024
(Under RC-05A/2022)
In the matter of : Chandan Mondal @ Ranjan
V.
The Superintendent, The Central Bureau of Investigation
3
Before: The Hon'ble Justice Arijit Banerjee
The Hon'ble Justice Apurba Sinha Ray
For the petitioners : Mr. Sandipan Ganguly, Sr. Adv.
(CRM (DB)/173/24, CRM Mrs. Manaswita Mukherjee, Adv.
(DB)/467/24 & CRM (DB)/172/24)
For the Petitioners : Mr. Rajat Sinha Roy, Adv.
(CRM (DB)/427/24) Mr. Surajit Basu, Adv.
For the Petitioners : Mr. Anirban Guhathakrta, Adv.
(CRM (DB)/481/24, CRM Mr. Sujan Chatterjee, Adv.
(DB)/248/24, CRM (DB)/2564/24,
CRM (DB)/ 2562/24, CRM Mrs. Nayana Mitter, Adv.
(DB)/2543/24) Mr. Souparna Sinha, Adv.
Mr. Rohan Bavishi, Adv.
Mr. Debdoot Bhattacharyya, Adv.
For the Petitioners in : Mr. Milon Mukherjee, Sr. Adv.,
(CRM (DB)/823/24, CRM Mr. Biswajit Manna, Adv.
(DB)/818/24 & CRM (DB)/822/24)
Mr. Subhadeep Ghosh, Adv.
For the Petitioner : Mr. Milon Mukherjee, Sr. Adv.,
(in CRM (DB)/583/24) Mr. Sandipan Ganguly, Sr. Adv.,
Mr. Ayan Poddar, Adv.
Ms. Manaswita Mukherjee, Adv.
Mr. Soham Dutta, Adv.
For the Petitioners : Mr. Sekhar Kumar Bose, Sr. Adv.,
(in CRM (DB)/418/24) Mr. Rajat Sinha Roy, Adv.
Mr. Surajit Basu, Adv.
For C.B.I. in all the : Mr. Dhiraj Trivedi, learned DSGI,
matters Mr. Amajit De, Special PP, CBI,
Mr. Arijit Majumdar, Adv.
Ms. Supriti Sarkhel, Adv.
CAV On : 07.10.2024
Judgment On : 20.11.2024
Arijit Banerjee, J.: -
1. These 14 bail applications have common factual background. Therefore,
the applications were taken up for hearing together. Before addressing each
4
application individually, it may be helpful to dilate briefly on the object of bail
and the principles governing grant of bail.
2. The Code of Criminal Procedure does not define the word "bail". Black's
Law Dictionary,4thEdition, defines bail assecurity for the appearance ofan
accused person, on furnishing which he is released from custody pending trial
or investigation. The object of bail is to procure the release of a person from
legal custody by undertaking that he/she shall appear at the time and place
designated and submit himself/herself to the jurisdiction and judgment of the
Court.
3. Bail jurisprudence pertains to the laws, rules and judicial decisions
governing the release of an accused person from judicial custody pending trial
or investigation. It encompasses an under-trial person's right to liberty, the
presumption of innocence and fair trial while keeping in mind the State's
interest in ensuring administration of justice and preventing potential harm to
the society. Bail jurisprudence ensures that an individual is not unnecessarily
detained in judicial custody if he does not pose flight risk or danger to the
society at large, pending trial. It strikes a balance between protecting public
safety and ensuring that the rights of the accused person are respected.
4. From very early times, it has been held by the Courts that the object of
bail is neither punitive nor preventive. The object is to secure the appearance of
the accused person at his trial. Deprivation of liberty must be considered to be
a punishment unless the same is required to ensure that an accused person
will attend his trial. Every person is presumed to be innocent until proved
5
guilty following due process of law. One cannot punish an accused person
before he is convicted. Unless it is found by the Courts that an accused person
is unlikely to attend his trial if set at large, bail should not be denied to a
person who is in judicial custody. Bail has always been and still is the rule.
Jail has been and still is the exception. In our country it would be wholly
contrary to the concept of personal liberty enshrined in Article 21 of our
Constitution that any person should be punished in respect of a matter in
which he has not been convicted as yet. Any imprisonment before conviction
has a punitive element and it would be improper for any Court to refuse bail as
mark of disapproval of former conduct of the accused irrespective of whether or
not he has been convicted for it or to refuse bail to an unconvicted person for
the purpose of giving him a taste of imprisonment as a lesson. In this
connection one may refer to the decision of the Hon'ble Supreme Court in the
case of Sanjay Chandra v. Central Bureau of Investigation, AIR 2012 SC
830.
5. In the decision of the Hon'ble Apex Court referred to above, two other
things were also held. Firstly, seriousness of the offence alleged should not be
treated as the only ground for refusal of bail. Secondly, if bail is refused to an
accused person under Sections 437 or 439 of the Cr.P.C. and he is detained in
judicial custody for an indefinite period of time because his trial is taking
considerable time, the same would be violative of his fundamental right to
personal liberty guaranteed by Article 21 of the Constitution. In other words, if
a trial is prolonged for no fault of the accused person, on the ground of
6
inordinate delay in completion of the trial, bail should be granted to that
person on the touch- stone of Article 21 of the Constitution which guarantees
personal liberty and also contemplates a citizen's right to speedy trial/justice.
In Unnikrishnan J. P. & Ors. v. State of A. P. & Ors., reported at AIR
1993 SC 2178, the Hon'ble Supreme Court enumerated the rights under
Article 21 of the Constitution which should be treated as rights to personal
liberty. Such rights include the right to speedy trial.
6. The fundamental principle of our criminal jurisprudence is that a person
shall not be deprived of his liberty, except for having committed a clear breach
of law. If there is no real risk of an accused person fleeing from the course of
justice or influencing the trial, there is no reason why he should be kept
incarcerated in a correctional home during the period of his trial. The basic
rule always was and still is to release such a person on bail unless of course,
there are clear circumstances suggesting the possibility of the person
disappearing or thwarting the courseof justice. Various decisions of the Hon'ble
Supreme Court have held that when bail is refused,it is a restriction of
personal liberty of the individual guaranteed by Article 21 of the Constitution
and therefore, such refusal must be rare.In this connection, one may refer to
the decisions in the cases of State of Rajasthan v. Balchand, AIR 1977 SC
2447 and Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court
of A.P., AIR 1978 SC 429.
7. Apart from Unnikrishnan's case referred to above, some other decisions
in which the Hon'ble Supreme Court has declared that speedy trial of a case of
7
an under-trial prisoner is his fundamental right under Article 21 of the
Constitutionare as follows:-
(i) Babubhai Bhimabhai Bokhiria & Anr. v. State of Gujarat&
Ors., (2013) 9 SCC 500.
(ii) Vakil Prasad Singh v. State of Bihar, (2009) 3 SCC 355.
(iii) A. R. Antulay v. R.S. Nayak & Anr., AIR 1992 SC 1701.
(iv) Kadra Pehadiya & Ors. v. State of Bihar, AIR 1981 SC
939.
(v) Hussainara Khatoon v. State of Bihar, AIR 1976 SC 1360.
8. In this connection one may also note that a Constitution Bench of the
Hon'ble Apex Court in the case of P. Ramachandra Rao v. State of
Karnataka, (2002) 4 SCC 578 (a seven Judge Bench) has laid down that
although speedy trial is a fundamental right of an accused/under trial under
Article 21 of the Constitution, yet, courts cannot prescribe any specific time
limit for the conclusion of a criminal trial. In a recent decision in the case of
Javed Gulam Nabi Shaikh v. State of Maharashtra and Anr., reported at
2024 SCC OnLine SC 1693, the Hon'ble Supreme Court observed that if the
State or any prosecuting agency, including the Court concerned, do not have
the wherewithal to protect the fundamental right of an accused to have a
speedy trial as enshrined in Article 21 of the Constitution, then the State or
any other prosecuting agency should not oppose the plea for bail on the ground
that the crime committed is serious. Article 21 of the Constitution applies
irrespective of the nature of the crime. The Hon'ble Apex Court further
8
observed as follows:- "We wonder by what period of time the trial would
ultimately conclude. Howsoever serious a crime may be,an accused has a right
to speedy trial as enshrined under the Constitution of India. Over a period of
time, the trial courts and the High Courts have forgotten a very well settled
principle of law that bail is not to be withheld as a punishment." It was further
observed that refusal to grant bail is an unjust punishment leading to
"prisonisation" of an accused, who is presumed to be innocent until proven
guilty.
9. In an Article captioned "An Analytical Study of Bail Jurisprudence and
the Discretionary Power of Court Relating to Bail in India",published in Volume
4 Issue 2 of the International Journal of Humanities, Social Science and
Management, the joint Authors of the Article have noted that by allowing the
accused to be released on bail,bail jurisprudence contributes to the efficient
functioning of the legal system. It reduces overcrowding in prisons, minimizes
delays in trial proceedings and enables the accused persons to participate
effectively in their defense. In the same article, the Authors have opined that
the following are the factors which a Court should take into account in
exercising its discretion judiciously while hearing a bail application:-
(i) Nature and gravity of the offence:offences involving violence,
economic crimes or threats to national security may warrant
stricter scrutiny.
(ii) Evidence and prima facie case.
(iii) Flight risk.
9
(iv) Criminal history.
(v) Victim's rights and public safety.
(vi) Special circumstances like medical conditions age, family
responsibilities and cooperation with law enforcement.
10. Bail should not be denied as a form of punishment prior to conviction.
One must remember that unless guilt is proven, there remains a presumption
of innocence under criminal law. The guilt must be established beyond
reasonable doubt. Denial of bail also affects the right of an accused person to a
fair trial since he hasvery limited contact with his lawyers and that too, in a
tightly restricted environment. A person on bail has a greater opportunity for
preparing or presenting his case than one who is detained in judicial custody.
As was observed by Justice Krishna Iyer and quoted in Aero Traders(p)
Limited v. Ravinder kumar Suri, reported at (2004) 8 SCC 307,
mechanical detention should be reduced if public justice is to be promoted. In
several decisions, the Hon'ble Supreme Court has laid down the considerations
for grant or refusal of bail to an accused in the case of a non-bailable offence.
They are :-
(1) Whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence.
(2) Nature of accusation and evidence therefor.
(3) Gravity of the offence and punishment which the conviction will
entail.
10
(4) Reasonable possibility of securing presence of the accused at
trial and danger of his absconding or fleeing if released on bail.
(5) Character and behavior of the accused.
(6) Means, position and standing of the accused in the society.
(7) Likelihood of the offence being repeated.
(8) Reasonable apprehension of the witnesses being tampered with
(9) Danger, of course, of justice being thwarted by grant of bail.
(10) Balance between the rights of the accused and the larger
interest of the society/State
(11) Any other factor relevant and peculiar to the accused.
(12) While a vague allegation that the accused may tamper with
evidence or witness may not be a ground to refuse bail, but if the
accused is of such character that his mere presence at large would
intimidate the witnesses or if there is material to show that he will
use his liberty to subvert justice or tamper with evidence, then bail
will be refused.
In this connection one may refer to the following decisions of the Hon'ble
Apex Court
a) Sanghian Pandian Rajkumar v. CBI & Anr., (2014) 12 SCC 23.
b) Nimmagadda Prasad v. CBI, (2013) 7 SCC 466.
c) Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation,
AIR 2013 SC 1933.
d) Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446.
11
e) Dipak Shubhashchandra Mehta v. CBI, AIR 2012 SC 949.
f) Prakash Kadam v. Ramprasad Vishwanath Gupta, (2011) 6
SCC 189.
g) Gokul Bhagaji Patil v. State of Maharashtra, (2007) 2 SCC
475.
h) Anil Kumar Tulsiyani v. State of U.P. & Anr., (2006) 9 SCC
425.
i) State of U.P. Through CBI v. Amarmani Tripathi, (2005) 8 SCC
21.
j) Surinder Singh v. State of Punjab & Ors., (2005) 7 SCC 387.
k) Panchanan Misrav. Digambar Misra & Ors., (2005) 3 SCC 143.
l) Chamanlal v. State of U.P., (2004) 7 SCC 525.
m) State of Gujarat v. Salimbhai Abdul Gaffar, (2003) 8 SCC 50.
n) Mansab Ali v. Irsan, (2003) 1 SCC 632.
11. In the present case, the accused persons have all been arraigned in
connection with what has come to be known as the School Service Commission
(SCC) scam. Basically, the allegation is that the accused persons collected huge
sums of money by promising jobs as teachers to various persons, who were not
entitled to such appointments. The Central Bureau of Investigation (CBI) has
registered diverse Regular Cases (RC) against the accused persons including
the petitioners in the bail applications under consideration.
12. Before taking up the bail applications individually, I would like to note
certain observations in four recent judgments of the Hon'ble Supreme Court.
12
13. In criminal Appeal no. 003166 of 2024 arising out of SLP (Criminal) No.
12769 of 2023 (Anubrata Mondal @ Kesto v. The Central Bureau of
Investigation & Anr.), the charge against the appellant was under Section
420 IPC read with Sections 7,9,12,13(2) and 13(1) (d) of the Prevention of
Corruption Act, 1988. He was taken into custody on August 11, 2022. He failed
to obtain bail before the learned Trial Court or the High Court. By a judgment
and order dated July 30, 2024, the Hon'ble Supreme Court granted bail to the
appellant, observing inter alia as follows:-
"5. Having regard to the submissions made by the learned senior
counsels appearing for the parties and to the documents placed on
record before us, it appears that there are serious allegations
against the appellant-accused, however he is in custody since
11.08.2022 (approximately two years till today) and the trial is at
the stage of submission of documents of the charge-sheet under
Section-207 of the Cr.P.C. It also appears that the papers of the
charge-sheet are very voluminous and some of them are in Bengali
language, for which, the Special Court has directed the
respondent-CBI to get them translated. The learned ASG, Mr. S.V.
Raju, has assured this Court that all the documents shall be
translated at the earliest, preferably within 45 days from today.
However, from the voluminous record of the charge-sheet, it
appears that the trial will take long time. It is also not disputed
that the other co-accused, more particularly, the accused no.2 Md.
13
Enamul Haque, has been released on bail by this Court vide Order
dated 24.01.2022."
14. In Criminal Appeal no. 003295 of 2024 arising out of SLP (Criminal) No.
8781 of 2024. (Manish Sisodia vs. Directorate of Enforcement), charge
sheet was filed against the appellant under Sections 7, 7A, 8 and 12 of the
Prevention of Corruption Act, 1988 read with Sections 420, 201 and 120B of
the IPC. The appellant was unsuccessful in obtaining bail from the Delhi High
Court. The Hon'ble Supreme Court allowed the appeal of the appellant and
granted him bail, inter alia, observing as follows:-
"54. In the present case, in the ED matter as well as the CBI
matter, 493 witnesses have been named. The case involves
thousands of pages of documents and over a lakh pages of digitized
documents. It is thus clear that there is not even the remotest
possibility of the trial being concluded in the near future. In our
view, keeping the appellant behind the bars for an unlimited period
of time in the hope of speedy completion of trial would deprive his
fundamental right to liberty under Article 21 of the Constitution.
As observed time and again, the prolonged incarceration before
being pronounced guilty of an offence should not be permitted to
become punishment without trial.
55. As observed by this Court in the case of Gudikanti
Narasimhulu (supra), the objective to keep a person in judicial
14
custody pending trial or disposal of an appeal is to secure the
attendance of the prisoner at trial.
56. In the present case, the appellant is having deep roots in the
society. There is no possibility of him fleeing away from the country
and not being available for facing the trial. In any case, conditions
can be imposed to address the concern of the State.
57. Insofar as the apprehension given by the learned ASG
regarding the possibility of tampering the evidence is concerned, it
is to be noted that the case largely depends on documentary
evidence which is already seized by the prosecution. As such, there
is no possibility of tampering with the evidence. Insofar as the
concern with regard to influencing the witnesses is concerned, the
said concern can be addressed by imposing stringent conditions
upon the appellant."
15. In Jalaluddin Khan v. Union of India, (Criminal Appeal no. 3173 of
2024), the charge against the appellant was under Sections 121, 121A and
122 of the Indian Penal Code read with Sections 13, 18, 18A and 20 of the
Unlawful Activities (Prevention) Act, 1967. The Special Court under the UAPA
as well as the High Court rejected the appellant's prayer for bail. By its
judgment and order dated August 13, 2024, while granting bail to the
appellant, the Hon'ble Supreme Court in paragraph 21 of the Judgment,
observed as follows:-
15
"21. Before we part with the Judgment, we must mention here that
the Special Court and the High Court did not consider the material
in the charge sheet objectively. Perhaps the focus was more on the
activities of PFI, and therefore, the appellant's case could not be
properly appreciated. When a case is made out for a grant of bail,
the Courts should not have any hesitation in granting bail. The
allegations of the prosecution may be very serious. But, the duty of
the Courts is to consider the case for grant of bail in accordance
with the law. "Bail is the rule and jail is an exception" is a settled
law. Even in a case like the present case where there are stringent
conditions for the grant of bail in the relevant statutes, the same
rule holds good with only modification that the bail can be granted
if the conditions in the statute are satisfied. The rule also means
that once a case is made out for the grant of bail, the Court cannot
decline to grant bail. If the Courts start denying bail in deserving
cases, it will be a violation of the rights guaranteed under Article
21 of our Constitution."
16. In V. Senthil Balaji v. Deputy Director, Directorate of Enforcement,
2024 SCC OnLine SC 2626, the allegation against the appellant was basically
that while discharging his duties as Transport Minister of Tamil Nadu, in
connivance with his personal assistant and his brother, he collected large sums
of money by promising job opportunities to several persons in various positions
in the Transport Department. This led to the registering of three First
16
Information Reports against the appellant and others, under various Sections
of Indian Penal Code and Prevention of Corruption Act, 1988. Since the
offences alleged were scheduled offences within the meaning of Section 2(y) of
the Prevention of Money Laundering Act, 2002 (in short 'PMLA'), relying on the
final reports filed in respect of the scheduled offences, the Enforcement
Directorate registered an Enforcement Case Information Report for the offence
of Money Laundering under section 3 of the PMLA. The appellant was arrested.
After some time, he applied for bail. The Madras High Court rejected the bail
application. The Hon'ble Supreme Court allowed the appeal and granted bail to
the accused noting that the accused was in custody for 15 months. In the
judgment, the Hon'ble Supreme Court made, inter alia, the following
observations:-
"22. In the case of K.A. Najeeb2, in paragraph 17 this Court held
thus:
"17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D (5) of the UAPA per se does not
oust the ability of the constitutional courts to grant bail on
grounds of violation of Part III of the Constitution. Indeed, both
the restrictions under a statute as well as the powers exercisable
under constitutional jurisdiction can be well harmonised.
Whereas at commencement of proceedings, the courts are
expected to appreciate the legislative policy against grant of
bail but the rigours of such provisions will melt down where
17
there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed
sentence. Such an approach would safeguard against the
possibility of provisions like Section 43-D(5) of the UAPA
being used as the sole metric for denial of bail or for
wholesale breach of constitutional right to speedy trial."
(emphasis added)
* * *
24. There are a few penal statutes that make a departure from the
provisions of Sections 437, 438, and 439 of the Code of Criminal
Procedure, 1973. A higher threshold is provided in these statutes for
the grant of bail. By way of illustration, we may refer to Section
45(1)(ii) of PMLA, proviso to Section 43D(5) of the Unlawful Activities
(Prevention) Act, 1967 and Section 37 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). The
provisions regarding bail in some of such statutes start with a non
obstante clause for overriding the provisions of Sections 437 to 439 of
the Cr.PC. The legislature has done so to secure the object of making
the penal provisions in such enactments. For example, the PMLA
provides for Section 45(1)(ii) as money laundering poses a serious
threat not only to the country's financial system but also to its
integrity and sovereignty.
18
25. Considering the gravity of the offences in such statutes,
expeditious disposal of trials for the crimes under these statutes is
contemplated. Moreover, such statutes contain provisions laying
down higher threshold for the grant of bail. The expeditious disposal
of the trial is also warranted considering the higher threshold set for
the grant of bail. Hence, the requirement of expeditious disposal of
cases must be read into these statutes. Inordinate delay in the
conclusion of the trial and the higher threshold for the grant of bail
cannot go together. It is a well-settled principle of our criminal
jurisprudence that "bail is the rule, and jail is the exception." These
stringent provisions regarding the grant of bail, such as Section
45(1)(iii) of the PMLA, cannot become a tool which can be used to
incarcerate the accused without trial for an unreasonably long time.
26. There are a series of decisions of this Court starting from the
decision in the case of K.A. Najeeb2, which hold that such stringent
provisions for the grant of bail do not take away the power of
Constitutional Courts to grant bail on the grounds of violation of Part
III of the Constitution of India. We have already referred to paragraph
17 of the said decision, which lays down that the rigours of such
provisions will melt down where there is no likelihood of trial being
completed in a reasonable time and the period of incarceration
already undergone has exceeded a substantial part of the prescribed
sentence. One of the reasons is that if, because of such provisions,
19
incarceration of an under-trial accused is continued for an
unreasonably long time, the provisions may be exposed to the vice of
being violative of Article 21 of the Constitution of India.
* * *
28. Some day, the courts, especially the Constitutional Courts, will
have to take a call on a peculiar situation that arises in our justice
delivery system. There are cases where clean acquittal is granted by
the criminal courts to the accused after very long incarceration as an
under-trial. When we say clean acquittal, we are excluding the cases
where the witnesses have turned hostile or there is a bona fide
defective investigation. In such cases of clean acquittal, crucial years
in the life of the accused are lost. In a given case, it may amount to
violation of rights of the accused under Article 21 of the Constitution
which may give rise to a claim for compensation.
29. As stated earlier, the appellant has been incarcerated for 15
months or more for the offence punishable under the PMLA. In the
facts of the case, the trial of the scheduled offences and,
consequently, the PMLA offence is not likely to be completed in three
to four years or even more. If the appellant's detention is continued, it
will amount to an infringement of his fundamental right under Article
21 of the Constitution of India of speedy trial."
17. Now I will take up the bail application(s) of each of the petitioners, one by
one.
20
In Re: Dr. Subires Bhattacharya @ Subiresh Bhattacharjee, CRM (DB) No.
173 of 2024 (arising out of RC no. 03A of 2022)
and
In Re: Dr. Subires Bhattacharya @ Subiresh Bhattacharjee, CRM (DB) No.
172 of 2024 (arising out of RC no. 05A of 2022)
18. In CRM (DB) No.173 of 2024 the petitioner seeks bail in connection with
RC no. 3 of 2022. In CRM(DB) No. 172 of 2024 the petitioner seeks bail in
connection with RC no. 5 of 2022.
19. Learned Counsel for the petitioner submitted that the petitioner was
arrested on September 19, 2022, in connection with RC 3 of 2022. Although he
was not named in the First InformationReport, he was formally shown as an
accused person in the Charge Sheet dated October 21, 2022, under Sections
120B/109//467/468/471 of IPC read with Sections 7/7A/8 of the Prevention
of Corruption Act, 1988. Supplementary charge sheetdated March 15, 2023
was filed by CBI against 9 accused persons including this petitioner, under
Sections 120B/201/420/467/468/471 of the IPC read with Sections 7 and 8
of the Prevention of Corruption Act, 1988. The petitioner was shown arrested in
connection with RC 5 of 2022 on December 16, 2022.
20. The petitioner was the Chairman of the West Bengal Central School Service
Commission (in short WBCSSC) and was also the Chairman-in-charge of the
Southern Regional Office of WBCSSC. He resigned from the post of Chairman
of WBCSSC in May, 2018 and joined the post of Vice-Chancellor in North
Bengal University.
21
21. The charges against the petitioner are under Sections
120B/420/109/467/468/471 of IPC and Sections 7/7A/8 of the Prevention of
Corruption Act, 1988. He had approached this Court within 90 days of his
custodial detention. His prayer for bail was rejected videorder dated December
21, 2022 passed in CRM (DB) no. 4394 of 2022. The petitioner is renewing his
prayer for bail.
22. It was submitted on behalf of the petitioner that he is in custody for about
1 year and 10 months.The Hon'ble Supreme Court has enlarged on bail a co-
accused person, viz, Prasanna Kumar Roy @ Rakesh vide order dated
10.11.2023 passed in Special Leave to Appeal (Crl) No. 12763 of 2023, after he
was in judicial custody for 440 days. This Court has enlarged on bail an
employee of the said Prasanna Kumar Roy i.e., one Pradip Singh @ Chotu
vide order dated 8.01.2024 passed in CRM (DB) no. 4647 of 2023, after he had
under gone custodial detention for 502 days. The Hon'ble Supreme Court has
also enlarged on bail, Jiban Krishna Saha, a Member of the Legislative
Assembly, West Bengalby order dated 14.05.2024 passed in SLP (CRL) No.
13090 of 2023, after the said accused person was in judicial custody for 393
days. Learned Counsel submitted that the petitioner is similarly circumstanced
as the aforesaid accused persons who have been enlarged on bail.
23. It was submitted that the petitioner has cooperated with the investigation.
His residence inKolkata, his ancestral residence in Agartala and his official
residence and office in North Bengal were searched by CBI. Nothing
incriminating was recovered therefrom. The allegation of issuing forged
22
recommendation letters is notagainst the petitioner. The CBI, till date, has not
been able to show any money trail with regard to the petitioner in any of the
charge-sheets. He is 64 years old and suffers from various ailments including
severe vertigo, combined with vomiting, heavy sweating, low blood pressure
and loss of body balance. The trial has not even started. The CBI proposes to
examine 135 witnesses and rely on 382 documents as would appear from the
relevant charge-sheets. On merits, as also on the ground of delay in trial, the
petitioner renewed his prayers for bail.
24. The CBI vehemently opposed the prayer. Learned Counsel for CBI said that
there is sufficient incriminating evidence against the petitioner. He was an
integral part of the conspiracy to collect large sums of money from
unsuspecting persons by promising to them jobs as teachers. He was also
instrumental in generating forged appointment letters. CBI is not responsible
for the delay in progress of the trial.
25. The State Government has not yet granted sanction for prosecution which
is required as regards some of the accused persons. In fact, the State
Government has neither granted nor refused to grant such sanction for
prosecution. It is sitting tight over the matter. Considering the gravity of the
offence alleged, the petitioner's prayer should be rejected.
25A. It was also submitted that further investigation is being conducted
pursuant to orders of this Court. It may be necessary to interrogate the
petitioner further if fresh incriminating material against the petitioner comes to
light.
23
26. I find from the records that charge is yet to be framed. Some of the accused
persons are yet to be apprehended. The State Government is sitting tight over
the issue of grant or refusal of sanction to prosecute some of the accused
persons to proceed against whom, sanction of the Government is necessary
under the law. CBI has also not approached any competent forum for a
direction on the State Government to take a decision on the issue of grant or
refusal of such sanction. Without such sanction, the trial is unlikely to
proceed. Theoretically the trial may be split up against the accused persons.
However, given the nature for the offences alleged in the present case, that may
not be an appropriate procedure.
27. I also note that co-accused persons have been granted bail by the Hon'ble
Supreme Court primarily on the ground of lengthy detention in judicial custody
without there being any progress in the trial, as noted above.
28. I do not wish to dilate on the merits of the case or make any observation in
that regard. However, I do not find any significant difference between thefooting
on which this petitioner stands and the footing on which the other accused
persons, who have been granted bail, stand. The basic charge against all the
accused persons is to hatch a criminal conspiracy to defraud members of the
public by meting out false promises of securing jobs for them as teachers
against payment of money.
29. Further, I have noted in the general discussion on criminal jurisprudence
pertaining to bail that right to speedy trial is now recognised as a fundamental
right of an under trial person, under Article 21 of the Constitution of India. If
24
the State or the Court is not in a position to conclude the trial within a
reasonable period of time, an under trial cannot be kept in incarceration for an
indefinite period of time in negation of his fundamental right to personal
liberty.
30. After all, a fundamental principle of criminal jurisprudence of this country
is that a person is presumed to be innocent until proved to be guilty before a
competent Court of law following due process. A person cannot be damnified by
being detained in judicial custody for days together without being convicted.
31. In the present case, the prosecution may or may not have strong
incriminating material against the petitioner. I do not wish to make any
comment on that nor is the same necessary. Nobody stands in the way of the
prosecution securing the petitioner's conviction by carrying the trial to its
logical conclusion in accordance with law and with expedition. In the facts of
the present case, however, there does not appear to be any possibility of the
trial concluding on an early date. The trial has not even begun. The number of
witnesses that the prosecution intends to examine and the number of
documents that it proposes to exhibitwould itself indicate that there is no
likelihood of the trial coming to an end in the near future.
32. The petitioner is a senior citizen. He appears to be suffering from various
ailments. There does not seem to be any likelihood of the petitioner fleeing from
justice. Investigation is complete. It is not the case of the prosecution that the
petitioner is such an influential person that if released on bail, he is likely to
tamper with evidence or influence prosecution witnesses.Given the offences
25
alleged against the petitioner, the evidence against the petitioner would be
largely documentary in nature which by now the prosecution would
presumably have gathered. In view of the long detention of the petitioner in
judicial custody coupled with the fact that the trial has not progressed to any
extent, on the touch stone of Article 21 of the Constitution, I am inclined to
allow the petitioner's prayer for bail.
32A. In so far as further investigation is concerned, nothing in this judgment
and order will stand in the way of CBI conducting the same or interrogating the
petitioner further. However, in my opinion, further custodial interrogation of
the petitioner is not warranted.
33. Therefore, the accused/petitioner, namely Dr. Subires Bhattacharya @
Subiresh Bhattacharjee, [CRM (DB) 173 of 2024 (under RC-03A/2022 and
CRM (DB) 172 of 2024 (under RC-05A/2022)] be released on bail (unless he
is under arrest in some other case)upon furnishing a bond of Rs.50,000/-
(Rupees Fifty thousand only), with two sureties of Rs.25,000/- each, one of
whom must be local, to the satisfaction of the learned Chief Judicial
Magistrate, Alipore, South 24-Parganas subject to condition that the said
petitioner shall appear before the trial court on every date of hearing until
further orders and shall not intimidate witnesses or tamper with evidence in
any manner whatsoever or commit similar offences in future and on further
condition that the petitioner, while on bail, shall not leave the territory of the
State of West Bengal without prior permission of this court and shall report to
the Superintendent of Police, CBI, ACB, Kolkata, once in a week until further
26
orders. Prior to his release on bail, he shall deposit his Passport, if any, to the
trial court.
34. In the event he fails to appear before the trial court without justifiable
cause, the trial court shall be at liberty to cancel his bail automatically without
reference to this court.
35. The application for bail, thus, stands allowed.
In Re: Sri. Ashok Kumar Saha CRM (DB) No. 418 of 2024 (arising out of RC
No. 05A of 2022)
And
In Re: Sri. Ashok Kumar Saha CRM (DB) No. 427 of 2024 (arising out of RC
No. 03A of 2022)
36. In CRM (DB) no. 418 of 2024, the petitioner seeks bail in connection with
RC 5 of 2022. In CRM (DB) no. 427 of 2024, the petitioner seeks bail in
connection with RC 3 of 2022.
37. In connection with RC 5 of 2022, the petitioner was taken into custody on
August 10, 2022. In connection with RC 3 of 2022, the petitioner was shown
arrested on production on November 29, 2023.
38. Learned Advocate for the petitioner submitted that the petitioner acted as
the Assistant Secretary, WBCSSC from October 5, 2015. In RC 3 of 2022,the
allegations against the petitioner are under Sections 120B/428 of IPC read
with Section 7 of the Prevention of Corruption Act, 1988. In RC 5 of 2022, the
allegations against the petitioner are under Sections 417/465/468/34 of IPC
read with Section 7 of the Prevention of Corruption Act.
27
39. It was submitted that the petitioner is 70 years old. He is a retired public
servant. Without prior sanction from the State Government, CBI completed the
investigation against the petitioner in violation of Section 197 Cr.P.C. and
Sections 17A and 19 of Prevention of Corruption Act, 1988. Learned Trial Court
has still not taken cognizance of the charge sheet dated September 30, 2022,
or the supplementary charge sheets dated March 15, 2023 and July 14, 2023,
which implicate the petitioner. Without taking cognizance remanding the
petitioner to custody beyond the statutory permissible period is illegal. In this
connection reliance was placed on Section 309(2) of Cr.P.C, the material
portion whereof reads thus:-
"(2) If the Court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to postpone
the commencement of, or adjourn, any inquiry or trial, it may,
from time to time, for reasons to be recorded, postpone or adjourn
the same on such terms as it thinks fit, for such time as it
considers reasonable, and may by a warrant remand the accused if
in custody"
40. It was further submitted that sanction has still not been granted by the
State Government. Therefore, learned Trial Court has not taken cognizance of
the alleged offence. The petitioner is in custody for more than 2 years. There is
no possibility of the trial beginning on an early date, letalone an early
conclusion of the trial. On the ground of breach of the petitioner's fundamental
28
right under Article 21 of the Constitution of India, the petitioner should be
enlarged on bail.
41. The CBI strongly opposed the prayer for bail. Learned Counsel for CBI
submitted that there is sufficient material implicating the petitioner in the
alleged offence of criminal conspiracy to cheat members of the public. The
offence alleged is of a grave nature. If the petitioner is granted bail, he is likely
to tamper with evidence.
42. I find that the petitioner is in judicial custody for almost 2 years and 3
months. Trial has not begun. In fact cognizance of the alleged offence is yet to
be taken by the learned Trial Court. The prosecution intends to examine more
than 100 witnesses and proposes to exhibit a large number of documents. CBI
has not taken any legal step for obtaining sanction to prosecute the accused
persons who are retired public servants. It is anybody's guess as to when the
trial will begin or end.
43. By the present judgment and order, I have granted bail to a co-accused
person i.e., Dr. Subires Bhattacharya @ Subiresh Bhattacharjee against whom
the charges are graver. For the same reasons for which I allowed the bail
prayer of Dr. Subires Bhattacharya, I am inclined to allow the instant bail
petition. In other words, primarily on the ground of inordinate delay in the
progress of the trial and considering that this petitioner stands on a better
footing than Dr. Subires Bhattacharya who has been enlarged on bail, I allow
this application.
29
44. Therefore, the accused/petitioner, namely, Sri. Ashok Kumar Saha [CRM
(DB) No. 418 of 2024 arising out of RC No. 05A of 2022) and CRM (DB) No.
427 of 2024 (arising out of RC No. 03A of 2022)], be released on bail (unless
he is under arrest in some other case) upon furnishing a bond of Rs.50,000/-
(Rupees Fifty thousand only), with two sureties of Rs.25,000/- each, one of
whom must be local, to the satisfaction of the learned Chief Judicial
Magistrate, Alipore, South 24-Parganas subject to condition that the said
petitioner shall appear before the trial court on every date of hearing until
further orders and shall not intimidate witnesses or tamper with evidence in
any manner whatsoever or commit similar offences in future and on further
condition that the petitioner, while on bail, shall not leave the territory of the
State of West Bengal without prior permission of this court and shall report to
the Superintendent of Police, CBI, ACB, Kolkata, once in a week until further
orders. Prior to his release on bail, he shall deposit his passport, if any, to the
trial court.
45. In the event he fails to appear before the trial court without justifiable
cause, the trial court shall be at liberty to cancel his bail automatically without
reference to this court.
46. The application for bail, thus, stands allowed.
In Re: Dr. Kalyanmoy Ganguly, CRM (DB) No. 467 of 2024 (arising out of
RC No. 03A of 2022)
47. The petitioner was appointed as the President of the West Bengal Board of
Secondary Education in the year 2016. He retired as the President of the Ad-
30
hoc Committee of the West Bengal Board of Secondary Education on June 24,
2022. RC-05 of 2022 was registered by the CBI against several accused
persons including the petitioner. In connection with that case the petitioner
was arrested on September 15, 2022. The case, in connection with which the
present bail application has been filed being RC No. 3 of 2023 was registered
by CBI against several accused persons including the petitioner under Sections
120B/420/109/467/468/471 of IPC and Sections 7/7A/8 of the Prevention of
Corruption Act, 1988. In connection with that case, he was shown arrested on
November 29, 2023.
48. It was submitted on behalf of the petitioner that he has been granted bail
in connection with RC No. 5 of 2022 by this Court by order dated November 29,
2023 passed in CRM (DB) No. 4100 of 2023. The allegations against him in the
instant RC No. 03 are identical with that in RC No. 05. Hence, he should be
granted bail in this case also. Learned Counsel for the petitioner submitted
that co-accused persons standing on the same footing as the petitioner, namely
Prasanna Kumar Roy @ Rakesh and Jiban Krishna Saha have been enlarged
on bail by the Hon'ble Supreme Court.
49. It was further submitted that the arrest of the petitioner in connection with
the instance case was mala fide. His bail prayer in connection with RC No. 05
was allowed by this Court in the first half on November 29, 2023. On that very
date, in the second half, the CBI obtained an order from the learned Trial Court
for showing the petitioner as arrested in connection with RC No. 03 of 2023.
31
50. It was submitted that till date the CBI has not been able to show whether
or not the petitioner is the recipient of any ill-gotten money. No property
belonging to the petitioner has been attached. He was not named in the FIR. He
is not the prime accused. The appointment letters were issued on the basis of
recommendation letters provided by the WBCSSC. The West Bengal Board of
Primary Education was merely the appointing authority on the basis of
recommendations made by WBCSSC.
51. Learned Counsel submitted that the petitioner is in judicial custody for
more than 2 years taking into account his custodial detention in connection
with RC No. 5 of 2022. Learned Trial Court has not even taken cognizance
since sanction of the State Government under Section 17A of the Prevention of
Corruption Act has still not been granted. Considering the huge number of
witnesses proposed to be examined by the prosecution and large number of
documents proposed to be exhibited by the prosecution, nobody can say when
the trial will conclude. Hence, on the touch stone of Article 21 of the
Constitution, the petitioner's prayer for bail should be allowed.
52. Opposing the bail prayer, learned Advocate for the CBI submitted that the
petitioner had an active role to play in the alleged offence. He was a party to the
criminal conspiracy to cheat members of the public. There is sufficient
incriminating material implicating the petitioner in the alleged offence. The trial
has not been able to proceed since the State Government is sitting tight on the
issue of grant of sanction to prosecute under Section 17A of the Prevention of
32
Corruption Act. It is not the fault of the prosecution that there is delay in the
trial.
53. The petitioner is now in custody for almost 2 years and 2 months. He is 73
years old. He also appears to be suffering from various ailments. I find that he
is similarly circumstanced as a co-accused person, viz, Dr. Subires
Bhattacharya, who has been granted bail by this very judgment. Hence, on the
grounds on which I allowed the bail prayer of Dr. Subires Bhattarcharya, I am
inclined to allow the present bail petition, i.e., the ground oflengthy custodial
detention of the petitioner, coupled with the fact that the trial has not
progressed at all, thereby abrogating the petitioners' fundamental rights to
personal liberty and speedy trial enshrined in Article 21 of the Constitution of
India.
54. Therefore, the accused/petitioner, namely Dr. Kalyanmoy Ganguly, [CRM
(DB) No. 467 of 2024 (arising out of RC No. 03A of 2022)], be released on
bail (unless he is under arrest in some other case) upon furnishing a bond of
Rs.50,000/- (Rupees Fifty thousand only), with two sureties of Rs.25,000/-
each, one of whom must be local, to the satisfaction of the learned Chief
Judicial Magistrate, Alipore, South 24-Parganas subject to condition that the
said petitioner shall appear before the trial court on every date of hearing until
further orders and shall not intimidate witnesses or tamper with evidence in
any manner whatsoever or commit similar offences in future and on further
condition that the petitioner, while on bail, shall not leave the territory of the
State of West Bengal without prior permission of this court and shall report to
33
the Superintendent of Police, CBI, ACB, Kolkata, once in a week until further
orders. Prior to his release on bail, he shall deposit his passport, if any, to the
trial court.
55. In the event he fails to appear before the trial court without justifiable
cause, the trial court shall be at liberty to cancel his bail automatically without
reference to this court.
56. The application for bail, thus, stands allowed.
In Re: Koushik Ghosh, CRM (DB) No. 481 of 2024 (arising out of RC No.
03A of 2022)
57. The petitioner seeks bail in connection with RC No. 03 of 2022 registered
by the CBI against the petitioner, amongst others, alleging commission of
offence under Sections 120B/109/201/420/467/468/471 of IPC read with
Sections 7/7A/8 of the Prevention of Corruption Act, 1988.
58. It was submitted on behalf of the petitioner that his name was not there in
the FIR. His name transpired in the first supplementary charge sheet dated
May 16, 2023. He was arrested in connection with RC No. 03 of 2022 on
February 17, 2023. Since then he is in judicial custody.
59. Learned Counsel for the petitioner submitted that cognizance of the matter
has not yet been taken by the learned Trial Court for lack of sanction to
prosecute from the end of the State Government as required under Section 17A
of the Prevention of Corruption Act, since, some of the accused persons are
retired Government employees andthe allegations against them pertain to the
34
discharge of their duties in the course of such employment. Without taking
cognizance, the petitioner cannot be kept in judicial custody.
60. Learned Counsel primarily harped on the breach of the petitioner's
fundamental right to personal liberty and speedy trial. He submitted that the
petitioner has been in custody for over one year and eight months and there is
no possibility of an early beginning of the trial, let alone an early conclusion.
61. The arguments advanced on behalf of CBI were essentially the same as
were advanced in the other cases which I have dealt with hereinabove. In a
nutshell, learned Advocate for the CBI argued that the petitioner's role in the
alleged offence is well established by the material gathered by the prosecution.
He, in criminal conspiracy with the other accused persons, cheated a large
number of people and amassed huge wealth. Given the nature and gravity of
the alleged offence, the petitioner's prayer for bail should be rejected.
62. I do not wish to make any comment on the merits of the prosecution case
nor is the same warranted. I see that this petitioner does not stand on a worse
footing than some of the petitioners in the bail applications which I have
considered above, namely, Dr. Subires Bhattacharya and Dr. Kalyanmoy
Ganguly. Further, this petitioner also has been in incarceration for an
appreciable period of time i.e., more than one year and eight months without
there being any progress in the trial at all. Hence, keeping in mind the
principlesgoverning grant/rejection of bail prayer as discussed in the earlier
part of this judgment and also in view of the fundamental right to personal
liberty and speedy trial that every under trial citizen has, for the reasons
35
recorded in CRM (DB) 173 of 2024, I am inclined to allow the petitioner's
prayer for bail.
63. Therefore, the accused/petitioner, namely Koushik Ghosh, [CRM (DB) No.
481 of 2024 (arising out of RC No. 03A of 2022)], be released on bail (unless
he is under arrest in some other case) upon furnishing a bond of Rs.50,000/-
(Rupees Fifty thousand only), with two sureties of Rs.25,000/- each, one of
whom must be local, to the satisfaction of the learned Chief Judicial
Magistrate, Alipore, South 24-Parganas subject to condition that the said
petitioner shall appear before the trial court on every date of hearing until
further orders and shall not intimidate witnesses or tamper with evidence in
any manner whatsoever or commit similar offences in future and on further
condition that the petitioner, while on bail, shall not leave the territory of the
State of West Bengal without prior permission of this court and shall report to
the Superintendent of Police, CBI, ACB, Kolkata, once in a week until further
orders. Prior to his release on bail, he shall deposit his passport, if any, to the
trial court.
64. In the event he fails to appear before the trial court without justifiable
cause, the trial court shall be at liberty to cancel his bail automatically without
reference to this court.
65. The application for bail, thus, stands allowed.
In Re: Sk. Ali Imam & Md. Sahid Imam, CRM (DB) No. 248 of 2024 (arising
out of RC Case No. 03A of 2022)
36
66. These two petitioners have been implicated in RC No. 3 of 2022 registered
by the CBI under Sections 120B/109/201/420/467/468/471 of IPC read with
Sections 7/7A/8 of the Prevention of Corruption Act, 1988 against several
accused persons including these petitioners.
67. Learned Counsel submitted that the petitioners were arrested on February
17, 2023, and since then they are languishing in judicial custody. They have
been falsely implicated. They have no role to play in the alleged offence. Trial
has not progressed at all. The prosecution intends to examine 135 witnesses
and proposes to exhibit 382 documents, taking all the charge sheets
together.On the ground of violation of their fundamental right to personal
liberty and speedy trial, the petitioners prayed for bail.
68. Learned Advocate for CBI opposed the prayer for bail advancing the same
arguments that were made on behalf of CBI in the earlier bail applications
which I have disposed of hereinabove. Essentially, learned Advocate for CBI
emphasized that these two persons were actively involved in generating forged
appointment letters and receiving money from the beneficiaries of such letters.
If enlarged on bail, these petitioners are likely to tamper with evidence or
intimidate prosecution witnesses. The prosecution cannot be faulted for the
delay in progress of the trial. The petitioners' bail prayer should be rejected.
69. It appears from the material on record that the present petitioners stand
substantially on the same footing as Koushik Ghosh who has been granted bail
in CRM no. 481 of 2024 by this very judgment. The period of custodial
detention of Koushik Ghosh and the present petitioners is the same, i.e. more
37
than one year and eight months. For the same reasons for which the bail
prayer of Koushik Ghosh was allowed, I am inclined to allow the present
application for bail. In other words, essentially on the ground of long
incarceration of the petitioners without there being any progress in the trial,
thereby resulting in infringement of the petitioners' fundamental right to
personal liberty and speedy trial as enshrined in Article 21 of the Constitution
of India, as has been discussed in the earlier part of this judgment, I allow the
present bail application.
70. Therefore, the accused/petitioners, namely Sk. Ali Imam & Md. Sahid
Imam, [CRM (DB) No. 248 of 2024 (arising out of RC Case No. 03A of
2022)], be released on bail (unless he is under arrest in some other case) upon
furnishing a bond of Rs.50,000/- (Rupees Fifty thousand only), with two
sureties of Rs.25,000/- each, one of whom must be local, to the satisfaction of
the learned Chief Judicial Magistrate, Alipore, South 24-Parganas subject to
condition that the said petitioners shall appear before the trial court on every
date of hearing until further orders and shall not intimidate witnesses or
tamper with evidence in any manner whatsoever or commit similar offences in
future and on further condition that the petitioners, while on bail, shall not
leave the territory of the State of West Bengal without prior permission of this
court and shall report to the Superintendent of Police, CBI, ACB, Kolkata, once
in a week until further orders. Prior to his release on bail, he shall deposit his
passport, if any, to the trial court.
38
71. In the event they fail to appear before the trial court without justifiable
cause, the trial court shall be at liberty to cancel their bail automatically
without reference to this court.
72. The application for bail, thus, stands allowed.
In Re: Santi Prasad Sinha., CRM (DB) No. 823 of 2024 (arising out of RC
case no. 03A of 2022)
And
In Re: Santi Prasad Sinha., CRM (DB) No. 818 of 2024 (arising out of RC
case no. 04A of 2022)
And
In Re: Santi Prasad Sinha., CRM (DB) No. 822 of 2024 (arising out of RC
case no. 05A of 2022)
73. In CRM (DB) No. 823 of 2024, the petitioner seeks bail in connection with
RC No. 3 of 2022. In CRM (DB) 818 of 2024, the petitioner seeks bail in
connection with RC No. 4 of 2022. In CRM (DB) 822 of 2024, the petitioner
seeks bail in connection with RC No. 5 of 2022.
74. The investigating agency filed charge sheet dated September 30, 2022, in
connection with RC 5 of 2022, under Sections 120B/201/420/467/468/471 of
IPC read with Section 7 of Prevention of Corruption Act against the petitioner
and 15 other persons. Final charge sheet has been filed against the accused
persons including this petitioner under Sections
120B/109/201/420/467/468/471 of IPC read with Sections 7/7A/8 of the
Prevention of Corruption Act, 1988.
39
75. RC No. 3 of 2022 was registered by CBI for investigation on the basis of an
order dated April 7, 2022, passed by a learned Judge of this Court in WPA no.
55538 of 2022. In the FIR dated April 7, 2022, filed by the CBI, it was alleged
that the petitioner, in conspiracy with other unknown public servants,
dishonestly extended undue advantage to some candidates in the matter of
appointment of Assistant Teachers in Class IX and X (First State Level
Selection Test), without maintaining fairness and offered appointment to
undeserving, non-listed and below ranked candidates, thereby flouting the
WBCSSC Rules, 2016.
76. The petitioner was arrested on August 10, 2022, in connection with RC No.
5 of 2022. Since then the petitioner is in judicial custody. Since he was not
shown arrested in connection with RC No. 3 of 2022, he surrendered before the
learned Trial Court on September 9, 2022. In connection with RC No. 4 of
2022, the petitioner was shown arrested on March 24, 2023.
77. The petitioner submitted that he joined the West Bengal Board of
Secondary Education as Secretary in 2011. He retired from that service in
2012. On August 1, 2018, the petitioner joined WBCSSC as Advisor for a
period of 6 months. Such appointment was extended from time to time.
78. It was submitted that although charge sheet against the petitioner was
submitted on September 30, 2022, till date the learned Trial Court has not
been able to take cognizance of the offences alleged for want of sanction to
prosecute from the end of the State Government. Without taking cognizance,
further remand of the petitioner beyond the statutory period is illegal. In this
40
connection learned Counsel for the petitioner relied on Section 309(2) of the
Code of Criminal Procedure, the material portion of which reads thus:-
"If the Court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to postpone
the commencement of, or adjourn, any inquiry or trial, it may,
from time to time, for reasons to be recorded, postpone or adjourn
the same on such terms as it thinks fit, for such time as it
considers reasonable, and may by a warrant remand the accused if
in custody"
79. Learned Counsel further submitted that the petitioner is in judicial custody
for over 2 years without there being any progress in the trial. On the
touchstone of Article 21 of the Constitution of India, the petitioner should be
released on bail. Co-accused persons standing on the same footing as the
petitioner have been enlarged on bail by the Hon'ble Supreme Court as also by
this Court. In particular, learned Advocate referred to co-accused persons
Prasanna Kumar Roy, Dr. Kalyanmoy Ganguly and Abdul Khalek and drew to
our attention the orders granting bail to those accused persons.
80. Opposing the petitioner's bail prayer, learned Advocate for CBI submitted
that the petitioner is the prime accused. He engineered the entire scam, in
conspiracy with the other accused persons.There is clinching incriminating
evidence against the petitioner. It is not for any laches on the part of CBI that
the trial has not proceeded.The State Government is sitting tight over the issue
41
of grant / refusal of sanction to prosecute. Given the seriousness of the alleged
crime, the petitioner's prayer should not be allowed.
81. I have given my anxious consideration to the rival contentions of the
parties. The petitioner may be the prime accused. The prosecution may have a
very strong case to secure his conviction. Nobody stands in the way of the
prosecution doing so. However, one cannot be oblivious of an under trial's
fundamental right to personal liberty and speedy trial. In fact, the graver the
offence, the sooner the trial should be concluded so that if the accused person
is found guilty following due process of law,he can be punished. No accused
person can be indefinitely detained in judicial custody without there being any
progress in the trial at all. That would amount to complete abrogation of the
dual fundamental rights to personal liberty and speedy trial which every
accused person has. These rights are paramount and must prevail over all
other considerations.
82. Further, given the offences alleged, i.e., cheating members of the public by
issuing forged appointment letters in the post of teachers against payment of
money, the prosecution evidence would be largely documentary in nature.
Investigation is complete. By now, the prosecution must be having all relevant
evidence in its possession. In view of the aforesaid and in the light of the
discussion on the principles governing grant/rejection of bail, as recorded in
the earlier part of this judgment, taking note of the long incarceration of the
petitioner for more than 2 years and 2 months coupled with zero progress in
the trial, I am inclined to allow the petitioner's prayer for bail.
42
83. Therefore, the accused/petitioner, namely Santi Prasad Sinha,[CRM (DB)
No. 823 of 2024 (arising out of RC case no. 03A of 2022)], [CRM (DB) No.
818 of 2024 (arising out of RC case no. 04A of 2022)], [CRM (DB) No. 822
of 2024 (arising out of RC case no. 05A of 2022)], be released on bail (unless
he is under arrest in some other case) upon furnishing a bond of Rs.50,000/-
(Rupees Fifty thousand only), with two sureties of Rs.25,000/- each, one of
whom must be local, to the satisfaction of the learned Chief Judicial
Magistrate, Alipore, South 24-Parganas subject to condition that the said
petitioner shall appear before the trial court on every date of hearing until
further orders and shall not intimidate witnesses or tamper with evidence in
any manner whatsoever or commit similar offences in future and on further
condition that the petitioner, while on bail, shall not leave the territory of the
State of West Bengal without prior permission of this court and shall report to
the Superintendent of Police, CBI, ACB, Kolkata, once in a week until further
orders. Prior to his release on bail, he shall deposit his passport, if any, to the
trial court.
84. In the event he fails to appear before the trial court without justifiable
cause, the trial court shall be at liberty to cancel his bail automatically without
reference to this court.
85. The application for bail, thus, stands allowed.
In Re: Subrata Samanta Roy @ Babu., CRM (DB) No. 2562 of 2024 (arising
out of RC case no. 02A of 2022)
and
43
In Re: Subrata Samanta Roy @ Babu., CRM (DB) No. 2564 of 2024 (arising
out of RC case no. 03A of 2022)
86. In CRM (DB) 2562 of 2024, the petitioner seeks bail in connection with RC
No. 02 of 2022. In CRM (DB) 2564 of 2024, the petitioner seeks bail in
connection with RC No. 03 of 2022.
87. The petitioner submitted that he was arrested on February 17, 2023, in
connection with RC No. 02 of 2023. Since then he is languishing in judicial
custody. He was subsequently shown arrested on November 29, 2023 in
connection with RC No. 03 of 2023.
88. It was submitted that the petitioner's name did not transpire when the
proceedings were initiated and the investigation culminated in the first charge
sheet dated December 30, 2022, under Sections 120B/420/468/471 of IPC
read with Section 7 of the Prevention of Corruption Act, 1988. After further
investigation, a supplementary charge sheet dated May 17, 2023, was filed by
CBI under Sections 120B/420/467//468/471 of IPC read with Sections
7/7A/8 of Prevention of Corruption Act, 1988 as against the petitioner and
another accused person namely Prasanna Kumar Roy. It was submitted that
Prasanna Kumar Roy has been granted bail by the Hon'ble Supreme Court.
Learned Counsel submitted that the petitioner stands on better footing that
Prasanna Kumar Roy. Therefore, the petitioner should be granted bail.
89. Learned Advocate for CBI opposed the bail prayer on the same grounds as
he opposed the bail applications of the other petitioners. Learned Advocate
basically submitted that there is sufficient incriminating material against the
44
petitioner. He played an active role in the alleged offence. He is likely to
influence prosecution witnesses if enlarged on bail and also there is a
possibility of the petitioner tampering with evidence.
90. I need not deal with the merits of the case. Supplementary charge sheet
dated May 17, 2023 was filed against this petitioner and Prasanna Kumar Roy.
Prasanna Kumar Roy was granted bail by the Hon'ble Supreme Court on the
ground that he was in custody for more than one year and cognizance of the
offence alleged is yet to be taken. This petitioner is in judicial custody since
February 17, 2023. i.e., for almost 1 year and 9 months in connection with RC
No. 2 of 2022 and for almost one year in connection with RC No. 3 of 2022.
Learned Trial Court has not yet taken cognizance of the offence.
91. There appears to be very little possibility of the trial beginning on an early
date, let alone early conclusion of the trial.
92. Accordingly, on the ground of prolonged incarceration of the petitioner
without there being any progress in the trial and also considering that the
petitioner is similarly circumstanced as Prasanna Kumar Roy who has been
enlarged on bail by the Hon'ble Supreme Court, I am inclined to allow the
present bail applications of the petitioner.
93. Therefore, the accused/petitioner, namely, Subrata Samanta Roy @
Babu., [CRM (DB) No. 2562 of 2024 (arising out of RC case no. 02A of
2022) and CRM (DB) No. 2564 of 2024 (arising out of RC case no. 03A of
2022)], be released on bail (unless he is under arrest in some other case) upon
furnishing a bond of Rs.50,000/- (Rupees Fifty thousand only), with two
45
sureties of Rs.25,000/- each, one of whom must be local, to the satisfaction of
the learned Chief Judicial Magistrate, Alipore, South 24-Parganas subject to
condition that the said petitioner shall appear before the trial court on every
date of hearing until further orders and shall not intimidate witnesses or
tamper with evidence in any manner whatsoever or commit similar offences in
future and on further condition that the petitioner, while on bail, shall not
leave the territory of the State of West Bengal without prior permission of this
court and shall report to the Superintendent of Police, CBI, ACB, Kolkata, once
in a week until further orders. Prior to his release on bail, he shall deposit his
passport, if any, to the trial court.
94. In the event he fails to appear before the trial court without justifiable
cause, the trial court shall be at liberty to cancel his bail automatically without
reference to this court.
95. The applications for bail, thus, stands allowed.
In Re: Partha Chatterjee, CRM (DB) No. 583 of 2024 (arising out of RC
Case No. 05A of 2022)
96. The petitioner seeks bail in connection with RC No. 5 of 2022 dated May
20, 2022, registered by the CBI under Sections 120B/201/420/467/468/471
of IPC read with Section 7 of the Prevention of Corruption Act, 1988.
97. Learned Advocate for the petitioner submitted that the petitioner was
appointed as the Minister-in-charge of Higher Education and School Education
Department, West Bengal Government, after the Assembly Election of 2016. He
is a septuagenarian and suffers from various old age related ailments. Learned
46
Advocate relied on reports issued by the Medical Officer of the concerned
correctional home.
98. It was further submitted that the prime accused is Santi Prasad Sinha, who
was the convener of the Supervisory Committee constituted for supervising,
monitoring and guiding the WBCSSC in connection with the pending
recruitment process. The allegation against this petitioner is that he approved
the constitution of such Committee in violation of the provisions of the School
Service Commission Act, 1997.
99. The petitioner was not named in the First Information Report. During the
investigation of RC No. 05 of 2022, an Enforcement Case Information Report
dated June 24, 2022, was registered by the Enforcement Directorate and the
petitioner was arrested on July 23, 2022, by the officials of Enforcement
Directorate from his residence for his alleged involvement in the offence of
money laundering.After completion of enquiry, a petition of complaint was filed
by the Enforcement Directorate before the jurisdictional Court and was
registered as ML Case No.13 of 2022, arraigning the petitioner as an accused.
100. It was submitted that when the petitioner was in the custody of
Enforcement Directorate, he participated in and cooperated with RC No. 5 of
2022.
101. However, while he was in custodial detention in connection with ML Case
No. 13 of 2022, on September 16, 2022, the petitioner was produced before the
learned Trial Court in connection with RC No. 05 of 2022. On a petition moved
by CBI, the learned Trial Court allowed CBI's prayer to show the petitioner as
47
arrested and also allowed the prayer for remanding the petitioner to CBI's
custody. The petitioner was in CBI's custody from September 16, 2022 till
September 21, 2022. On September 22, 2022, the petitioner was remanded to
judicial custody. Since then he is in jail custody.
102. Learned Counsel submitted that investigation is complete. Several charge
sheets have been filed. No incriminating material has been found against the
petitioner. He is in custody for more than 2 years. Trial has not begun. The
prosecution intends to examine 137 witnesses and exhibit more than 200
documents. There is no possibility of an early conclusion of the trial. On the
ground of breach of the petitioner's fundamental right to personal liberty and
speedy trial, he should be granted bail on such conditions as this Court may
decide.
103. Learned Advocate for CBI vehemently opposed the petitioner's prayer for
bail. He submitted that the petitioner is the master mind behind the SSC scam.
He illegally removed Dr. Sharmila Mitra from the post of Chairperson of
WBCSSC violating the provisions of Section 5 of the WBCSSC Act, 1997. He
appointed Prof. Saumitra Sarkar as the new Chairman of WBCSSC on the
basis of hand written bio-data of Prof. Sarkar. He appointed Dr. Santi Prasad
Sinha as the Advisor to WBCSSC. He forcedProf.Sarkar to resign from
Chairmanship of WBCSSC on finding him to be an unwilling party to the
fraudulent activities in connection with the recruitment scam.
104. Professor Sarkar had issued a show cause letter to the co-accused person,
Dr. Santi Prasad Sinha, in connection with issuance of forged recommendation
48
letters after expiry of the concerned panel. Professor Sarkar was replaced by
co-accused Ashok Kumar Saha in violation of the provisions of Section 4 of
WBCSSC Act, 1997. The petitioner used to send various lists of ineligible
candidates through one Prabir Kumar Bandopadhyay, who had worked as OSD
to the petitioner from 2014 to 2021. Prabir used to forward such lists to the
concerned officials of the WBCSSC so that the process for appointment of such
candidates could be taken up by the Commission and the Board.
105. It was further submitted that the co-accused Dr. Subiresh Bhattacharya
received various lists of candidates from the Naktala residence of the petitioner.
At the said residence, there was an office on the ground floor where lists of
candidates were updated. Both Prasanna Kumar Roy and Pradip Singh, two of
the accused persons, were frequent visitors to the petitioner's Naktala
residence. Dr. Santi Prasad Sinha and Dr. Subires Bhattarcharya also used to
frequently visit the petitioner at his Naktala residence. The lists of candidates
were handed over to the said officials of WBCSSC for due processing in order to
extend undue benefits to the concerned candidates by issuing recommendation
and appointment letters. The list of candidates along with the money (excluding
the commission of Prasanna Kumar Roy) were handed over to the petitioner at
his Naktala residence. The lists of candidates were then handed over to Subires
Bhattachrya by the petitioner for placing such candidates on the panel and
issuing recommendation letter so that appointment letters could be generated
for such candidates.
49
106. It was further submitted that the petitioner was instrumental in
introducing the West Bengal Board of Secondary Education (Appointment,
Confirmation, Conduct and Discipline of Teachers and Non-teaching Staff)
Rules, 2018 which made West Bengal Board of Secondary Education (in short
"WBBSC") the central authority for issuing appointment letters for both
teaching and non-teaching posts in Government aided/sponsored schools in
West Bengal. Due to criminal conspiracy involving the accused persons namely
Dr. Subires Bhattacharya , Dr. Kalanmoy Ganguly and the petitioner, the 2018
Rules were illegally given retrospective effect by making the same applicable for
a process of recruitment which started in 2016.
107. It was then submitted that all crucial decisions like appointments to the
statutory posts of Secretary, President, Chairman etc. at WBBSE and WBCSSC
were finally approved by the petitioner. He was the kingpin so to say.
108. Learned Advocate for the CBI submitted that due to the heinous nature of
the alleged offence and the availability of enough incriminating material against
the petitioner, his prayer for bail should be rejected.
109. Although I have noted the points urged on behalf of CBI in opposing the
petitioners bail prayer, the same pertain to the merits of the case. I am not
inclinedto express any opinion on the strength or otherwise of the prosecution
case. I find that the petitioner is in judicial custody from September 22, 2022,
i.e., for more than 2 years and1 month. Learned Trial Court has not yet taken
cognizance of the alleged offences for want of sanction to prosecute from the
end of the State Government in respect of some of the accused persons who are
50
retired public servants. However, I understand that sanction to prosecute has
been granted by the competent authority as far as the petitioner is concerned.
110. In any view of the matter, it is highly improbable that the trial will begin
on an early date. Even assuming that the trial was to begin in the near future,
an early conclusion of the trial is clearly not possible given the number of
witnessesthat the prosecution proposes to examine and the number of
documents that the prosecution intends to exhibit. The prosecution may have
an iron-cast case against the petitioner for securing his conviction. Nobody
stands in the way of the prosecution to do so. However, one cannot be oblivious
of the fundamental right to personal liberty and speedy trial which every under
trial has. Such right is paramount and must prevail over all other
considerations.
111. It was also urged on behalf of CBI that the petitioner being an influential
person, he is likely to tamper with the evidence or influence witnesses if
released on bail. I do not find much merit in such contention. The petitioner is
no more in a position of power. Given the nature of the charges, the
prosecution evidence would substantially be documentary in nature. Upon
completion of investigation, the prosecution would be having in its
possessionall relevant evidence. I also do not find any real possibility of the
petitioner fleeing from the course of justice. He has deep roots in the society.
112. Without making any comment on the merits of the case and solely on the
ground of prolonged incarceration of the petitioner without there being any
progress in the trial which has infringed the petitioner'sfundamental right
51
under Article 21 of the Constitution, I am inclined to allow the petitioner's
application for bail. I may note that there is considerable similarity between the
allegations made against this petitioner and the allegations that were made
against the appellant in the case of V. Senthil Balaji (supra), wherein the
Hon'ble Supreme Court granted bail to the appellant.
113. Therefore, the accused/petitioner, namely, Partha Chatterjee, [CRM (DB)
No. 583 of 2024 (arising out of RC Case No. 05A of 2022)], be released on
bail (unless under arrest in any other case) upon furnishing a bond of
Rs.50,000/- (Rupees Fifty thousand only), with two sureties of Rs.25,000/-
each, one of whom must be local, to the satisfaction of the learned Chief
Judicial Magistrate, Alipore, South 24-Parganas subject to condition that the
said petitioner shall appear before the trial court on every date of hearing until
further orders and shall not intimidate witnesses or tamper with evidence in
any manner whatsoever or commit similar offences in future and on further
condition that the petitioner, while on bail, shall not leave the territory of the
State of West Bengal without prior permission of this court and shall report to
the Superintendent of Police, CBI, ACB, Kolkata, once in a week until further
orders. Prior to his release on bail, he shall deposit his passport, if any, to the
trial court.
114. In the event he fails to appear before the trial court without justifiable
cause, the trial court shall be at liberty to cancel his bail automatically without
reference to this court.
115. The application for bail, thus, stands allowed.
52
In Re: Chandan Mondal @ Ranjan, CRM (DB) No. 2543 of 2024 (arising out
of RC No. 05A of 2022)
116. The petitioner seeks bail in connection with RC 5 dated May 20, 2022,
registered by the CBI for alleged commission of offence under Sections
120B/201/420/467/468/471 of IPC read with Sections 7/8 of the Prevention
of Corruption Act, 1988, against 9 accused persons including the petitioner. It
was submitted that the petitioner was arrested in connection with RC 05 of
2022 on February 17, 2023. Initially he was remanded to police custody for 4
days till February 21, 2023. Thereafter he was remanded to judicial custody
and he is in such custody since then.
117. Learned Counsel for the petitioner submitted that the petitioner's name
was not there in the First Information Report nor in the charge sheet which
was submitted by the investigating agency on September 30, 2022. His name
transpired when the first supplementary chargesheet was submitted on March
15, 2023. On January 6, 2024, the investigating agency submitted the second
supplementary charge-sheet wherein the petitioner's name did not appear. The
allegation is that the petitioner worked as an agent of co-accused Prasanna
Kumar Roy. He collected money from candidates who were given appointment
illegally as teachers. He handed over such money to Prasanna Kumar Roy. It is
also alleged that huge sums of money were transferred from the petitioner's
account to the bank accounts of Prasanna Kumar Roy, and his wife and bank
accounts in the names of various companies controlled by Prasanna Kumar
Roy and his wife.
53
118. Learned Counsel submitted that the first supplementary charge sheet
which concerns the petitioner has still not been taken cognizance of by learned
Trial Court. Hence, the process of supplying copy under Section 207 Cr.P.C. is
still pending. This is creating a hurdle for the petitioner in exercising his right
of defence.
119. It was submitted that another co-accused, namely Pradip Singh has been
granted bail by this Court in CRM (DB) 4647 of 2023, in view of the period of
detention suffered by that accused person.
120. Learned Counsel submitted that the petitioner has been in judicial
custody for more than one year and eight months. Investigation is complete.
One of the prime accused persons, namely Prasanna Kumar Roy, has been
granted bail by the Hon'ble Supreme Court on November 10, 2023, taking note
of the offences alleged against him and the fact that he had already undergone
imprisonment of more than 1 year and also taking into account that
cognizance is yet to be taken on the charge sheets filed. The petitioner stands
at least on the same footing if not on a better footing than Prasanna Kumar
Roy and hence should be enlarged on bail.
121. Learned Advocate for CBI while opposing the prayer for bail, submitted
that the petitioner was an integral part of the criminal conspiracy to defraud
unsuspecting members of the public by offering jobs as teachers against
payment of money. It is not the fault of the prosecution that the trial has not
progressed. If enlarged on bail, the petitioner is likely to tamper with evidence
54
and may also flee from the course of justice. Considering the gravity of the
alleged crime, the petitioner's bail prayer should be rejected.
122. I have considered the rival contentions of the parties. The prosecution
may have in its possession more than adequate incriminating material against
the petitioner. However, that is a matter of merits of the case. I see that the
petitioner is in judicial custody now for about 1 year and 9 months. Learned
Trial Court has not yet taken cognizance of the offence alleged for want of
sanction to prosecute co-accused persons from the end of the State
Government. One of the principal accused persons for whom the petitioner
allegedly worked, has been extended the privilege of bail by the Hon'ble
Supreme Court. There is no possibility of an early conclusion of the trial which
has not even begun.
123. In view of the aforesaid, taking note of the long incarceration of the
petitioner and keeping in mind the utmost importance of an under-trial's
fundamental right to personal liberty and speedy trial, solely on the ground of
delay in progress of trial, I am inclined to allow this bail application.
124. Therefore, the accused/petitioner, namely, Chandan Mondal @ Ranjan,
[CRM (DB) No. 2543 of 2024 (arising out of RC No. 05A of 2022)], be
released on bail (unless under arrest in any other case).Upon furnishing a bond
of Rs.50,000/- (Rupees Fifty thousand only), with two sureties of Rs.25,000/-
each, one of whom must be local, to the satisfaction of the learned Chief
Judicial Magistrate, Alipore, South 24-Parganas subject to condition that the
said petitioner shall appear before the trial court on every date of hearing until
55
further orders and shall not intimidate witnesses or tamper with evidence in
any manner whatsoever or commit similar offences in future and on further
condition that the petitioner, while on bail, shall not leave the territory of the
State of West Bengal without prior permission of this court and shall report to
the Superintendent of Police, CBI, ACB, Kolkata, once in a week until further
orders. Prior to his release on bail, he shall deposit his passport, if any, to the
trial court.
125. In the event he fails to appear before the trial court without justifiable
cause, the trial court shall be at liberty to cancel his bail automatically without
reference to this court.
126. The application for bail, thus, stands allowed.
Concluding remarks
127. Before parting, I would like to add a few concluding words whichwould be
relevant to all the bail applications which I have considered above and allowed.
128. The crux of the allegations against the petitioners before us is that they
hatched a criminal conspiracy to defraud members of the public and in
particular, those persons who aspired to be teachers in Government
educational institutions. They offered jobs to undeserving/ineligible candidates
against payment of money. They forged appointment letters. They collected
huge sums of money from the concerned candidates. Indeed, if such allegations
are ultimately proved to be true at the trial, the same would establish that the
petitioners have committed a grave and heinous criminal offence. They should
then be appropriately punished.
56
129. However, the law of our country says that a person accused with
commission of a criminal offence will be presumed to be innocent till he is
found to be guilty and convicted by a competent court of law. An accused
person may be detained in judicial custody if in a particular circumstance the
same is necessary for proper conduct of investigation. However, once
investigation is complete and charge sheet has been submitted by the
investigating authority, only in very few exceptional circumstances, continued
incarceration of the accused person would be justified. One such circumstance
may be the criminal history of the accused person, i.e., he has criminal
antecedents. If it is found that such a person is a habitual offender, e.g., a
serial killer, it may not be prudent to set him at large even after completion of
investigation. Societal interest would warrant that he be detained in
prison.Again, if there is a real flight risk, i.e., the accused person is likely to
abscond if released, bail may be justifiably refused to him. Similarly, if the
accused person, if set free is likely to tamper with evidence or intimidate
prosecution witnesses, his bail prayer may be refused. However, none of these
exceptional circumstances, in my considered opinion, apply to any of the
petitioners before us. It is highly unlikely that the petitioners will be in a
position to commit similar offences if enlarged on bail.As regards tampering
with evidence,in the present case, the evidence relates to documents like fake
appointment/recommendation letters which have already been seized by the
investigating authority and/or statements of public servants.It is
57
highlyimprobable that the release of the petitioners from judicial custody will in
any way hamper the trial.
130. I have also gone through the order dated November 29, 2023, passed by a
coordinate bench in CRM (DB) 4100 of 2023 whereby bail was granted to one of
the above petitioners in RC No. 5 of 2022, namely, Dr. Kalyanmoy Ganguly.
The Coordinate Bench applied the Tripod test of likelihood of the petitioner
absconding, possibility of the petitioner committing similar offences and
probability of the petitioner interfering with the progress of investigation or
trial. The Bench also observed that "to continue under-trial detention of the
petitioner merely on the gravity of the offence when the other requirements of
absconding, tampering etc. i.e, the tripod test does not justify such end would,
in our estimation, amount to punishing the accused under the garb of under-
trial detention. It must also be borne in mind that the offences, even if proved,
would notattract mandatory life imprisonment".
131. Keeping an under-trial in incarceration for an indefinite period of time
would tantamount to pre-trial conviction. That is unknown to our criminal
jurisprudence. The allegations against an accused person may be extremely
grave. Still, the same have to be proved in a duly held trial before a competent
Court. An accused person cannot be detained in judicial custody for a long
period of time merely on the basis of allegations which are yet to be proved. The
fundamental right of a person including an under-trial, as enshrined in Article
21 of the Constitution of India, includes his right to personal liberty and
speedy conclusion of a trial. Such fundamental right is paramount and
58
overridesall other considerations in a criminal trial, irrespective of the nature
and gravity of the charge. If the State or the legal systemdoes not have the
means to conclude a criminal trial within a reasonable period of time, the
prosecution should not oppose the accused person's prayer for bail,other
thanin exceptional circumstances some of which I have discussed above. Right
to personal liberty is precious and perhaps the second most important
fundamental right after right to life.
131A. Noting CBI's submission that further investigation is in progress as
directed by this Court, I make it clear that nothing in this judgment and order
shall prevent CBI from carrying on with such investigation. If fresh material
against any or all of the petitioners in these bail petitions, is unearthed in the
process of such further investigation, CBI will be at liberty to further
interrogate all such petitioners, if it deems it necessary to do so. The concerned
petitioners are directed to fully co-operate with the investigating officer in that
regard. However, further custodial interrogation is not necessary, in my
considered opinion.
132. In fine, all the 14 bail applications stands allowed.
133. All parties shall act on the server copies of this order duly downloaded
from the official website of this Court.
134. Criminal Section is directed to supply certified copies of this order to the
parties, if applied for, upon compliance of all necessary formalities.
(Arijit Banerjee, J.)
59
Apurba Sinha Ray, J.
PART – A
In Re: Dr. Subires Bhattacharya @ Subiresh Bhattacharjee, CRM (DB) No. 173
of 2024 (arising out of RC no. 03A of 2022)
And
In Re: Dr. Subires Bhattacharya @ Subiresh Bhattacharjee, CRM (DB) No. 172
of 2024 (arising out of RC no. 05A of 2022)
In Re: Sri. Ashok Kumar Saha CRM (DB) No. 418 of 2024 (arising out of RC No.
05A of 2022)
And
In Re: Sri. Ashok Kumar Saha CRM (DB) No. 427 of 2024 (arising out of RC No.
03A of 2022)
In Re: Dr. Kalyanmoy Ganguly, CRM (DB) No. 467 of 2024 (arising out of RC
No.03A of 2022)
In Re: Santi Prasad Sinha., CRM (DB) No. 823 of 2024 (arising out of RC case
no. 03A of 2022)
And
In Re: Santi Prasad Sinha., CRM (DB) No. 818 of 2024 (arising out of RC case
no. 04A of 2022)
And
In Re: Santi Prasad Sinha., CRM (DB) No. 822 of 2024 (arising out of RC case
no. 05A of 2022)
In Re: Dr. Partha Chatterjee, CRM (DB) No. 583 of 2024 (arising out of RC Case
No. 05A of 2022)
60
The crux of the issue–
1. In a nutshell, the petitioners Dr. Subires Bhattacharya @ Subiresh
Bhattacharjee (aged about 65 years), Sri. Ashok Kumar Saha (aged about 70
years),Dr. Kalyanmoy Ganguly (aged about 73 years), Sri Santi Prasad Sinha
(aged about 72 years), Dr. Partha Chatterjee (aged about 72 years) claim that
they are in the custody for a considerable period ranging from one year eight
months to two years six months. They have also claimed that some other
accused persons similarly situated were granted bail by the Hon’ble Supreme
Court though they were in custody less than the period incarcerated by the
present petitioners. As the investigation is complete and evidences are in
respect of the documents only, the petitioners may be granted bail on any
condition. There is no chance of an early conclusion of the trial. The
investigating agency was unable to obtain sanction in respect of the offences
alleged to have been committed by the petitioners, excepting Dr. Chatterjee. It
is further contended that the petitioners are not influential persons since, most
of them have retired from their respective services long ago and Dr. Chatterjee
has been relieved from his political power and post, and, therefore, they may be
granted bail on any condition that the court may decide. The learned Counsels
of the petitioners have also pointed out that the Court should not keep the
accused in custody for an indefinite period during pendency of the criminal
case since that would tantamount to say that the bail Court is authorizing
61
punishment of the accused even before they are proven guilty in accordance
with law.
2. The learned counsel appearing for the Central Bureau of Investigation has
categorically stated that in the year 2016 the accused persons had pre-planned
the commission of the crime by which they had intended, literally, to sell the
public employment in lieu of huge sum of money and for that they had even
changed the relevant rules to withdraw the power of recommending and
appointing authority from erstwhile units and to transfer the said powers to
their selected caucus. The agency could not take forward the case as the State
Government didn’t grant sanction to most of the accused inspite of issuing
repeated letters to the authority concerned. The accused are influential persons
with political connections having deep roots with the authority which
is reluctant to grant sanction to prosecute them. Lives of a huge number of
young educated people have been destroyed due to sheer greed of the highly
placed State Government functionaries including the erstwhile State Education
Minister. If the accused persons are released on bail they will not only
influence and intimidate the witnesses but even terminate their services, since
most of them are temporary and contractual service holders. The instant case
is not an ordinary case, since the investigation agency faced steep resistance
from some quarters of the State Government who didn’t provide minimum co-
operation to the agency. Even the issue of sanction has been kept pending for
an indefinite period by the competent authority enabling the petitioners to take
the plea of delay in progress of trial and helping them to obtain bail on the
62
basis of recent decisions of the Hon’ble Apex court favouring bail order in
respect of the accused who are incarcerated in the custody for a long time. In
fact, the competent authority of the State Government is doing indirectly which
they cannot do directly. The Hon’ble Governor of the State of West Bengal had
granted sanction to prosecute Dr. Chatterjee since he was a minister at the
relevant point of time. If the petitioners are enlarged on bail, it would be
difficult to bring home charges and, further, in view of the complications and
intricacies involved in the offences, the investigation is still going on to unearth
other relevant aspects of the matter and there is always a scope for the agency
to file supplementary Charge sheet in future.
Consideration–
The basis:
3. I have considered the rival contentions of the parties. I have also taken into
consideration the observation of my learned senior Brother.
4. Undoubtedly and undeniably, each case has to be judged by its own merits
and further, even a small difference in the factual matrix of the case is
sufficient to seek exemption from the applicability of the reported judicial
decisions claiming parity. Another solemn principle espoused in our revered
justice delivery system is ‘bail is the rule, jail is the exception ‘. Recently in the
decision of “Afjal Ali Sha @ Abjal Shaukat Sha Vs The State Of West Bengal”
[Transfer Petition (Criminal) No. 409 of 2021] reported in 2023 SCC
63OnLine SC 282 Hon’ble Apex Court has candidly held that bail should not be
granted to the concerned accused till conclusion of trial even he has been
languishing in the judicial custody for more than five years except by the High
Court, in view of his antecedent. What I want to mean is that the delay in
progress of trial may not be the sole criteria for enlarging the accused persons
on bail, if there are sufficient materials showing that there are exceptional
circumstances / situations which justify further detention of the accused
persons. In other words, it may be put in simple words, that this case, like Afjal
Ali Sha @ Abjal Shaukat Sha’s case,(supra), is an exception to the generally
accepted rule that ‘bail is the rule, jail is the exception ‘. Now, why is this case
an exception?
Exception: why?
5. Before I delve into the matter, I would like to mention a brief particulars of
the above applicants who were highly placed state functionaries:
A. Dr. Partha Chatterjee (the then Minister in charge, Department of
Education, Government of West Bengal)
B. Dr. Kalyanmoy Ganguly (the then President of West Bengal Board of
Secondary Education)
C. Dr. Santi Prasad Sinha (the then Advisor of West Bengal Central School
Service Commission)
64D. Dr. Subiresh Bhattacharya (The then Chairman of West Bengal Central
School Service Commission)
E. Mr. Ashok Kumar Saha (the then Secretary of West Bengal Central School
Service Commission)
6. The chargesheet was filed on 30.09.2022 by the CBI, and though the Hon’ble
Governor had given sanction for prosecution of Dr. Partha Chatterjee, the
process of sanction in respect of other four accused persons mentioned above,
is still pending for more than two years. The CBI time and again approached
the State Government for sanction but in vain. This Hon’ble Court also asked
the Chief Secretary to the Government of West Bengal through the Learned
Advocate General to look into the matter but ultimately it is found that the
process of sanction is still incomplete.
7. In this regard, orders passed by the Hon’ble Coordinate Bench presided over
by Hon’ble Justice Bagchi may be referred to.
The Order dated 22.03.2024 is quoted herein below:-
“………..4.We have perused the averments in
the affidavit and its enclosures. From the enclosures it
appears repeated correspondences have been made to
the Chief Secretary to consider the issue of grant of
sanction on and from December, 2022 but to no avail.
65
5. It is pertinent to record that the prosecutions
are a culmination of Court monitored investigation into a
deep rooted scam with regard to illegal appointments to
various posts in Government and Government aided
schools in the State of West Bengal.
6. Conspiracy was hatched between the
Minister-in-Charge and the head of the School Service
Commission and others to derail the selection process
by tampering with results and thereby appointing
undeserving candidates to public posts. Allegation of
corruption and that too at high places is a serious threat
to rule of law and confidence in public administration.
Offences involving economic crime and corruption fall in
a different category. Their gravity cannot be measured
only from the perspective of quantum of sentence
prescribed in law but the far reaching impact of these
crimes on public administration and confidence of the
people in the affairs of the State. While these factors
aggravate the gravity of the alleged offences against the
petitioner it is also important for this Court to ensure
that they are not subjected to undue under-trial
detention as the sanctioning authority is dragging its
feet over the issue of grant of sanction. Under these
66circumstances, for proper adjudication of cases it is
necessary for this Court to obtain the view of the
sanctioning authority with regard to the time frame
within which it shall take a decision in the matter.
7. Law enjoins the embargo of sanction to
protect honest and intrepid public servants from
vexatious prosecutions. A prosecution which is a
product of Court monitored investigation is said to be
clothed with judicial imprimatur and cannot ordinarily
be conceived as a vexatious one. It is also important to
note that the grant of sanction under Section 19 of the
Prevention of Corruption Act (unlike Section 197 of
Cr.P.C.) is an automatic process. Delay in taking a
decision thereon is a matter of serious regret.
8. Under such circumstances, we are
constrained to adjourn the hearing of the bail
applications to get a comprehensive understanding with
regard to the time frame within which the sanctioning
authority shall take a decision in the matter.
Accordingly, sanctioning authority i.e. the Chief
Secretary, Government of West Bengal is directed to
submit report with regard to the time frame within
67which he proposes to take a decision with regard to the
grant of sanction.
9. Report be filed by the adjourned date”
The Order dated 03.04.2024 is quoted herein below:-
“………3. Chief Secretary, Government of West
Bengal is directed to file report with regard to issue of
grant of sanction positively by Tuesday failing which
this court shall be constrained to direct him to appear in
person and explain his conduct.
4. Copy of the order be communicated to the Chief
Secretary, Government of West Bengal for due
compliance.
5. Let the matter appear for hearing on Tuesday
(9.4.2024). ”
The Order dated 09.04.2024 is quoted herein below:-
“…….4. Strangely, the report of the Chief
Secretary is silent with regard to grant of sanction in
RC0102022A0005 for which request was made on
30.09.2022.
68
5. Report further notes documents in part have
been submitted with regard to RC 0102022A0002 and
RC 0102022A004 and no documents have been
received in respect of RC012022A003-Kolkata.
6. Learned Government Pleader is also unable to
enlighten us why the report of the Chief Secretary is
silent with regard to the prayer for grant of sanction in
respect of RC0102022A0005.
7. We are constrained to observe the Chief
Secretary has failed to apply his mind to the matter and
has submitted a laconic and incomplete report. He has
failed to consider the magnitude of his responsibility in
the matter of grant of sanction which as per law
requires to be done in a time bound manner.
8. We are left to wonder why a responsible civil
servant holding the highest office in the State has not
discharged his statutory duties in a prompt manner
resulting in an undesirable hiatus to the progress of the
prosecution in cases involving deep rooted corruption in
appointments to government/aided schools.
9. We hope malefic influence of accused persons
who held prominent posts in public administration
69
including one who was a former minister does not have
anything to do with the recalcitrant attitude of the Chief
Secretary.
10. To insulate the Chief Secretary of
undesirable influence, if any, we direct him to act
independently and take an objective decision in the
matter positively by 23rd April, 2024.
11. CBI strongly contends all documents with regard to
the RC cases have been handed over to the sanctioning
authority.
12. Be that as it may, the sanctioning authority is
at liberty to approach the Officer of CBI viz., Ashwin
Shenvi, Superintendent of Police, CBI, ACB, Kolkata for
obtaining further documents and/or information relating
to the crimes to enable him to take a decision thereon.
CBI authorities shall assist the sanctioning authority in
this regard.
13. Copy of this order be sent to the Chief
Secretary, Government of West Bengal for due
compliance.
14. Let the matters appear on 23.04.2024.”
70
The Order dated 23.04.2024 is quoted herein below:-
“………5. On earlier occasion, Chief
Secretary submitted an evasive report which did
not find favour with the State. Accordingly, by
order dated 09.04.2024 we directed the Chief
Secretary to take a decision in the matter positively
by today. Presently, an affidavit is filed by the
Chief Secretary wherein he has stated voluminous
documents are to be considered including the
judgment delivered by a co-ordinate Bench of this
Court in WPA 30649 of 2016.
6. We are not impressed by the affidavit
submitted by the Chief Secretary. The Chief
Secretary had been approached by the
investigating agency in 2022, that is, two years
ago. Although the prosecution case discloses a
large scale corruption in the matter of public
employment in government and government aided
schools in the State of West Bengal, the Chief
Secretary failed to consider the gravity and
seriousness of the crime and did not take any
71
prompt decision in the matter. It must be borne in
mind requirement of sanction is to weed out
frivolous prosecution against honest and upright
public servants. Public servants who are tainted
with allegation of corruption cannot take the
refuge under the umbrella of sanction and resist
prosecution. Fair and effective administration of
criminal justice requires speedy completion of
trial. Sanctioning Authority ought to have borne in
mind this fact and taken a prompt decision. He
has singularly failed to exercise his statutory
duty.
7. Advocate General fervently pleads a last
opportunity may be given to the Chief Secretary to
take a decision in the matter. Acceding to his
plea, we direct the Chief Secretary to positively
take a decision in the matter of granting sanction
by 1st May, 2024, failing which this Court shall
be constrained to initiate appropriate proceedings
against him. While considering the prayer for
sanction, the Chief Secretary must bear in mind
the following principles:-
72
a) Allegations in the instant case relate to deep
rooted corruption in high public offices. Acts of
corruption by no stretch of imagination fall within
the ambit of discharge of public duty;
b) Unlike section 197 Cr.P.C., grant of sanction
under section 19 of the Prevention of Corruption
Act is an automatic exercise. [See Lalu Prasad @
Lalu Prasad Yadav vs. State of Bihar through CBI
(AHD) Patna];
c) To instill confidence in the criminal justice
system, prosecution of corruption cases need to be
fast tracked. Grant of sanction is the stepping
stone to commencement of trial. Hence, it is the
imperative duty of the sanctioning authority to
take a prompt decision in the matter lest his
indolent conduct smack of collusion and/or
screening the accused from lawful prosecution;
d) We are conscious the accused have held high
positions in State administration. While taking a
decision in the matter of sanction against such
persons, the Chief Secretary may be well advised
to bear in mind the age old adage ‘Be you ever so
73high, the law is above you’. He should not be
overawed or influenced by the position, authority
or power and shall take an independent decision
within the stipulated time;
e) Chief Secretary shall be at liberty to consult
and take assistance from CBI authorities as and
when required.
8. Matter is adjourned till 2nd May, 2024.”
The Order dated 03.05.2024 is quoted herein below:-
“1. At the outset Mr. Ganguly, learned
senior Counsel, contends two of the petitioners
viz. Dr. Subires Bhattacharyya and Dr.
Kalyanmoy Ganguly were appointed by the
Hon’ble Governor. As per law sanction is to be
obtained from the Hon’ble Governor and not from
the Chief Secretary.
2. In view of this submission we direct the
prosecuting agency i.e. CBI to submit report with
regard to appropriate sanctioning authority with
regard to the petitioners and other accused.
74
3. Report shall also indicate whether the
appropriate authorities had been approached by
the CBI for grant of sanction or not.”
The Order dated 07.05.2024 is quoted herein below:-
“1. CBI submits report stating the
circumstances in which proposal for sanction was
made before the Chief Secretary for prosecution of
the petitioners apart from the former Minister of
the State. It is contended as per Rule 26 of the
Rules of Business the proposal for appointment of
Chairman, Members and Secretary of all
statutory Commissions constituted by the State
Government (except the State Public Commission)
are submitted before the Chief Minister and not
the Governor. Accordingly, the proposal was
placed before the Chief Secretary for grant of
sanction by the competent authority.
2. As the issue relates to grant of sanction
to prosecute public servants appointed in
connection with the affairs of the State, copy of
the report be handed over to the Advocate
General to make submission with regard to the
75authority competent to grant sanction. Copy of the
report be also served upon the petitioners.
3. Chief Secretary shall submit response to
the report as well as the proposal for sanction by
the adjourned date.”
The Order dated 3.07.2024 of this Bench is quoted herein below: ”
“Read order dated May 7, 2024.
A Coordinate Bench had directed the Chief
Secretary to submit his response to the report filed
by CBI as well as the proposal for sanction, by the
adjourned date. The matter was adjourned till June
11, 2024.
Thereafter, the matter was not taken up for
hearing till today.
Today, the State says that there may have
been some communication gap. The Chief
Secretary’s response is not ready. We grant three
weeks’ time peremptorily to the Chief Secretary to
submit his response to CBI’s report as well as the
proposal for sanction to prosecute. Insofar as this
76aspect of the matter is concerned, the matters will
be listed three weeks hence.
However, we are of the view, prima facie,
that the issue of sanction to prosecute may not
have any bearing on the bail applications that are
pending before us. We do not wish to delay or
hold up hearing of the bail applications till the
Chief Secretary files his response to CBI’s report.
The bail applications will again be listed on
July 12, 2024, marked 12 p.m. On that day, if
Mr. Trivedi, learned Deputy Solicitor General
representing the CBI, wishes to argue as a
preliminary issue that prior to taking up the bail
petitions for hearing, the issue regarding sanction
to prosecute should be sortedout, he will be at
liberty to do so.”
8. The above orders clearly show that inspite of direction from this Court and
further, inspite of undertaking given by the Chief Secretary to the Government
of West Bengal, the State didn’t decide on the issue of sanction till date. This
gives credence to the claim of the CBI that the State is trying to protect the
interest of the above accused persons, and had the issue of sanction been done
in right time, the alleged delay would not have happened. Further the dragging
77
of feet on behalf of the State over the matter would clearly show that the
applicants are still influential and their influence is so much so that the State
is not willing to take any decision against them. The FIR was registered at the
instance of this Court for investigation of serious allegation regarding
appointment of school teachers and Group C staff in lieu of huge sum of
money, and not any State authority but CBI was asked to investigate
the allegations. Manipulation of marks of competent and successful
candidates, destruction of OMR Sheets, appointment of undeserving
candidates, appointment of persons who didn’t even appear in the
examination etc were done allegedly at the instance and with active connivance
of the applicants. The then State Education Minister and some of the highest
authorities in School education system were allegedly directly involved in the
serious scam causing irreparable damage to the career of a huge number of
young educated people. Inspite of such serious allegation against the
applicants, the State Government does not find it appropriate to decide the
issue of sanction at the right earnest. Pertinently, the sanction to prosecute Dr.
Chatterjee was issued by the Hon’ble Governor as per requirement of law.
Therefore, the apprehension that if the applicants are enlarged on bail, the
manipulation and influencing evidence/witnesses are only matters of time,
cannot be said to be misplaced in view of the totality of the circumstances
revealed in this case.
9. Another important aspect which should not be lost sight of us is that can we
allow the State Government to interfere with the judicial proceedings indirectly
78
by not taking any decision on the issue of sanction and thereby stalling the
entire judicial proceedings and enabling its confidantes to obtain bail on the
plea of delay in proceedings? When the office of the Hon’ble Governor or
Speaker can apply their mind to take decision on issue of sanction in respect of
other accused, what prevented the State authority to take a reasoned decision
on the matter? The allegation of nexus, as made out by the CBI, between the
present applicants and certain sections of the State cannot be thrown out.
Even the orders of the Hon’ble Co-ordinate Bench mentioned above clearly
indicate such nexus between the above applicants and State Machinery. It is
revealed from those orders that the Chief Secretary has been directed to remain
uninfluenced from any external factors. The Hon’ble Co-ordinate Bench also
apprehends, inter alia, that ‘malefic influence’ of the accused persons who held
prominent posts in public administration including one who was a former
minister may be the underlying reason for such ‘recalcitrant attitude’ of the
Chief Secretary. No appeal or revision is taken out from the side of the
applicants to challenge such observations of the Hon’ble Court. Therefore, such
observation against the State Authority and the applicants above by the
Hon’ble Coordinate Bench makes the present case different from the judgment
dated 09.08.2024 in Criminal Appeal No. 003295 of 2024 arising out of
SLP (Criminal) No. 8781 of 2024 (Manish Sisodia Vs. Directorate of
Enforcement),(2020) 13 SCC 791 (P. Chidambaram Vs. Directorate of
Enforcement), 2024 SCC OnLine SC 2550 (Arvind Kejriwal Vs. Central
Bureau of Investigation) and Criminal Appeal No. 4011 of 2024 arising out
79
of SLP (Crl). No. 3986 of 2024 (V. Senthil Balaji Vs. The Deputy Director,
Directorate of Enforcement). There is no indication in those cases from the
Hon’ble Court that the State authority is protracting the trial of the relevant
proceeding at the behest of the accused persons. The instant case is, therefore,
an exception to the general rule. The audacious attitude of the State not only
interferes with smooth functioning of judicial proceedings but also abuses the
process of the Court.
Relevancy: Sections 167(2) & 309(2) Cr.P.C.
10. The learned Senior Counsels opined that in that event the CBI could have
moved the writ jurisdiction of the Court, and a court having jurisdiction to deal
with applications under section 439 Cr.P.C. cannot direct the State to grant
sanction for prosecution. Further, when investigation is complete and
chagesheet submitted, remanding the accused to judicial custody without
taking cognizance, is completely illegal in view of section 309(2) of Cr. P. C.
11. Be it mentioned, the Hon’ble Coordinate Bench never directed the State to
grant sanction, rather it asked the state to decide the issue of sanction
expeditiously. It is true that remand of the accused can be done either under
section 167(2) or 309(2) of Cr. P. C. When a chargesheet is filed, the court can
remand the accused under section 309(2) of the Code only after taking
cognizance. But in this case, a peculiar circumstance arises. Charge sheet has
been filled but sanction from the state is awaiting for more than two years and
thereby the trial court has been put in an awkward position. The Code doesn’t
80
specifically prescribe the duty of the trial court in such circumstances.
However, I am unable to accept the learned Senior Counsels’ contention that
the Hon’ble Coordinate Bench did not have the authority to issue direction over
the matter.
Section 482 Cr.P.C. : the Panacea
12. Section 482 of Cr.P.C. is the repository of inherent powers of the High
Court. It has empowered only the High Court to pass appropriate orders to
prevent the abuse of process of any Court or otherwise to secure ends of
justice. This is not an ordinary power. By such provision of law, the legislature
in its wisdom has harnessed the High Court with unlimited powers to issue
appropriate orders to prevent abuse of process of any Court or otherwise to
secure the ends of justice.
13. For convenience, the provision of Section 482 of Cr.P.C. may be
recapitulated.
“Section 482: Saving of inherent powers of
High Court — Nothing in this Code shall be
deemed to limit or affect the inherent powers of the
High Court to make such orders as may be
necessary to give effect to any order under this
Code or to prevent abuse of process of any Court or
otherwise to secure the ends of justice.”
81
14. It is settled principle that application of Section 482 Cr.P.C is to be done
when there is no specific provision in the Code to deal with a particular
situation, and further, such power can be exercised sparingly, and only in the
‘rarest of the rare case’. The High Court can exercise such power only to secure
ends of justice or to prevent abuse of process of any Court under its
superintendence.
15. In our case, the chargesheet has been filled but it is anybody’s guess when
the State would decide the issue of sanction. The Code doesn’t specify the duty
of the trial court in such an event. The investigation discloses that the offences
have been committed in an organized and pre-planned manner from some
higher echelons of the State authority by changing relevant rules etc. and lives
of a large member of innocent young educated people were sacrificed at the
instance of the applicants upon whom the Society at large reposed great trust
and faith. The applicants are still influential since the State is indirectly
refusing to decide on the issue of sanction, inspite of being directed by the
Hon’ble Court on several occasions, and if such audacious attitude of the State
is not appropriately taken care of, the majesty of the Court may suffer. Further,
it would give a wrong signal, and create a bad precedent too. If such an
audacity occurs in High Court, I am afraid, what would, then, happen in
District Courts!! This is certainly a case of exceptional nature. Even at the cost
of repetition, I must say that when the Hon’ble Governor or Hon’ble Speaker
can decide the issue of sanction, there is no justifiable ground for the State
Authority to sit tight over the matter.
82
15.1. The Petitioner Dr. Chatterjee claims that the relevant rule i.e. West
Bengal Board of Secondary Education (Appointment, Confirmation, Conduct
and Discipline of Teachers and Non-Teaching Staff) Rules 2018 is still a good
law since the same has not been declared invalid by any court of law nor any
challenge has been made against such rule. If action is taken under such valid
statute or statutory rules, how can the same be termed as illegal. Needless to
mention, organized crimes are committed in a pre-planned and premeditated
manner. The provisions of law do not suggest, inter alia, that OMR Sheets are
to be manipulated or destroyed, or the marks of undeserving candidates are to
be enhanced/manipulated over the marks of deserving candidates. Moreover,
the provisions of law do not indicate that the persons who did not even appear
in the examination shall be shown as successful candidates. The point is that
to misuse the provisions of law, and statutory rules, Dr. Chatterjee and his
aides allegedly worked in an organized, premeditated manner. Dr. Chatterjee
occupied such a high position in the Education department at the relevant time
that the same had been used to change the relevant rules in 2018 to suit their
alleged purpose. Therefore, it is not acceptable at this stage that even though
he was the Minister-in-Charge, Education Department, he was unaware of the
workings of WBCSSC or WBBSE regarding appointment of Teachers and Staff,
and hence, he cannot be fastened with criminal liability. There are sufficient
prima facie materials showing that those who were trying to raise their voices
regarding alleged illegalities/irregularities, were coerced by removing them from
their posts or by serving show-cause notices upon them.
83
15.2. Dr. Chatterjee had also claimed that the prosecution did not proceed with
his case though sanction to prosecute him was granted by the competent
Authority.
15.3. It has already been discussed that inability to proceed with the trial of
Dr. Chatterjee cannot be attributed to the CBI since the State Government is
dragging its feet over the issue of sanction in respect of other accused for years
together. The nature of the case is such that joint trial of all the accused is
absolutely necessary. Therefore, due to laches of the State Government, his
trial cannot be commenced until the cases are ready for joint trial of all the
offenders.
15.4. However, all the above applicants claim that no money trail has been
found in respect of each of them. But if one’s act allows others to amass
wealth, money etc., such action on the part of the former is also penal and
punishable. There are sufficient prima facie materials to show that the public
employment has been distributed to undeserving and unsuccessful candidates
at a price.
15.5. The petitioner Dr. Kalyanmoy Ganguly claimed that the Hon’ble
Coordinate Bench granted him bail on 29/11/2023 by a detailed reasoned
order in RC no 05/2022 and, therefore, there is no reason for this Bench to
take a different stance.
15.6. Admittedly, the Hon’ble Coordinate Bench enlarged Dr. Ganguly on bail
on 29/11/2023 in connection with RC no. 05/2022 on the grounds, inter alia,
84
that there is no chance of an early conclusion of trial since the State is
dragging its feet over the issue of sanction. But after a few months when the
State was found still maintaining a stoic silence over the relevant issue, the
same Coordinate Bench dealing with bail applications of other accused persons
in the self-same cases or connected cases came down heavily on the State and
it’s Chief Secretary indicating malefic influence of the accused, which obviously
includes Dr. Ganguly, may be the underlying reason for recalcitrant attitude of
the State Chief Secretary for not deciding on the point of sanction, and the
orders passed by the coordinate bench on 22/03/2024, 03/04/2024,
09/04/2024, 23/04/2024, 03/05/2024, 07/05/2024 show that the
Coordinate bench has changed its stance from earlier one after it passed the
bail order dated 29/11/2023. The tenors of the orders dated 22/03/2024,
03/04/2024, 09/04/2024, 23/04/2024, 03/05/2024, 07/05/2024 are totally
different from the order dated 29/11/2023. The said Bench didn’t pass any
order on the bail applications filed by the other accused in the self-same cases
mentioned in the cause title of the instant matters and even by Dr. Ganguly in
RC 03A/2022, and the Coordinate Bench concentrated only to deal with the
issue of sanction. Therefore, it appears that the Hon’ble Coordinate Bench
changed its stance from earlier one and did not take up the bail prayers of the
allegedly similarly situated accused persons including Dr. Ganguly in RC
03A/2022, readily or soon after passing of the order dated 29/11/2023, and
the Bench, on the contrary, started questioning the authority of the Chief
Secretary for deferring the decision on sanction. In view of such a shift in
85
stances of the Hon’ble Coordinate Bench, the liberty to claim parity on behalf of
the accused including Dr. Ganguly (in connected case i.e. RC 03A/2022), on
the basis of order dated 29/11/2023 has been diluted by the order dated
22/03/2024 and subsequent orders.
15.7. All the petitioners claim that they are aged and ailing persons and as
such their applications for bail should be considered sympathetically.
Unfortunately, the allegations against the petitioners are that inspite of being
the senior citizens and father figure of the state education system they didn’t
consider at the relevant time the future and career of hundreds of young people
who were like their sons and daughters.
‘Reasonableness’- a basic constitutional theme
16. One of the precious themes of our constitutional scheme is the concept of
‘reasonableness’. Every state action must be guided by the principle of
‘reasonableness’. When there is no such reasonableness in any State action,
the same is violative of constitutional scheme. Needless to mention, the
Constitution is the mother of all Statutes and Acts in India. Therefore, even if a
statute doesn’t not specify a time limit for any proposed state action, such
action must be done within a reasonable time and cannot be deferred for an
indefinite period taking advantage of absence of time period in the statute. The
principle of ‘reasonableness’ is so much embedded in our Constitution that
such a principle can be read into the provisions of the Statute which does not
have any specific provision relating to time period for any state action.
86
Therefore, though there is no specific provision either in the Cr.P.C or in the
Prevention of Corruption Act within which the authority concerned is to decide
on the issue of sanction, the principle of ‘reasonableness’ embedded in our
mother law dictates that such action is to be completed within a reasonable
time period. In our case, it is anybody’s guess when the state would complete
the process, and such non-action, therefore, on the part of the State clearly
militates against the constitutional theme of reasonableness. The apathy of the
State has, undoubtedly, created a serious legal crisis in the judicial
proceedings under reference.
Conclusions: Remedy lies in Section 482 Cr.P.C.
17. However, as the provision of section 482 Cr.P.C. has empowered the
Concerned High Court to make appropriate orders to prevent the abuse of
process of any Court and otherwise to secure ends of justice, I direct the State
to decide the issue of sanction within fortnight from date and in default, the
State shall be deemed to have sanctioned the prosecution in respect of the
applicants as prayed for by the CBI, and the trial court shall proceed with the
case in accordance with law, and further neither the State nor the applicants at
any stage of the subsequent proceedings can take the plea of deficiency in
process of sanction.
18. The judicial decision reported in (2023) 1 Supreme Court Cases 329
[Vijay Rajmohan Vs. Central Bureau of Investigation] did not consider the
provision of section 482 of Cr. P.C nor the same was placed before the Hon’ble
87
Supreme Court for consideration whether, in the peculiarity of facts and
circumstances of a case, the provision in the above section can be used to
expedite the process of obtaining sanction from the competent authority ,
particularly when lack of sanction makes the judicial proceedings inept.
19. However, as the record reveals that the interests of the applicants are being
indirectly protected from some sections of the State authority, the
apprehension that if they are enlarged on bail, there would be serious
predicament in bringing home the charges against the applicants , can be said
to have been well founded. Moreover, I do not find any material to show that
the delay caused can be attributed to the CBI or the Prosecution in this case.
Further, the record reveals that the present applicants were the mastermind
and they orchestrated the entire scam. They cannot be equated with the
accused like Prasanna Kumar Roy, Jiban Krishna Saha who actually acted as
touts or collecting agents. The five applicants namely Dr. Subires Bhattacharya
@ Subiresh Bhattacharjee, Sri. Ashok Kumar Saha, Dr. Kalyanmoy Ganguly,
Sri. Santi Prasad Sinha, Dr. Partha Chatterjee as stated above are still
influential, and there are chances of manipulating, influencing, intimidating
witnesses, if they are enlarged on bail. In view of the above, I am not inclined to
allow the prayers for bail of the said applicants at this stage. Accordingly, the
relevant bail applications are rejected.
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20. The learned Registrar General is requested to communicate this order
to the Chief Secretary, Government of West Bengal and also to the learned
Trial Court immediately.
PART – B
In Re: Koushik Ghosh, CRM (DB) No. 481 of 2024 (arising out of RC No. 03A of
2022)
In Re: Sk. Ali Imam & Md. Sahid Imam CRM (DB) No. 248 of 2024 (arising out
of RC Case No.03A of 2022)
In Re: Subrata Samanta Roy @ Babu., CRM (DB) No. 2562 of 2024 (arising out
of RC case no. 02A of 2022)
and
In Re: Subrata Samanta Roy @ Babu., CRM (DB) No. 2564 of 2024 (arising out
of RC case no. 03A of 2022)
In Re: Chandan Mondal @ Ranjan, CRM (DB) No. 2543 of 2024 (arising out of
RC No. 05A of 2022)
1. After considering the bail applications of Koushik Ghosh, Sk. Ali Imam,
Md. Sahid Imam, Subrata Samanta Roy @ Babu and Chandan Mondal @
Ranjan, I find that they cannot be said to be the mastermind of the scam as
referred to above. Their status and role prima facie show that they acted as
touts or agents for fetching illegal money from the undeserving candidates.
They may be granted bail. Accordingly, the relevant bail petitions filed by the
above applicants are allowed on the conditions as stipulated by my learned
Senior Brother in the respective bail orders passed by His Lordship.
(Apurba Sinha Ray, J.)
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Later:-
In view of the difference of opinion between the two of us as regards
CRM (DB) 173 of 2024, CRM (DB) 172 of 2024, CRM (DB) 418 of 2024, CRM
(DB) 427 of 2024, CRM (DB) 467 of 2024, CRM (DB) 823 of 2024, CRB (DB)
818 of 2024, CRM (DB) 822 of 2024 and CRM (DB) 583 of 2024, let those bail
applications be placed before the Hon’ble The Chief Justice for appropriate
direction.
( Arijit Banerjee, J. )
( Apurba Sinha Ray, J. )