Allowed

Gumin Darung v. the State of Ap

Gauhati HC4 Nov 2022AB/118/2022

Case brief

AI extract

What is this about?

This judgment deals with an application for confirming interim anticipatory bail as absolute bail for the petitioner. The court balanced the petitioner's father's critical need for a kidney transplant against the gravity of the alleged exam paper leak prosecution.

What did the court decide?

The order of interim bail dated 07.10.2022 was made absolute, requiring adherence to previously imposed conditions, and the Case Diary was sent back.

Gumin Darung Vs the State of Ap — Anticipatory Bail | Gauhati HC (2022)

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GAHC040012502022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : AB 118/2022

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1:Gumin Darung Son of Dr. Takar Darung, Resident of Jomlo Mongku Village, Police Station Rumgong, District Siang, Arunachal Pradesh.

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VERSUS

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1:THE STATE OF AP Represented by Public Prosecutor (AP)

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Advocate for the Petitioner : A M Bora

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Advocate for the Respondent : P P of AP

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BEFORE

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HONBLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

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JUDGMENT

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Date : 04-11-2022

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1. This is an application u/s 438 of the Code of Criminal Procedure (Cr.P.C. for short) praying for pre-arrest bail for the petitioner, namely, Gumin Darung, who is apprehending arrest in connection with SIC Vigilance Police Station Case No.11/2022 registered under Sections 120(B)/420/406/407/409 of Indian Penal Code (IPC for short).

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2. Heard Mr. P.D. Nayar, learned counsel for the petitioner. Also heard Mr. O. Pada, learned Special P.P., SIC.

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3. A brief resume of the facts of this case is that APPSC (Arunachal Pradesh Public Service Commission) conducted an exam dated 26.08.2022 and 27.08.2022 for the post of Assistant

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Page No.# 2/5 Engineer (Civil). The informant Gyamar Padang, who was also a candidate of the aforementioned examination has alleged that the exam papers have been leaked in advance by the Commission in collusion with coaching institutes and some other acquaintances. The informant has alleged that he has been receiving calls from a coaching institute, namely, Jeju Institute since 20.08.2022, through a teacher of the institute, namely, Akhilesh Yadav. Again on 23.08.2022 he received a call from Akhilesh Yadav’s number. He again called back through the number and enquired about the reason why Akhilesh Yadav was desirous to contact him. Akhilesh Yadav answered that he had attained some questions which would definitely be included in the APPSC paper. Suspecting foul play, the informant recorded the conversation.

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4. It is further stated that on 24.08.2022, the informant met Akhilesh Yadav and he was given a set of five handwritten questions. As a precautionary measure, he clicked photographs of the questions in advance on his mobile handset on the same day. Finally on 27.08.2022, the informant was surprised to learn that all the five questions, handed down to him were included in the APPSC exam paper. The numbers, decimals and diagrams were exactly the same. This confirmed the informant’s suspicion that paper had been leaked well in advance, before the exam. The informant lodged an FIR with the police at Itanagar police station which was registered as ITA P.S. Case No. 229/2022 under Sections 120B/420/406/407/409 of IPC.

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5. The learned counsel for the petitioner has prayed for anticipatory bail on the grounds that his father is to undergo kidney transplant at NEIGRIHMS Hospital, Shillong. The status report of the case reflects that the Secretary of the APPSC and one broker has revealed during their custodial interrogation that the present petitioner was one of the candidates from whom cash was received by the broker and the same was handed over to the Secretary of the APPSC.

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6. The Spl. P.P. has raised serious objection stating that this is an economic offence which has a cascading effect on the society. The undeserving candidates have usurped into the post of the deserving candidates.

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7. Learned counsel for the petitioner has submitted that the petitioner has not been implicated in the FIR, but his name had come up on the basis of statement made by one of the arrested accused-person, viz Shri Tama Saroh, who is also related to the petitioner. The present petitioner has been receiving calls from the Investigating Agency and he is

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Page No.# 3/5 apprehending arrest in connection with this case. He had to sell 1500 sq. meters of land at Gumin Nagar, Alo, West Siang district of Arunachal Pradesh with a sale proceed of Rs. 70 lacs, solely for the purpose of treatment of his ailing father. It is further submitted that the informant himself is a part and parcel of this alleged scam and he is not a person to be trusted. It is submitted that the petitioner cannot be held liable under Sections 120B/420/406/407/409 of the IPC or under Section 13(2) of the Prevention of Corruption Act, 1988 (the P.C. Act for short).

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8. It is submitted that the petitioner has co-operated with the investigation and his old and ailing father will suffer immensely because kidney transplant requires confinement of the patient in a sanitized and isolated place for several months with proper care and nursing. Without the petitioner’s help his father’s life may be in danger.

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9. On the contrary the learned P.P. has submitted that the bank transactions of the petitioner highlights the money trail which connects the petitioner with the alleged offence. The transactions were made only for the purpose of purchasing questions that were prepared by the APPSC for the exams. The petitioner has now taken advantage of his father’s ailment as a shield. Bank transactions were proximate to the APPSC exam.

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10. I have perused the medical documents submitted by the petitioner annexed with this petition as Annexure-4. It is apparent from the documents that the petitioner’s father Dr. Takar Darung is suffering from serious kidney problems. The case summary depicts that the patient was not getting adequate dialysis in the last session in view of Catheter flow issue. A certificate has been submitted which is certificate by doctor Karan Sharaf, a Senior Consultant and H.O.D of Nephrology and Kidney Transplant Apollo Excel Care Hospital, Guwahati which reveals that the patient is recommended to undergo kidney transplant at the earliest.

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11. The learned counsel for the petitioner has relied on the decision of the Delhi High Court in State Government of NCT of Delhi v. Pawan Kumar decided in connection with Criminal Crl. M.C. No. 4023/2013, 4032/2013 and 4033/2013 and 5252/2013 decided on 22.02.2016. The para 15 of the judgment is reproduced herein below:

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“15. It has been argued by the learned counsel for the respondent that the disclosure statement of an accused during his custody is not admissible in law and cannot be read at all against the other accused-persons. The Investigating Agency is solely relying upon the alleged mobile phone call detail record and in the chargesheet the Investigating Officer has

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Page No.# 4/5 alleged that some alleged phone call was sent by the accused Bijender Chhikara to the Respondent on 22.04.2013 and further one SMS was sent by the accused Bijender Chhikara to the respondent on 22.04.2013. It is contended that it is the prosecution case that the alleged occurrence took place on 21.04.2013, while the alleged phone call details pertain to 23.04.2013. It is further contended by counsel for the respondent that as per the chargesheet, it is the case of the prosecution that one Ashu Sharma is the kingpin and was already arrested and the alleged offences were mainly committed between Ashu Sharma and Bijender Chhikara.”

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12. Learned Spl. P.P. has relied on the decision of the Hon’ble Supreme Court in the case of P. Chidambaram v. Directorate of Enforcement , reported in (2019) 9 SCC 24 , wherein it has been observed that :–

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“83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.”

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13. On the contrary the learned counsel for the petitioner has vigorously submitted that this case is not a case of economic offence. The petitioner cannot be roped in on the basis of the statement of the co-accused. It is to be noted that the para-15 of the decision of Delhi High Court in Pawan Kumar’s Case (supra) relied upon by the learned counsel for the petitioner is not an observation of the Hon’ble High Court, but submissions of the learned counsel for the party, but nonetheless, it is no more res integra that co-accused person’s statement cannot be pinned on to another accused, to hold him liable. At this stage, the rival contentions that if the alleged offence is an economic offence, is not taken into consideration.

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14. I have given my anxious consideration to the submissions at the Bar. The accused is already on interim bail. The Spl. P.P. has raised serious objection on the ground that investigation will suffer if the petitioner is enlarged on bail. However, the Spl. P.P. has not submitted that the accused has violated any condition of bail imposed upon him. There is no

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instance that the petitioner has not been co-operating with the investigation. The petitioner’s father has to undergo kidney transplant urgently. At this juncture, the points to be pondered upon are that:

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If the petitioner is a flight risk;

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If he has earlier antecedents or such criminal records;

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The gravity of the offence;

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Impact of grant of anticipatory bail, as this case is of large magnitude, affecting a very large number of people.

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15. It has also to be borne in mind that the petitioner is in a predicament. His father is in a precarious condition. I believe, that a balance has to be struck while considering if the petitioner has a fit case to be admitted to bail or if the offence is of such a grave nature that a bail order will hamper effective investigation. I would like to reiterate that the prosecution has not brought on record if the petitioner has violated any bail conditions imposed upon him vide order dated 07.10.2022, where he was granted interim bail. I have also considered the fact that the petitioner’s father requires immediate kidney transplant. I deem it proper to make the anticipatory bail absolute. The order of interim bail dated 07.10.2022 is hereby made absolute. The petitioner will hereby abide to the conditions imposed on him vide order dated 07.10.2022.

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16. Send back the Case Diary.

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JUDGE

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Gumin Darung v. the State of Ap

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Gumin Darung v. the State of Ap

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