B.A.No.5591/2021 (Venugopal V. et al. v. State of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943 BAIL APPL. NO. 5591 OF 2021** **CRIME NO.4/2021 OF VACB, THRISSUR** ## **APPLICANTS/ACCUSED:** 1 VENUGOPAL V. AGED 65 YEARS S/O.DEVAKI AMMA, VELANGOTTU HOUSE, KANDANNASHERRY, THRISSUR DISTRICT, PIN - 680 102. 2 ANTO THOMAS AGED 45 YEARS S/O.THOMAS, CHEERAN (H), PERAKAM, CHAVAKKADU, THRISSUR DISTRICT, PIN - 680 506. 3 SATHAR P. AGED 61 YEARS S/O.KUNJAVAROSUKUTTY, PUTHUVEETTIL, VAZHAPPULLI P.O., PERAKAM, THRISSUR DISTRICT, PIN - 680 506. 4 K.P.UDAYAN AGED 47 YEARS S/O.SARASWATHIAMMA, KURUVANGATTU PUTHENVEETTIL, AANJAM NAGAR, EAST NADA, GURUVAYUR, THRISSUR DISTRICT, PIN - 680 101. 5 VASU K.I. AGED 57 YEARS S/O.ITTIKORAN, KUNDU (H), ORAMANAYUR P.O., THRISSUR DISTRICT, PIN- 680 512. 6 ABOOBACKER AGED 54 YEARS S/O.AHAMMED, THAMMANATHU (H), THAIKKADU P.O., THRISSUR DISTRICT, PIN - 680 512. 7 P.YATHINDRADAS AGED 60 YEARS S/O.P.R.VELAYUDHAN, PONATHASHERI (H), PUNNA, CHAVAKKADU P.O., THRISSUR DISTRICT, PIN - 680 506. 8 VEERAMANI K.D. AGED 56 YEARS S/O.DASAN, KIZHAKKAKATHU (H), BLANGADU, KADAPPURAM, THRISSUR DISTRICT, PIN - 680 506. B.A.No.5591/2021 2 9 SHIJITHA C.R. AGED 36 YEARS D/O.RAJAN, CHOZHIRAKATHU (H), THIRUVATHRA P.O., THRISSUR DISTRICT, PIN - 680 516. 10 ARAVINDAN PALLATH AGED 61 YEARS S/O.KRISHNAN NAIR, PALLATHU (H), MAMMIYUR, GURUVAYUR, THRISSUR DISTRICT, PIN - 680 506. 11 M.S.SIVADAS AGED 48 YEARS S/O.SUBRAHMANIAN, MATHRAMKOTTU(H), THIRUVATHRA P.O., THRISSUR DISTRICT, PIN - 680 516. 12 SUBAIDA K. AGED 60 YEARS W/O.ABDUL GAFOOR, KANAMBULLY (H), MANATHALA, CHAVAKKADU, THRISSUR DISTRICT, PIN - 680 506. 13 LAILA MAJEED AGED 58 YEARS D/O.KUNJIMUHAMMED, KANNATT (H), NR.GOVT HOSPITAL, CHAVAKKADU, THRISSUR DISTRICT, PIN - 680 506. BY ADVS. P.M.RAFIQ P.VIJAYA BHANU (SR.) VIPIN NARAYAN AJEESH K.SASI POOJA PANKAJ SRUTHY N. BHAT M.REVIKRISHNAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. BY SRI.A.RAJESH, SPL.PUBLIC PROSECUTOR, VACB THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON 06.08.2021 DELIVERED THE FOLLOWING: B.A.No.5591/2021 3 ## **R.NARAYANA PISHARADI, J ************************ B.A.No.5591 of 2021 ------------------------------------Dated this the 6[th] day of August, 2021 ------------------------------------------- ## **O R D E R** This is an application for anticipatory bail filed under Section 438 of the Code of Criminal Procedure, 1973 (for short 'the Code'). 2. The petitioners 1 to 4 are accused 1 to 4 in the case registered as V.C.No.04/2021/TSR by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB), Thrissur for the offences punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short 'the Act') and under Sections 465 and 471 and 120B of the Indian Penal Code. 3. The first accused was the Chairman and the second accused was the Vice Chairman of the Guruvayoor Co-operative Urban Bank Limited (hereinafter referred to as 'the Bank') during B.A.No.5591/2021 4 the year 2017. Accused 3 and 4 were members of the Director Board of the Bank during that period. The other petitioners were also the office-bearers of the Bank. 4. The prosecution case, as per the F.I.R, is that accused 1 to 4 hatched a conspiracy and pursuant to such conspiracy, they demanded bribe from the relatives of some of the candidates who had appeared in the written examination conducted for appointment to the posts of Peon and Appraiser in the Bank and that the accused committed forgery and manipulation of the answer papers of the candidates to give them high marks in the written examination and that they appointed the candidates who fulfilled their demand for bribe. 5. The Bank had invited applications from eligible candidates to fill up six posts of appraisers and five posts of peons. The conducting of the written examination was entrusted to an outside agency "Global Trust, Kottayam" and the examination was conducted on 12.11.2017. The short listed candidates were called for an interview by the Bank. It is alleged that the answer papers in the written examination, of those who B.A.No.5591/2021 5 had given bribe and from whom bribe was demanded, were manipulated to ensure that such candidates would secure high marks in the written examination. It is alleged that specific instructions were given to such candidates to write only the answers fully known to them and the answers to the questions left out by them were later filled up with the help of the accused to ensure that they would get high marks. It is alleged that the final list of selected candidates was published on the same day of the interview and appointment orders were given to them on the same day itself. 6. One Rajeev, who was a candidate and who did not get selection, filed a complaint in the matter in the Court of the Enquiry Commissioner and Special Judge, Thrissur. The Court directed the Dy.S.P concerned to conduct a quick verification and to submit a report. The Dy.S.P, after conducting the preliminary enquiry, submitted a report before the Court, stating that the enquiry did not reveal any irregularity or malpractices which would attract an offence under the Act. B.A.No.5591/2021 6 7. The de facto complainant filed W.P.(C) No.27091/2019 before this Court challenging the findings in the preliminary enquiry report of the VACB. As per the judgment dated 15.03.2021 in the above writ petition, this Court rejected the preliminary enquiry report filed by the VACB and directed a fresh preliminary enquiry to be conducted by another Dy.S.P. 8. In compliance with the judgment of this Court in the above writ petition, a fresh preliminary enquiry was conducted by the VACB. On the basis of the findings made in the second preliminary enquiry report, the FIR in the case was registered against petitioners 1 to 4. 9. Heard learned counsel for the petitioners and also the learned Public Prosecutor. Perused the case diary and the second preliminary enquiry report. 10. Learned counsel for the petitioners submitted that, the offences punishable under Sections 465 and 471 of the I.P.C alleged against the petitioners are bailable and the only remaining offence, which is non-bailable, is the offence punishable under Section 7 of the Act. Learned counsel for the B.A.No.5591/2021 7 petitioners contended that, there is absolutely no material to find that the petitioners had demanded bribe from any of the candidates and therefore, _prima facie_ , the offence under Section 7 of the Act is not attracted against the petitioners. 11. Learned Public Prosecutor has submitted that the investigation of the case is at the initial stage and that granting of pre-arrest bail to the accused would hamper the investigation. 12. The report based on the first preliminary enquiry conducted by the VACB stands rejected by this Court as per the judgment in the writ petition filed by the de facto complainant Rajeev. Therefore, the contentions raised by the learned counsel for the petitioners on the basis of that report do not merit consideration. 13. In the statement filed by the investigating officer, it is mentioned as follows: _“It is submitted that the case is only in the initial stage of investigation. The records seized in connection with the appointment are being perused. The witnesses from whom the bribe was demanded by the accused are to be questioned and handwritings of the remaining 8_ B.A.No.5591/2021 8 _candidates who are selected by the accused are also to be recorded. These handwritings are to be sent to the Regional Forensic Science Laboratory for comparison along with their corresponding answer sheets.”_ 14. On the basis of the above recitals in the statement filed by the investigating officer, learned counsel for the petitioners would contend that, at present there can be not even a _prima facie_ case against any of the petitioners that they committed an offence under Section 7 of the Act. 15. The report of the handwriting expert would be required only to ascertain whether the offences punishable under Sections 461 and 471 I.P.C have been committed by any person. Such a report would not be required to establish a _prima facie_ case against the petitioners for an offence under Section 7 of the Act. 16. The demand for bribe was allegedly made by petitioners 1 to 4 in the year 2017. Therefore, the offence, if any, committed by them would be under Section 7 of the Act before it was amended by Act 16 of 2018. 17. Section 7 of the Act, before amendment, states that, whoever, being, or expecting to be a public servant, accepts or B.A.No.5591/2021 9 obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine. 18. A bare perusal of the unamended Section 7 of the Act would show that, in order to attract the offence punishable under that provision, it is not necessary that bribe should have been actually received or obtained by a public servant. The offence under that provision would be attracted, even if any public B.A.No.5591/2021 10 servant makes an attempt to obtain illegal gratification from any person for himself or from any other person as a motive or reward for doing or forbearing to do any official act or for showing favour or disfavour to any person. 19. During the second preliminary enquiry conducted by the VACB, the candidates have given statement before the enquiry officer that petitioners 1 to 4 had demanded bribe from their relatives. During such enquiry, the relatives of the candidates have also given statement that petitioners 1 to 4 had demanded bribe from them for appointment of the candidates to the posts in the Bank. It is not necessary here to narrate the details of the statements so given by the witnesses. The second preliminary enquiry report, _prima facie,_ discloses commission of an offence under Section 7 of the unamended Act by petitioners 1 to 4. Therefore, it cannot be found that the F.I.R against them has been registered without any basis. 20. It is true that the statements of the relatives of the candidates have not been recorded during the investigation conducted after the registration of the F.I.R. But, if the aforesaid B.A.No.5591/2021 11 witnesses stick on to their stand even at the time of recording their statement during the investigation, custodial interrogation of petitioners 1 to 4 may become necessary to have a meaningful investigation in the case. 21. The investigation of the case is at the initial stage. If petitioners 1 to 4 are granted pre-arrest bail, it would certainly hamper the investigation. 22. Moreover, even as per the bail application, the first petitioner is still the Chairman of the Bank and petitioners 3 and 4 are still members of the Director Board of the Bank. It means that they are persons who would be able to exert influence over the staff of the Bank who would have knowledge regarding the malpractices conducted in the examination. 23. Dealing with the question of granting bail to the accused in a case relating to malpractices conducted in the examination for admission to professional courses, in **Vinod Bhandari v. State of M.P : (2015) 11 SCC 502** , the Supreme Court has observed as follows: B.A.No.5591/2021 12 _“Undoubtedly, the offence alleged against the appellant has serious adverse impact on the fabric of the society. The offence is of high magnitude indicating illegal admission to large number of undeserving candidates to the medical courses by corrupt means”._ 24. In **State of Bihar v. Amit Kumar@ Bacha Rai : AIR 2017 SC 2487** , dealing with the question of granting bail to the accused in a case relating to malpractices conducted in a competitive examination, the Apex Court observed as follows: _“We are also conscious that if any undeserving candidates are allowed to top exams by corrupt means, not only will the society be deprived of deserving candidates, but it will be unfair for those students who have honestly worked hard for one whole year and are ultimately disentitled to a good rank by fraudulent practices prevalent in those examinations. It is well settled that socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. Usually socio-economic offence has deep rooted conspiracies affecting the moral fiber of the society and causing irreparable harm, needs to be considered seriously”._ B.A.No.5591/2021 13 25. Having considered the above aspects, I am not inclined to grant the benefit of pre-arrest bail to petitioners 1 to 4. 26. Regarding petitioners 5 to 13, they do not now figure as accused in the case. Therefore, there is no reasonable basis for their apprehension that they would be arrested by the police in connection with the case. Therefore, no question of granting pre-arrest bail to them arises. 27. Consequently, the application for anticipatory bail is dismissed. However, if anyone of the petitioners 5 to 13 is made an accused in the case and if the investigating officer intends to question him, notice under Section 41A of the Code shall be given to him. ## (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr B.A.No.5591/2021 14 ## **APPENDIX IN B.A.NO.5591 OF 2021** PETITIONER'S ANNEXURES: ANNEXURE A : TRUE COPY OF THE FIR IN CRIME NO.04/2021 OF VACB, THRISSUR. ANNEXURE B : TRUE COPY OF THE PRELIMINARY ENQUIRY REPORT SUBMITTED BY THE DEPUTY SUPERINTENDENT OF POLICE AND ITS TYPED COPY. **RESPONDENTS' ANNEXURES** : NIL TRUE COPY PS TO JUDGE