IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 Bail Appl..No. 4943 of 2009 CRIME NO.241 OF 2009 OF BAKEL POLICE STATION, KASARAGOD PETITIONERS: ACCUSED: ------------------------------- 1. K.P.ABDUL KHADER S/O.ABDULLA HAJI, AGED 53 YEARS , NEAR JUMA KASJID, KALANAD, KALANAD VILLAGE, KASARAGODE. 2. QUATAR IBRAHIM HAJI S/O.ABOOBACKER, AGED 64 YEARS WHITE HOUSE, KOMBANPARA, KALANAD VILLAGE, KASARAGODE. 3. SHAFI KATTAKAL, S/O.UMBAI @ MUHAMMED, AGED 53 YEARS RISWAN COTTAGE, KATTAKKAL, KALANAD VILLAGE, KASARAGODE. BY ADV. SRI.T.K.KUNHABDULLA RESPONDENT: STATE: --------------- STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, CRIME NO. 241 OF 2009 OF BAKEL POLICE STATION. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20/1/2010, THE COURT ON 27/01/2010, PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 4943 OF 2009 ------------------------------------------------------ Dated this the 27th day of January, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioners are accused Nos.1 to 3 in Crime No.241 of 2009 of Bakel Police Station. 2. The offences alleged against the petitioners are under Sections 120B, 406, 468 and 471 read with Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is the following: The Central Government provided financial assistance for modernization of Madrassa education under Centrally Sponsored Scheme. Under the Scheme, a Madrassa which provides classes for the students in Science, Mathematics and English by engaging qualified teachers would be eligible for reimbursement of the remuneration paid to the teachers at the rate of Rs.3,000/- per subject per month, subject to a total sum of Rs.72,000/- per year. The necessary funds would be B.A. NO. 4943 OF 2009 :: 2 :: disbursed by the Director of Public Instruction, Thiruvananthapuram, at the disposal of the Deputy Director of Education. The petitioners were respectively the General Secretary, President and Treasurer of E-Anathul Islam Higher Secondary Madrassa, Kalanad, Kasaragod. A sum of Rs.72,000/- was sanctioned to the said Madrassa as per the claim made by them and the amount was disbursed to the Madrassa. It was claimed by the Madrassa that H.Santhosh Kumar and T.Aneesh were taking classes in the Madrassa. In order to claim the amount, the attendance register, acquittance roll and other records were produced by the Madrassa. 4. It would appear that one A.M.Hassainar raised an allegation that the Madrassa had unlawfully and fraudulently claimed and realised an amount of 75,000/- for the period 2004-2005, without providing any education as claimed by them and without even appointing the two teachers mentioned by them. The Director, Vigilance & Anti-Corruption Bureau, conducted a surprise check, on the basis of the allegations raised by A.M.Hassainar. The surprise check revealed that though as per the records, the Madrassa had engaged H.Santhosh Kumar and T.Aneesh, they were not so employed during the relevant period. The office bearers of the B.A. NO. 4943 OF 2009 :: 3 :: Madrassa had fabricated the records to make it appear that the aforesaid two teachers were engaged for taking classes in Science, Mathematics and English. It was also revealed that the Madrassa had fraudulently obtained Rs.72,000/- from the Government of India, which was disbursed through the educational authorities in the State. On the basis of the information given by the Director of Vigilance and Anti-Corruption Bureau, Thiruvananthapuram, Crime No.241 of 2009 was registered in the Bakel Police Station for the aforesaid offences. 5. Learned counsel for the petitioners contended that the petitioners are innocent. The Headmaster of the Madrassa alone was responsible for running the Madrassa. The District Educational Officer and the Assistant Educational Officer had visited the Madrassa on different dates to inspect the functioning of the classes. The said Educational Officers had verified all the records and they were found to be correctly maintained. The amount was sanctioned only after the Educational Officers were fully satisfied about the proper functioning of the Madrassa. It is also contended that if any offence is committed, it could only be by the District Educational Officer and the Assistant Educational Officer who conspired with the Headmaster of the Madrassa. The offence would be under the B.A. NO. 4943 OF 2009 :: 4 :: Prevention of Corruption Act. The petitioners also state that the case was initiated on the basis of political rivalry. 6. Learned counsel for the petitioners submitted that E- Anathul Islam Higher Secondary Madrassa is conducted by Kalanad Hydrose Jama-Ath Committee, which is a reputed Muslim Jama-Ath Committee consisting of large number of persons. The Jama-Ath Committee is not in need of obtaining any amount fraudulently. The Committee in the meeting held on 23.7.2009 decided to settle the case with the Government by compensating the loss of Rs.72,000/-. On 3.8.2009, the Committee addressed a letter to the Deputy Director of Education, Kasaragod, stating that the Committee was ready to settle the case with the Government and to pay an amount of Rs.72,000/- to the Government to compensate the loss. 7. The investigation revealed that H.Santhosh Kumar and T.Aneesh had not worked as teachers in the Madrassa during the relevant period. It was also revealed that their signatures were forged and records were manipulated to make it appear that H.Santhosh Kumar and T.Aneesh worked as teachers in the Madrassa during the relevant period. According to the prosecution, B.A. NO. 4943 OF 2009 :: 5 :: the amount of Rs.72,000/- was claimed and received fraudulently on the basis of fabricated accounts in order to make wrongful gain. 8. The Central Government had introduced a scheme for providing financial assistance for modernizing Madrassa education. It was apparently with a laudable object. It was intended to provide assistance to the weaker sections of the society. The scheme was not intended to be a source for fraudulently collecting financial assistance provided by the Central Government. No beneficiary under the Scheme could claim reimbursement without conducting the classes as provided in the Scheme. Public funds are not intended for disbursement to claimants who make false and unlawful claims. It is intended to provide assistance to the needy and who abide by the terms and conditions of the Scheme. If amounts are collected fraudulently on the basis of the fabricated documents, it cannot be viewed lightly. It is true that the Kalanad Hydrose Jama- Ath Committee, under whom the Madrassa is being conducted, has agreed to repay the amount to the Government. That is not at all a ground for exonerating the wrong doers or the offenders. At this stage, it cannot be held whether the petitioners are guilty of the offence or whether they are innocent. That is a matter to be B.A. NO. 4943 OF 2009 :: 6 :: considered by the Court at the time of trial and disposal of the case. 9. The contention of the petitioners that if any offence was committed, it could only be by the District Educational Officer and the Assistant Educational Officer who acted in conspiracy with the Headmaster of the Madrassa, cannot be accepted at this stage. The investigating agency has to make a proper investigation and to find out the culprits. If, during investigation, it is found that apart from the accused persons, any other person is also involved in the offence, nothing prevents the investigating officer from taking appropriate steps in that regard. The petitioners cannot be heard to contend, at this stage, that the District Educational Officer and the Assistant Educational Officer are the offenders. 10. The question to be considered is whether the petitioners are entitled to get the discretionary relief under Section 438 of the Code of Criminal Procedure. The offences alleged against the petitioners are grave in nature. On the ground that the Jama-Ath Committee had agreed to repay the amount to the Government, the petitioners cannot claim any special privilege in the matter of appropriate steps being taken during the investigation of the case. B.A. NO. 4943 OF 2009 :: 7 :: Normally, the investigative process cannot be interfered with by granting the discretionary relief under Section 438 of the Code of Criminal Procedure in cases of this nature. I am of the view that the petitioners are not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. Custodial interrogation of the petitioners may some times be required during investigation. If anticipatory bail is granted to the petitioners, it would certainly adversely affect the proper and smooth investigation of the case. For the aforesaid reasons, the Bail Application is dismissed. (K.T.SANKARAN) Judge ahz/