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Himachal Pradesh High Court · body

2003 DIGILAW 144 (HP)

SURINDER MOHAN KATWAL v. STATE OF H. P.

2003-06-11

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—These two petitions for grant of pre-arrest bail, under Section 438 of the Code of Criminal Procedure, arise out of similar facts and circumstances and are being disposed of by this order. 2. To appreciate the controversy and the respective contentions of the parties, few facts may be noticed: Petitioners in both the petitions, Shri Surinder Mohan Katwal, is a retired Himachal Cadre I.A.S. Officer. After his superannuation, he was appointed Member of the Himachal Pradesh Subordinate Service Selection Board, hereinafter referred to as "the Board", in October, 1998. In August 1999, he was given additional charge of Chairman of the Board. The petitioner was appointed as Chairman of the Board in January, 2002. 3. The Enforcement Department of the Government of Himachal Pradesh received some secret information to the effect that some documents and record in the Board was being destroyed on which the Government constituted a high level Inquiry Team. The Special Inquiry Team searched the official residence of the petitioner at Hamirpur, house at Una and ancestral house from March 11 to March 13, 2003. The office of the petitioner4 was sealed and subsequently searched. 4. During the search of the office of the petitioner, some documents were seized by the Police pertaining to the selection of candidates for various posts. Allegations against the petitioner are that the answer-sheets and other related documents of selection were tampered with. Certain persons were given high marks in the interview to enable them to get into the service. While awarding marks for interview, the other members, according to the Inquiry Report, were not consulted. In one case, according to the Inquiry Report, no mark was awarded to a candidate in the interview and even if one mark was awarded to that candidate, the candidate would have been selected. The Inquiry Report concluded that the petitioner mis-used his official position in connivance with some candidates to give them wrongful gain at the cost of the deserving candidates and recommended that a case for offences punishable under Sections 420, 465, 467, 468, 471, 217, 218, 120-B of the Indian Penal Code read with Section 13(2) of the Prevention of Corruption Act may be registered. 5. A First Information Report in terms of FIR No. 3 of 2003 was accordingly registered with Police Station (Enforcement) North Zone, Dharamshala. 5. A First Information Report in terms of FIR No. 3 of 2003 was accordingly registered with Police Station (Enforcement) North Zone, Dharamshala. Another FIR in terms of FIR No. 4 of 2003 was also registered with the same Police Station for similar offences against the petitioner. In that case, the Board conducted interviews for selection to T.G.T. (Medical, Non-medical and Arts) Courses. During inquiry, it was found that marks awarded to the candidates were tampered with and in one case; the interview marks were changed from 10 to 18 to enable that candidate to get selected. This tampering, it is alleged, was done by the petitioner. 6. The petitioner by these two petitions pray for pre-arrest bail on the grounds that his office was sealed by the Police on March 9, 2003 itself. The petitioner came to know about it through the newspapers. He immediately came to Hamirpur on March 11, 2003. On that date, his residence at Hamirpur was searched. His house at Una, in the name of his wife, and his ancestral house were also searched but nothing incriminating was found. According to the petitioner, he assisted the Inquiry team and the Investigation in accordance with the directions of the concerned Police Officers. 7. The case of the petitioner is that these cases have falsely been registered against him with the change of the Government at the instance of the present Ruling Party as he was appointee of the previous Government and during the campaign for recent elections for Assembly "lot of hue and cry was raised by the members of now ruling party, alleging bungling in the appointment by the Officers of the Board." It is his case that he had cooperated with the Investigating Agency and the Inquiry Team. The record has already been seized by the Investigating Agency He was thoroughly interrogated by Senior Police Officers and therefore not required by the Investigating Agency According to the petitioner, there is no evidence with the Police to connect him with the commission of alleged offences. He does not own any property disproportionate to his known sources of income and, therefore, custody of the petitioner will not in any manner advance the case of the prosecution. 8. The petitioner submits that if arrested, he will become subject of ridicule and public humiliation. He does not own any property disproportionate to his known sources of income and, therefore, custody of the petitioner will not in any manner advance the case of the prosecution. 8. The petitioner submits that if arrested, he will become subject of ridicule and public humiliation. He pleads that he is physically unfit and had an operation of enlarged prostrate gland in 1996 and still is suffering from the disease. He is also patient of hypertension and pancreatic and his gall bladder has also been removed for which he requires medical attention. 9. The petition is opposed on the grounds that there have been gross irregularities in the process of selection in contravention to the instructions of the Board. The petitioner abused his official position and wrongly selected some candidates in connivance with others. The petitioner mis-conducted himself, which eroded the faith and confidence, of the people in Board. The charges against the petitioner are too grave and serious which disentitles him from the discretion of the Court under Section 438 of the Code of Criminal Procedure. 10. It is admitted position that entire record of the Board is with the Investigating Agency and nothing is to be recovered. Custodial interrogation of the petitioner, it is pleaded, is necessary to get to the true facts of the case. 11. I have heard Mr. T.R. Chandel, learned Counsel for the petitioner and learned Advocate General for the State. I have also perused the record and the case diaries. 12. Mr. Chandel, learned Counsel for the petitioner, vehemently urged that the petitioner is accused of having forged marks-sheets and other related documents. To facilitate the investigation, the petitioner has already given his specimen signatures and handwriting to the Investigating Agency and, therefore, his custody by the police will not serve any purpose. The custody of the petitioner, contends Mr. Chandel, is sought for an ulterior motive, which would humiliate the petitioner. There are no grounds, submits Mr. Chandel, to reject the petition particularly when he is not likely to flee from justice and no recovery is to be made from him. 13. On the other hand, learned Advocate General submits that the offences with which the petitioner is charged are grave, which disentitles the petitioner to the discretion of this Court. There are no grounds, submits Mr. Chandel, to reject the petition particularly when he is not likely to flee from justice and no recovery is to be made from him. 13. On the other hand, learned Advocate General submits that the offences with which the petitioner is charged are grave, which disentitles the petitioner to the discretion of this Court. Referring to records, he submits that the Rules of Business of Procedure of the Board were framed in the year 1999 which were changed in 2001. These rules provide for destruction of the record after three months of the completion of the formalities of selection. The rules were not approved by the Government. However, during the course of arguments, learned Advocate General did not press this point, as he could not show that under the notification constituting the Board, the Board was required to get approval of the Government to frame the rules of business and procedure for the Board. The Board, it appears, framed these rules after going through the rules of Himachal Pradesh Public Service Commission and taking into consideration its own requirement. 14. Section 438 of the Code of Criminal Procedure provides for the grant of pre-arrest bail. Section 438 of the Code reads: "438. Direction for grant of bail to person apprehending arrest— (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions such directions in the light of the facts of the particular case, as it may think fit, including— (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that a person shall not leave India without the previous permission of the court; (iv) such other condition as may be imposed under sub-section (3) of Section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)". 15. A reading of this provision shows that the Court must apply its mind to the question and decide whether a case is made out for the grant of such relief or not. A Constitution Bench of the Supreme Court in Gurbaksh Singh Sibia and others v. State of Punjab, (1980) 2 Supreme Court Cases 565, observed: "In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicants presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interest of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, (1962) 3 SCR 622, which though, was a case under the old Section 498, which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail." (Emphasis supplied) 16. Thus if the accusations against the petitioner stem from any motives to injure and humiliate a petitioner by having him arrested, an order under Section 438 of the Code would generally follow. On the other hand, as noticed above, considering the antecedents of the petitioner, ensconced with the anticipatory bail, the applicant is likely to flee from justice, then such an order would not be made. On the other hand, as noticed above, considering the antecedents of the petitioner, ensconced with the anticipatory bail, the applicant is likely to flee from justice, then such an order would not be made. The Apex Court pointed out that several considerations must weigh with the Court while granting and rejecting the anticipatory bail. Considering the importance of liberty of an individual, a larger interest of the public or State must also be considered. The Court indeed has to consider the freedom of individual, which is of paramount consideration in the context of the larger interest of the Society. No hard and fast rules could therefore be laid in the exercise of the discretion for the grant of pre-arrest bail. Elsewhere Their Lordships observed : "We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice would be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognized over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application." 17. It is now well-settled that power to grant anticipatory bail should be exercised with due care and circumspection but at the same time, the Court should not hesitate to use the discretion where it is justified in the facts and circumstances of the case. 18. In the present case, it is true that the petitioner co-operated during the course of inquiry and also in investigation. It is equally true that nothing is to be recovered from him. It is also true that presently there is no accusation that the petitioner accepted illegal gratification from any candidate but at the same time, as submitted by the learned Advocate General, the investigation has to go beyond the documents seized. As pointed by the Apex Court in State v. Anil Sharma, (1997) 7 Supreme Court Cases 187, custodial interrogation is more meaningful than questioning a suspect who is armed with the favourable order under Section 438 of the Code. 19. As pointed by the Apex Court in State v. Anil Sharma, (1997) 7 Supreme Court Cases 187, custodial interrogation is more meaningful than questioning a suspect who is armed with the favourable order under Section 438 of the Code. 19. I do not wish to comment on the evidence so far collected by the Investigating Agency and the necessity of custodial interrogation of the petitioner. However, taking into consideration the nature and gravity of the circumstances, liberty of the petitioner vis-a-vis fair and fearless investigation of the case, I do not find it to be a fit case for the grant of discretion under Section 438 of the Code. 20. However, considering the fact that the petitioner has been interrogated at considerable length during the course of investigation/inquiry, nothing is to be recovered from him, the petitioner is under suspension and some other person is officiating as Chairman, has no access to the office and no influence on the officials of the Board, is not likely to flee away from the cause of justice and weighing the right of liberty of the petitioner on the one hand and interest of the investigation on the other, it would only be appropriate, fair and reasonable if period of custodial interrogation is fixed. The petitioner will surrender before the Investigating Officer immediately, the Investigating Officer shall complete the interrogation of the petitioner within three days. On the completion of the interrogation, the petitioner shall be released on bail on his furnishing bonds in the amount of rupees 25,000 with two sureties of like amount in each of the cases to the satisfaction of the Investigating officer. 21. This order shall be subject to conditions : The petitioner shall : (a) make himself available for investigation as and when required by the Investigating Officer; (b) not influence the witnesses or otherwise tamper with the evidence; (c) not leave India without the prior permission of the Court; (d) leave his address with the Station House Officer of Police Station (Enforcement) North Zone, Dharamshala where he would be available if required. It is clarified, if the petitioner mis-uses his liberty or violate any of the conditions imposed upon him, the Investigating Agency shall be free to move this Court for the cancellation of the bail. It is clarified, if the petitioner mis-uses his liberty or violate any of the conditions imposed upon him, the Investigating Agency shall be free to move this Court for the cancellation of the bail. I draw support for the orders I have passed from Gurbaksh Singh Sibia supra and Abdul Hamid Ansari and others v. State of Maharashtra, 2000 (2) Criminal SCC 1505. Any observation made herein above, shall not be construed to be reflection on the merits of the case. The record of the Investigating Agency be returned. A copy of this order be placed on file C.M.P. (M) No. 573 of 2003. Order accordingly.