Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 64 (HP)

SURINDER MOHAN v. STATE OF H. P.

2004-04-02

M.R.VERMA

body2004
JUDGMENT M.R. Verma, J.—This application under Sections 438 of the Code of Criminal Procedure has been moved by the petitioner-accused (hereafter referred to as the accused) for grant of anticipatory bail in case FIR No. 1/2004 dated 21.1.2004, under Sections 420, 468, 471, 120-B of the Indian Penal Code and Section 13(2) of the Prevention of Corruption Act, 1988, registered at Police Station, Enforcement North Zone, Dharamshala. 2. The case of the prosecution in brief is that during the course of enquiry about functioning of the H.P. State Service Selection Board, Hamirpur (hereafter referred to as the Board), it transpired that the said Board conducted examination for 288 posts of Physical Education Teachers and one post of Hostel Superintendent in Technical Education Department, Screening test was held on 16.9.2001 and successful candidates were put to ground test and on 27.2.2002, 515 candidates were declared successful. In order to conduct the interviews of the successful candidates, two Interview Boards one headed by the accused and the other headed by his co-accused Vidya Nath were constituted. The Boards so constituted recommended 238 candidates for selection. It was also found that in most of the cases the performance of the candidates compiled through the computer did not correspond to the manual checking. It was also noticed that one Rakesh Kumar Chhabra was shown to have secured 13 marks as per the merit list whereas as per the interview broad sheet he was awarded only 7 marks. Similarly, one Uttam Singh Dod who on manual checking had originally obtained 138 marks in the written examination was wrongly awarded 132 marks finally, whereby he was out of selection. One Sudhir Chand was also found to have been wrongly recommended for selection and one Vir Singh was wrongly awarded 7 marks more than the actual 103 marks having been obtained by him in the written test and thus was finally recommended for selection. On the basis of these findings in the inquiry, aforesaid FIR had been registered against the accused and his co-accused Vidya Nath an ex-member of the Board and others. 3. The investigation in the case is at the initial stage and so far it has been found that false record/merit list has been prepared to give benefit to a few candidates and thereby selection of those who had qualified for selection on merits had been denied. 4. 3. The investigation in the case is at the initial stage and so far it has been found that false record/merit list has been prepared to give benefit to a few candidates and thereby selection of those who had qualified for selection on merits had been denied. 4. The bail has been prayed for by the accused on the grounds that the accused having been employed by the previous Government, the present Government is dealing with the accused with vindictive and biased attitude and harassing him unnecessarily and he had instituted criminal complaint against the present head of the Government and few others some of whom are Ministers of the present Government and another complaint against one Kulbir Chauhan, ADA who was associating himself in the process of investigation. It is also averred that the entire record of the Board had been taken in possession by the Investigating Agency and nothing is to be recovered from the accused, who is innocent and thus entitle for grant of pre arrest bail. 5. I have heard learned Counsel for the accused and the learned Advocate General for the respondent-State and have also gone through the police report and the investigation records. 6. It was contended by the learned Counsel for the accused that the present Congress Government is harassing the accused without any basis and to satisfy the whims of the present head of the State who during the earlier regime of the BJP was leader of the opposition and had been making the allegation of corruption against the accused and as soon as the present Government took over, the petitioner was removed from service which suggests the vindictive attitude of the State as a result of which the petitioner is being victimised. It is also averred that the accused had filed complaint against the present head of the Government and a few other ministers which is yet another reason for victimisation of the accused. It was further contended that in two FIRs i.e. FIR No. 4 of 2003 registered on 8.4.2003 and FIR No. 8 of 2003 registered on 16.5.2003, respectively regarding selection of Vidya Upasak and Trained Graduate Teachers, the entire record of the Board had been taken in possession and the official as well as private residence of the accused including his house were raided but nothing incriminating was found. It is also submitted that the accused as and when so directed had joined investigation and will continue to so join if so directed, but in the facts and circumstances of the case he is entitled to be released on bail. To substantiate his contention, the learned Counsel has relied on Om Prakash Chautala v. State of Haryana, 2000 (2) RCR (Criminal) and Joginder Kumar v. State of U.P. and others, AIR 1994 SC 1349. 7. On the other hand, the learned Advocate General had contended that during the term of the accused as Chairman of the Board, thousands of persons were selected and recruited to different categories and cadres of the employees of the Government. As and when on examination of the records some corrupt practices, offence/misconduct was found to have been committed qua a particular selection, a case was registered. The examination of the record is still continuing and the latest outcome of examination of such record qua the selection of Physical Education Teachers is that by tampering with the records, the candidates who could not have been selected were selected by manipulation of their marks in the written test/interview and the deserving candidates who had qualified for selection in the ordinary course were thus ousted from being selected. It was also contended that the investigation in the matter is at the initial stage and the accused as and when joined the investigation had adopted highly non co-operative attitude. It was therefore urged that keeping in view the bungling in the selection by tampering with the records and the inferences which can be drawn therefrom, it is a case for custodial interrogation, moreso in view of the non co-operating and undesirable attitude of the accused at the time of joining the investigation. In these circumstances, the learned Advocate General urged that this application filed by the accused deserves dismissal and may be dismissed. To substantiate his contention, the learned Advocate General has relied on State Rep. by the CBI v. Anil Sharma, (1997) 7 SCC 187. 8. In Joginder Kumars case (supra) relied upon for the petitioner, the Apex Court held as follows: "No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. 8. In Joginder Kumars case (supra) relied upon for the petitioner, the Apex Court held as follows: "No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person, It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the persons complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do." 9. However, in the same case it was further held as under: "8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? 9. A realistic approach should be made in this direction. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two? 9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilitieson the other of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violator or the law abider; of meeting the challenge which Mr. Justice Cardoze so forthrightly met when he wrestled with a similar task of balancing individual rights against societys rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore Justice Cardoze, observed: “The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Adams case (People v. Adams) strikes a balance between opposing interest. We must hold it to be the law until those organs of Government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass.” 10. To the same effect is the statement by Judge learned Hand, in Fried Re: "The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible; like other human institutions criminal proceedings must be a compromise." The quality of a nations civilisation can be largely measured by the methods it uses in the enforcement of criminal law." 10. Perfection is impossible; like other human institutions criminal proceedings must be a compromise." The quality of a nations civilisation can be largely measured by the methods it uses in the enforcement of criminal law." 10. In Om Prakash Chautalas case supra, Punjab and Haryana, High Court granted anticipatory bail to the accused because (i) there was no evidence that accused tried to influence the witness ever since the registration of the FIR; (ii) that the cases depend upon documentary evidence consisting of public record in possession of the State and thus incapable of being tampered with or destroyed; (iii)that there was no suggestion that the accused had the tendency to flee from justice; (iv) that the accused had amassed wealth disproportionate to his means and (v) that the political background of the petitioner was ipso facto, no reason for disallowing bail to him. In this case, it was also noticed that there was no allegation against the accused that he had not co-operated with the investigation but had joined the investigation as and when so required. 11. In Directorate of Enforcements case the Honble Supreme Court has held as follows: "8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view at the decision of the Constitution Bench of this Court in Gurbaksh Singh which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurbaksh Singh said thus: (SCC P. 584, para 21) "21.............A wise exercise of judicial power inevitably takes care of the civil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power of grant anticipatory bail." 13. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hall mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power of grant anticipatory bail." 13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code." 12. In case State v. Anil Sharma supra the Honble Supreme Court held as under:— "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible police officers would conduct themselves in a responsible manner and that these entrusted with the task of disinterring offences would not conduct themselves as offenders". 13. In K.K. Jeraths case the Honble Supreme Court held as under: "5. We do not wish to enter into any detailed discussion on these legal aspects raised by the learned Counsel for the respondents as this court in the several decisions referred to by the learned Counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence. This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed." 14. The legal position which emerges from the above thus is that the purpose of Section 438 Cr.P.C. is to relieve a person from unnecessary arrest or a disgrace of being detained in jail. Therefore before granting anticipatory bail a court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case he is sought to be arrested. Such a satisfaction can be derived only from the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated or that his arrest is intended to victimise, disgrace and dishonour him. Similarly, the mere assertion of the petitioner that he would co-operate during investigation in itself is not a satisfactory ground for grant of anticipatory bail. On the contrary court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. In case it is found that grant of anticipatory bail will seriously and adversely affect the investigation, this ground will be sufficient to deny anticipatory bail. 15. It is against the aforesaid legal background that this application deserves to be considered. 16. In the case in hand, a perusal of the record reveals cuttings and over writings in the result sheets at various places, such as at red marked pages 29 and 30 (Post PET, opted District Shimla), page 32 (Post: PET, opted District Una), pages 36 and 38 (Post: PET, opted District Kullu), pages 39, 40, 41 and 44 (Post: PET, opted District Kangra), pages 50 and 52 (Post: PET, opted District Chamba. Prima facie there is increase/decrease in the marks as alleged by the prosecution, without any apparent reason available or explained for it. As is the case of the Investigating Agency by this increase and decrease in the marks by tampering with the records some of the unsuccessful candidates have been recommended for selection and stood selected and according to the learned Advocate General even appointed whereas those who deserved to be selected and appointed stood ignored. This situation is, prima facie, reflected by the records and the accused has not yet offered any explanation of these lapses in preparing the select/ marks sheets which are admittedly signed by the accused and his co-accused. Thus prima facie involvement of the accused in increasing /decreasing the marks and thereby giving undue benefit to a few candidates is made out. 17. Even if the present Chief Minister while leader of the opposition had made charges of corruption against the Board that does not necessarily mean that such charges /allegations were made out of bias or were baseless. In fact it is duty of the leader of the opposition to point out the lapses of the Government and its agencies inside and outside the floor of the House. Therefore, simply because the person who had leveled allegations of corruption against the functioning of the Board of which the accused was the Chairman, it cannot be said that it is a case of victimisation. As stated herein above, the lapses of counting higher marks or lesser marks then obtained in the cases of the candidates, prima facie, goes to show that the selections were not made in a fair and upright manner, which, prima facie, lends credibility to the case against the accused and it cannot be said that he is being involved in a false case. 18. Be it stated that this is not the first case of tampering with the records by the accused with a view to favour certain candidates to the prejudice of others in the matter of selection. Admittedly, two FIRs against the accused had been earlier registered in respect of two other categories of selectees. 18. Be it stated that this is not the first case of tampering with the records by the accused with a view to favour certain candidates to the prejudice of others in the matter of selection. Admittedly, two FIRs against the accused had been earlier registered in respect of two other categories of selectees. The contention of the learned Counsel for the accused that during investigation of those cases, the record had been taken over by the investigating agency and the search of the houses/residences of the accused were carried out but nothing incriminating was found does not support the case of the accused in any manner for the reason that the cases earlier registered against the accused had, admittedly, not been sent up for cancellation but are admittedly being processed with a view to prosecute the accused as submitted by the learned Advocate General. 19. Mere filing of the complaint by the accused against the Chief Minister and other Ministers is also no reason to conclude that this is a case of victimisation for the simple reason that it is not the case of the accused that investigation against him in different cases had started after he had lodged the complaint against the Chief Minister and a few other Ministers. A complaint filed by him at a stage later than the institution of the inquiry about the affairs of the Board and finding of the incriminating material against the accused and lodging of a few FIRs against him will, prima facie, show that lodging of the complaint may be a counter-blast by the accused himself and not vice versa. 20. In any case so far as the present case is concerned, the material collected by the investigating agency prima facie raises the accusing finger towards the accused and a through investigation into the matter is decidedly required in the public interest as well as in the interest of justice. 21. Now, the question arises whether the investigation in the facts and circumstances of the case can be continued and completed without custodial interrogation of the accused or not. Primarily a case as in hand where the undeserved got employment and those who deserved were deprived of it is not an ordinary case of corruption but is a serious offence and the malice is on the increase. Primarily a case as in hand where the undeserved got employment and those who deserved were deprived of it is not an ordinary case of corruption but is a serious offence and the malice is on the increase. It is a historical fact that after the Second World War corruption amongst public servants posed a serious problem to the Government and it was realised that special legislation was required with a view to eradicate the evils of bribery and corruption. Hence, Act (II) of 1947 came into being but to make the law more stringent new Act of 1998 was enacted. The object of the Act is to eliminate bribery and corruption. Such laws which are meant for eradication of social evils and the connected laws call for liberal interpretation enabling the fulfillment of the object of the Act. Thus, the cases of bribery and corruption are of the nature wherein anticipatory bail should not be granted once the involvement of the accused is pritna facie shown in the commission of the offence. It is more so because in such caises the indulgence in corruption is a matter between the person who offered the bribe and the person who accepted it. Evidently, both would like to keep it a secret and would not come forward to speak the truth. Thus, it is difficult to secure evidence in such cases except by a through interrogation of the accused which may lead to the finding of the evidence. 22. It may also be pointed out here that a perusal of the ziminies maintained by the Investigating Officer not only reveals the non-co-operative attitude of the accused but the ziminies coupled with the hand written note of the accused placed on record reveals that he is dictating his own terms to the investigating officer in the matter of day(s) to be fixed for his interrogation. It is evident from a note dated 21.3.2004 purporting to be signed by the accused and appended to the order requiring attendance at investigation under Section 160 of the Cr.RC. issued to the accused to attend the investigation on 22.3.2003, that the accused showed his reluctance to attend on the day specified and desired that the next date for his interrogation should be fixed after 27th of March and the date so fixed be conveyed to him. issued to the accused to attend the investigation on 22.3.2003, that the accused showed his reluctance to attend on the day specified and desired that the next date for his interrogation should be fixed after 27th of March and the date so fixed be conveyed to him. Evidently, a dictatorial attitude in not abiding by what the investigating officer wanted. On the contrary it is dictating the terms by the accused about the fixing of the days when his interrogation should be conducted. In this conduct of the accused it is writ large that his thorough and fruitful interrogation is not possible if he is granted anticipatory bail. Thus, keeping in view the gravity and nature of the offences and the aforesaid conduct of the accused this is a case for custodial interrogation and not for grant of anticipatory bail. As a result, this application is dismissed. Dasti Copy as prayer for.