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2023 DIGILAW 631 (UTT)

Manohar Singh Kanyal v. State of Uttarakhand

2023-11-09

ALOK KUMAR VERMA

body2023
JUDGMENT : Alok Kumar Verma, J. These three Bail Applications have been filed for grant of regular bail in connection with the Case Crime No.01 of 2020, registered at police station Vigilance Sector, Dehradun, District Dehradun. 2. Applicants are in judicial custody under Sections 409, 420, 465, 467, 468, 471, 201, 120-B of the Indian Penal Code, 1860 and Section 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 3. These three Bail Applications have arisen from one Case Crime No. i.e. Case Crime No. 01 of 2020, therefore, these three Bail Applications are being considered and decided by this common order. Record of the Bail Application No. 159 of 2023 will be leading file. 4. Heard learned counsel for the parties at length and perused the materials placed on record. 5. Mr. Lalit Sharma, Advocate appearing for the State, submitted that the case of the prosecution is that an inquiry was conducted under the Chairmanship of Additional Chief Secretary, Government of Uttarakhand, regarding OMR sheets manipulation scam, committed in the examination of Village Panchayat Development Officer, conducted by the Uttarakhand Subordinate Service Selection Commission (in short, “Commission”). The said examination was conducted on 06.03.2016 at 236 centers in all 13 districts of the State. The process of scanning took place between 21.03.2016 to 26.03.2016, and the result was declared on 30.03.2016. During inquiry, it was found that the OMR sheets manipulation scam was committed in the said examination. Therefore, State Government had referred the matter to the Vigilance Department for inquiry on 23.07.2019. The Vigilance Department had conducted an inquiry. The OMR sheets of 90 successful candidates were sent to the Forensic Science Laboratory, Lucknow for examination. The fact of manipulation in 54 OMR sheets out of those 90 OMR sheets was confirmed by the Forensic Science Laboratory, Lucknow. Apart from this, the Forensic Science Laboratory also confirmed that front pages of three OMR sheets were torn. The Vigilance Department had conducted the inquiry. The Vigilance Department vide its report dated 20.11.2019 recommended for investigation. Upon the recommendation of the Vigilance Department, the State Government vide its letter dated 31.12.2019 directed for registration of the First Information Report. The First Information Report was lodged at Vigilance Sector, Dehradun on 08.01.2020 and later on 08.08.2022, the investigation was handed over to the Special Task Force, Dehradun. Upon the recommendation of the Vigilance Department, the State Government vide its letter dated 31.12.2019 directed for registration of the First Information Report. The First Information Report was lodged at Vigilance Sector, Dehradun on 08.01.2020 and later on 08.08.2022, the investigation was handed over to the Special Task Force, Dehradun. Statements under Section 161 and Section 164 of the Code of Criminal Procedure, 1973 were recorded. Upon conclusion of the investigation, charge-sheet has been filed. 6. Mr. Arvind Vashisth, learned Senior Advocate appearing for the applicant-Manohar Singh Kanyal, has argued that the applicant was the Secretary of the Commission. On 09.01.2016, it was decided by the then Chairman of the Commission (applicant-Raghubir Singh Rawat) along with the other members of the Commission including Examination Controller (applicant-Rajender Singh Pokhriya) that a confidential place is required for scanning of OMR sheets. Therefore, it would be appropriate to rent the house of the applicant’s wife for scanning the OMR sheets. After the completion of the said examination on 06.03.2016, on 14.03.2016 and 19.03.2016, orders were issued by the present applicant to the Contractor-RMS Techno Solutions India Pvt. Ltd. at Lucknow. The said letters had the directions as to how to proceed for the scanning of the OMR sheets and the entire process to be adopted. 7. Mr. Arvind Vashisth, learned Senior Advocate, further argued that one Diwan Singh Bhainsora was the member of the Commission. His daughter-in-law had appeared in the said examination, but could not succeed and therefore, he had lodged various kinds of complaints to cancel the said examination. On 05.05.2016 i.e. before the examination was cancelled, Examination Controller wrote a letter to the Chairman of the Commission pointing out that the relatives of the Hon’ble Minister of the Commission were candidates in the examination but could not succeed, therefore, the Hon’ble Minister and one Under Secretary are lodging false complaints at various levels and are mounting pressure upon him. 8. Mr. Arvind Vashisth, learned Senior Advocate, contended that for the peaceful conduct of examination, it is the Examination Controller, who has the main role and the Secretary has only administrative powers. Applicant has been falsely implicated in the present matter. He has not received single penny from any third person involved in the said examination. 9. Mr. Abhijay Negi, Advocate appearing for the applicant-Raghubir Singh Rawat, contended that the applicant was the Chairman of the Commission. Applicant has been falsely implicated in the present matter. He has not received single penny from any third person involved in the said examination. 9. Mr. Abhijay Negi, Advocate appearing for the applicant-Raghubir Singh Rawat, contended that the applicant was the Chairman of the Commission. The result was declared on 30.03.2016. After that, various complaints were received by the Commission. Applicant had apprised the State Government and sent all the documents for inquiry. Applicant wrote a letter to the Contractor-RMS Techno Solutions India Pvt. Ltd. on 19.03.2016 that the Examination Controller will be present during the scanning process. No objectionable material has been recovered from the possession of the applicant. The charge-sheet against the applicant has been filed only on the basis of the statements recorded under Section 164 of the Code of Criminal Procedure, 1973 of two employees of the Contractor-RMS Techno Solutions India Pvt. Ltd. The applicant, aged about 70 years, has been falsely implicated in this matter. 10. Mr. Karan Anand, Advocate appearing for the applicant-Rajender Singh Pokhariya, contended that the applicant was the Examination Controller. His role was only to conduct the examination. The Examination Controller has no role to check the question papers in the form of OMR sheets. On 07.05.2016, a report was sent to the State Government that no illegality was found in conducting the examination. Apart from the statement of Abhishek Mittal (an employee of Contractor-RMS Techno Solutions India Pvt. Ltd.), recorded during the investigation, the prosecution has not a single evidence against the applicant. Nothing has been recovered from his possession. The Secretary of the Commission was the responsible to collect the answer sheets from the Examination Controller. Manohar Singh Kanyal, the then Secretary, had made a note under his signature granting approval to use his wife’s house to check the OMR sheets which proves that he (Secretary) had some illegal motive and intention. 11. Per contra, Mr. Lalit Sharma, Advocate appearing for the State, contended that during the investigation, evidence was found that the OMR sheets were manipulated in the house of the wife of the applicant, Manohar Singh Kanyal, the then Secretary of the Commission. On 14.03.2016, applicant-Manohar Singh Kanyal wrote a letter to the Contractor-RMS Techno Solutions India Pvt. Ltd. that at the time of opening and closing of seal either Examination Controller or Chairman himself would be present. On 14.03.2016, applicant-Manohar Singh Kanyal wrote a letter to the Contractor-RMS Techno Solutions India Pvt. Ltd. that at the time of opening and closing of seal either Examination Controller or Chairman himself would be present. During the investigation, it has been revealed that at the time of scanning of the OMR sheets, all three applicants were present and the scanning process was carried out under their supervision. The investigation also revealed that money was collected from some candidates appearing in the examination. 12. Mr. C.K. Sharma, Advocate with Mr. Sharang Dhulia, Advocate appearing for Commission, submitted that the secret files and other documents pertaining to the said examination are not available in the office of the Commission. 13. It has been argued on behalf of the applicants that charge-sheet has already been filed and all three applicants have been in judicial custody for more than one year, and, it is well settled principle that “Bail is the rule and committal to jail is an exception”. 14. In Virupakshappa Gouda and Another vs. State of Karnataka and Another, 2017(2) CCSC 876 (SC), it has been observed that filing of the charge-sheet establishes that after due investigation, the investigating agency, having found materials, has placed the charge-sheet for trial of the accused person. 15. It is also well settled principle that each criminal case presents its own peculiar factual scenario. Therefore, a bail application cannot be allowed solely or exclusively on the ground that the fundamental principle of criminal jurisprudence is that the “Bail is the rule and committal to jail is an exception”. 16. The principle expounded above has to be applied appositely to the facts of each case. 17. At the stage of considering the bail application, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. 18. 16. The principle expounded above has to be applied appositely to the facts of each case. 17. At the stage of considering the bail application, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. 18. While considering a bail application, the Court has to keep in mind, (i) Whether there is any prime facie or reasonable ground to believe that the accused had committed the offence; (ii) Nature and gravity of the accusation; (iii) Severity of the punishment in the event of the conviction; (iv) Character, behavior, means, position and standing of the accused; (v) Danger of the accused absconding or fleeing, if released on bail; (vi) Likelihood of the offence being repeated; (vii) Reasonable apprehension of the witnesses being influenced; (viii) The larger interests of the public/State; (ix) Danger, of course, of justice being thwarted by grant of bail and other similar considerations. 19. The liberty of an individual is not absolute. The emphasis on individual liberty cannot be extended to such an extent that it creates disorder and anarchy in the society. The bail cannot be granted only on the ground of long incarceration. 20. In Gobarbhai Naranbhai Singala vs. State of Gujarat and Others, (2008) 3 SCC 775 , it was observed that the period of incarceration by itself would not entitle the accused to be enlarge on bail. In Anil Kumar Yadav vs. State (NCT of Delhi), (2018) 12 SCC 129 , the Hon’ble Supreme Court observed that in a serious matter, the mere fact that the accused is in custody for more than one year may not be a relevant consideration. 21. Therefore, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie considering why bail is being granted particularly where an accused is charged of having committed a serious offence. Any order dehors reasons suffers from non-application of mind as observed by the Hon’ble Supreme Court in Ram Govind Upadhyay vs. Sudarshan Singh and Others, (2002) 3 SCC 598 . 22. Any order dehors reasons suffers from non-application of mind as observed by the Hon’ble Supreme Court in Ram Govind Upadhyay vs. Sudarshan Singh and Others, (2002) 3 SCC 598 . 22. In view of the facts and circumstances of the case, there is no force in the submissions of learned counsel for the applicants and no good ground has been made out for enlarging the applicants on bail at this stage. From the perusal of the evidence, collected during the investigation, it prima facie appears that the applicants were involved in the OMR sheets manipulation scam. Therefore, all three bail applications are liable to be rejected. 23. For the reasons afore-stated, and without expressing any views on merits of the case, I reject all these three Bail Applications. 24. It is clarified that the observations made regarding the bail applications are limited to the decision, in the light of the facts, provided by the parties at this stage, as to whether the bail applications should be allowed or not and the said observations shall not effect the trial of the case. 25. A copy of this order be placed on the record of BA1 No.718 of 2023 and BA1 No.2159 of 2023.