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2025 DIGILAW 1066 (HP)

Divyanshu Gautam v. State of Himachal Pradesh

2025-05-20

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. 1. Applicant Divyanshu Gautam, apprehending his arrest, in case FIR No.04 of 2025, dated 07.03.2025, registered, under Sections 420, 467, 468, 471, 120-B of the Indian Penal Code, (hereinafter referred to as the ‘IPC’) Section 13(1)(a) and 13(2) of the Prevention of Corruption Act, 1988, (hereinafter referred to as the PC Act), has filed the present application, under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), with a prayer to direct the Police/Investigating Officer of Police Station SV & ACB, Hamirpur, District Hamirpur, H.P., to release him on bail, in the event of his arrest, in the above-mentioned case. 2. According to the applicant, he is innocent person and has falsely been named as accused, in this case. 3. The applicant is stated to be the permanent resident of District Shimla and according to the applicant, he is having deep roots in the society. 4. On the basis of the above facts, the applicant has given certain undertakings, for which, he is ready to abide by, in case, any direction, under Section 482 of the BNSS is issued by this Court. 5. On the basis of the above facts, a prayer has been made to allow the application. 6. When put to notice, the police has filed the status report, disclosing therein, that a complaint No.SV&ACB (R-SIT) Comp.-19/2023 (HMR)-4985, dated 01.03.2025, has been received on 06.03.2025, through Constable Surinder Kumar, in which, Superintendent of Police, SV & ACB, CR, Mandi was directed to register FIR under Section 420 and 120-B IPC and proceed with the investigation on the following allegations:- “The brief facts of the verification report are that consequent upon the registration of a criminal case FIR No. 04/2022 dated 23.12.2022 under section 420,120-B,201 IPC & section 7, 7A, 8, 12 of Prevention of Corruption Act, 1988 (as amended in 2018) in respect of the question paper leak of Junior Office Assistant (Information Technology) Post Code-965 from Himachal Pradesh Staff Selection Commission Hamirpur, malpractices/suspicions have been reported by various source reports in the conduct of a number of examinations held by HPSSC Hamirpur. Thus, on the basis of a WhatsApp complaint received from Mobile no. Thus, on the basis of a WhatsApp complaint received from Mobile no. 78768-31983 on 03-01-2023 against Divyanshu Gautam, candidate of JE(Civil) Post Code-845 (of HP Power Corporation Ltd) and JE (Civil) Post Code- 826 (HPSEBL, Shimla) conducted by erstwhile, HPSSC, Hamirpur, it was ordered by VHQ to verify the complaint vide Complaint No. SV&ACB (R-CR-HQ) Comp. 19/23(HMR)-9033 dated: 17.04.2023. After verification of the complaint EO, Inspector Rohit Kumar, PS SV&ACB Hamirpur, submitted verification report, alleging therein that during the course of enquiry, the relevant record pertaining to Post Codes-845 & 826 JE(CIVIL) has been procured from erstwhile HPSSC Hamirpur and the same has been scrutinized. On the perusal of record, it is found that erstwhile, HPSSC, Hamirpur vide advertisement No. 36.3-2020 dated 21.09.2020 notified 39 posts of JE Civil, Post Code 826 and 12 posts of JE Civil, Post Code 845. In Post Code-845, the screening test of which was conducted on 13.02.2021, candidate Divyanshu Gautam had scored 28.5 marks and was not selected while he scored 67.18 marks in the screening test of Post Code-826, which was conducted on 11.04.2021 and secured first position in the final merit list. He was selected for the post of JE(Civil) in HPSEBL, Shimla. The OMR Sheet of candidate Divyanshu Gautam bearing No. 826007396 was sent for forensic examination to SFSL Junga. The report received from SFSL Junga was analysed which revealed that there are marks of physical erasure and variation of tint of ink in respective 72 questions out of 170 questions of the OMR sheet. It is not possible to attempt 72 questions, then erasing them and reattempting them in short span of two hours. It appears that the tampering in the OMR sheet might have been committed by Divyanshu Gautam in connivance with Officers/Officials of the erstwhile, HPSSC, Hamirpur, who were involved in the scanning/evaluation process of OMR sheets of post code-826, which requires detailed investigation The scanning of the OMR sheets of Post Code-826 was ordered vide order no. HPSSSB-B(2)-415/2019 dated21 June 2021 by Sh. litender Kumar, the then Secretary, erstwhile HPSSC, Hamirpur. The responsibility of scanning was entrusted to Sh. Surinder Sharma, Under Secretary, Sh. Yudhveer Singh, the then Assistant Registrar-1, Smt. Uma Azad, Sr. Assistant, Exam Branch, Sh. Gopal Dass, Clerk Exam Branch, Sh. Kishori Lal, Peon, Exam Branch and Sh. Mateen Mohammad, Driver. HPSSSB-B(2)-415/2019 dated21 June 2021 by Sh. litender Kumar, the then Secretary, erstwhile HPSSC, Hamirpur. The responsibility of scanning was entrusted to Sh. Surinder Sharma, Under Secretary, Sh. Yudhveer Singh, the then Assistant Registrar-1, Smt. Uma Azad, Sr. Assistant, Exam Branch, Sh. Gopal Dass, Clerk Exam Branch, Sh. Kishori Lal, Peon, Exam Branch and Sh. Mateen Mohammad, Driver. As per the facts revealed on the basis of verification report and relevant record, a prima facie case for commission of offences punishable u/s 420,120-B IPC against Divyanshu Gautam, Jitender Kumar, the then Secretary, erstwhile HPSSC and members of the scanning/evaluation committee of JE(Civil) Post Code-826 viz. Sh. Surinder Sharma, Under Secretary, Sh. Yudhveer Singh, Assistant Registrar-I, Smt. Uma Azad, Sr. Assistant, Exam Branch, Sh. Gopal Dass, Clerk, Exam Branch, Sh. Kishori Lal, Peon, Exam Branch and Sh. Mateen Mohammad, Driver is made out. Action taken:- On the basis of verification report and record obtained, the case is being registered against Divyanshu Gautam, Jitender Kumar, the then Secretary, erstwhile HPSSC and members of the scanning/evaluation committee of JE(Civil) Post Code-826 viz. Sh. Surinder Sharma, Under Secretary, Sh. Yudhveer Singh, Assistant Registrar-l, Smt. Uma Azad, Sr. Assistant, Exam Branch, Sh. Gopal Dass, Clerk, Exam Branch, Sh. Kishori Lal, Peon, Exam Branch and Sh. Mateen Mohammad, Driver U/S 420, 120B, IPC." 7. On the basis of the above facts, Police registered the FIR and the police machinery swung into motion. 8. Thereafter, on 10.03.2025, Himachal Pradesh Staff Selection Commission, Hamirpur was requested to provide the relevant record of Post Code 826 and Post Code 845 (JE Civil). 8.1. It is the further case of the police that applicant-Divyanshu Gautam, obtained 67.18 marks for the post of J.E. Civil and stood at Serial No.1 in merit. He has joined the duties thereafter as Junior Engineer (Civil)in HPSEB Headquarters, Kumar House. 9. Highlighting the specific role of applicant-Divyanshu Gautam, on the basis of the report of FSL Junga, it has been pleaded that it appears that the OMR sheet might have been tampered with, in connivance with the officer/officials of the staff selection commission. 10. On the basis of the above facts, interim protection was given to the applicant and the case was ordered to be taken up on 22.3.2025. 11. 10. On the basis of the above facts, interim protection was given to the applicant and the case was ordered to be taken up on 22.3.2025. 11. On 22.3.2025, Police filed the supplementary status report, disclosing therein, that after perusing the report obtained from Himachal Pradesh Staff Selection Commission, Hamirpur, it was found that as per the advertisement No.36-3/2020, dated 21.09.2020, 39 posts of J.E. (Civil) Post Code-826 were advertised. 12. After receiving application on 11.04.2021, screening test was held in different Districts, in which, 5632 candidates appeared and result was declared on 25.08.2021. 120 candidates were shortlisted for verification of their documents. After verification of the documents, the final result was declared on 23.11.2021, in which, 38 posts, out of 39 were filled-in, in Himachal Pradesh State Electricity Board. 13. It has also been found in the investigation that against the post code-826, applicant-Divyanshu Gautam, appeared vide Roll No.8267396, under unreserved category and in the screening test, he obtained 65 marks out of 85 marks. On the basis of verification of documents, he has obtained 2.18 marks, as such, he has obtained 67.18 marks, out of 100 marks, and secured first position. He was selected for the post of J.E. (Civil) and joined in the Head Office of Himachal Pradesh State Electricity Board, Kumar House, Shimla. 14. During investigation, original OMR sheet No.826007369 was sent to SFSL, Junga and report was received on 21.11.2023. As per the report, tampering was found in OMR sheet, in post code-826, belonging to applicant-Divyanshu Gautam. As per the report of SFSL, in total 72 questions, on the OMR sheet, different ink was found to have been used and the circled option of 72 question was erased and different option was circled.There were total 170 questions, which were to be attempted within two hours and according to the status report, it was not possible for attempting 72 questions by erasing the circled option. 15. It is the further case of the police that accused Uma Rani @ Uma Azad, the then Senior Assistant, H.P. Staff Selection Commission, is the main accused, along with other 16 accused. The CDRs of the mobile phone of Smt. Uma Rani was analyzed regarding mobile number 82787-34594 and it was found that father of applicant- Divyanshu Gautam from his mobile phone No.94186-00786, had made 279 calls from 25.04.2021 to December 2022. The CDRs of the mobile phone of Smt. Uma Rani was analyzed regarding mobile number 82787-34594 and it was found that father of applicant- Divyanshu Gautam from his mobile phone No.94186-00786, had made 279 calls from 25.04.2021 to December 2022. Father of the applicant has started calling Uma Azad only after 11.4.2021 i.e. the day, when the screening test was held. Uma Azad was member of the screening committee, regarding screening/evaluation of OMR sheet. 16. It is the further case of the police that although, the applicant had joined the investigation, but he is not giving the satisfactory answers with regard to the tampering of the OMR sheet. It is the further case of the police that during investigation applicant-Divyanshu Gautam has disclosed that he himself has erased the encircled answers with the help of blade and eraser and thereafter, again circled the same. 17. According to the status report, answers of the re-attempted questions were found to be correct, whereas, some of the erased answers were found to be incorrect and in case, reattempted questions were not counted, then Divyanshu Gautam (applicant) could not have passed the screening test. 18. On the basis of the above facts, a prayer has been made that the applicant is not disclosing the true facts, as such, his custodial interrogation is required. 19. Considering the allegations, which have been levelled against the applicant, the material question, which arises for determination before this Court is whether the interim protection granted to the applicant, vide order dated 11.03.2025, is liable to be withdrawn or the same is liable to be confirmed. 20. Admittedly, the applicant appeared in the examination and secured first position. Thereafter, appointment was given to him. In the status report nothing has been pointed out as for what purpose, the custodial interrogation of the applicant is required by the Police. 21. A futile attempt has been made by the learned Additional Advocate General to point out the report of FSL Junga, which falls within the definition of corroborative piece of evidence, to justify the prayer, so made in the application, with regard to the custodial interrogation. 22. 21. A futile attempt has been made by the learned Additional Advocate General to point out the report of FSL Junga, which falls within the definition of corroborative piece of evidence, to justify the prayer, so made in the application, with regard to the custodial interrogation. 22. At the most, from the said report, inference can be drawn that the circled options were erased regarding 72 questions and the same were reattempted, which, according to the prosecution, was not possible within a period of two hours, as, there were 170 questions to attempt. 23. So far as the alleged telephonic calls of the father of the applicant with accused-Uma Rani @ Uma Azad from 25.4.2021 to December 2022, on 279 occasions, is concerned, the same is inconsequential, at this stage. 24. The applicant has joined the investigation, as and when, directed by the I.O. to do so and it is not the case of the police that in case, the interim order is made absolute, he may not be available for the trial. 25. Even otherwise, in view of the decision of the Hon’ble Supreme Court in Gurbaksh Singh Sibbia & Others vs. State of Punjab, (1980) 2 SCC 565 , a person, having the protection under Section 438 Cr.PC (482 of the BNS), is deemed to have surrendered himself, if such a discovery is to be made. Relevant paragraph 43 of the judgment, is reproduced, as under:- During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2)(i), (ii) and (iii). The Court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the F.I.R. in respect of matters covered by the order. In certain exceptional cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the F.I.R. in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The Court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code. 26. In the status report, the prayer has been opposed mainly on the ground that accused is not giving the true information with regard to the alleged erased circled options in MCQ, which according to the police were found to be correct. 27. Another objection, which has been taken in the status report, is that in the month of February, 2021, in the screening test for the post Code-845, the applicant had obtained only 28.5 marks and in the examination, after two months, in the month of April, 2021, he has obtained 65 marks out of 85 marks and stood first. 28. The alleged refusal/non-cooperation of the applicant, could not be the ground for dismissal of the application, as no one can be compelled to be the witness against himself, as the same is violative of Article 20(3) of the Constitution of India. It is not the case of the police that some recovery is to be effected from the applicant or at his instance. 29. The police is not able to make out a case for custodial interrogation. Even otherwise, the allegations, which have been levelled against the applicant, in the complaint, will be proved, during the trial. 30. At the time of deciding the bail application, detailed discussions, about the merit of the present case, should be avoided, as, the same may cause prejudice to the case of the prosecution or the case of the accused (applicant). 31. 30. At the time of deciding the bail application, detailed discussions, about the merit of the present case, should be avoided, as, the same may cause prejudice to the case of the prosecution or the case of the accused (applicant). 31. Considering the totality of circumstances, this Court is of the view that the interim protection, granted to the applicant, is required to be made absolute, as, no useful purpose would be served by dismissing the present application, which would result into the judicial custody of the applicant. 32. Considering all these facts, the interim order dated 11.03.2025, passed by this Court, is hereby made absolute. Therefore, it is ordered that the applicant be released on bail, in the event of his arrest, in case FIR No.04 of 2025, dated 07.03.2025, registered with Police Station SV & ACB, Hamirpur, District Hamirpur, H.P. under Sections 420, 467, 468, 471, 120-B of the IPC and Sections 13(1)(a) and 13(2), of the PC Act, on his furnishing personal bond, in the sum of 50,000/- with one surety of the like amount, to the satisfaction of the Investigating Officer. This order, however, shall be subject to the following conditions : a) That the applicant will join the investigation of the case, as and when, called for, by the Investigating Officer, in accordance with law; b) That the applicant will not leave India, without prior permission of the Court; c) That the applicant will 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/her from disclosing such facts to the Investigating Officer or the Court; and d) That the applicant shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so seek exemption from appearance by filing appropriate application. 33. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application. 34. The applicant is directed to move regular bail application, when charge sheet will be filed in the Competent Court of Law. 35. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.