Shobhan Singh Khanka
Vs. The State of Jharkhand
[Criminal Appeal No.
592 of 2012 arising out of S.L.P. (CRL.) No. 7644 of 2011]
J U D G M E N T
P. Sathasivam,J.
1.
Leave
granted.
2.
This
appeal is directed against the judgment and order dated21.09.2011 passed by the
High Court of Jharkhand at Ranchi in A.B.A. No.3230 of 2011 whereby the High Court
rejected the application for anticipatory bail filed by the appellant herein.
3.
Brief
facts:
a. The appellant herein,
who acted as one of the Expert in the Interview Board to the Jharkhand Public
Service Commission (in short "the JPSC"),filed a petition before the Special
Judge (Vigilance), for anticipatory bail under Section 438 of the Code of
Criminal Procedure, 1973 (in short" the Code") in connection with
Special Case No. 23 of 2010 arising out of Vigilance PS No. 23 of 2010 under
Sections 420, 423, 424, 467, 468, 469,471, 477A, 120-B, 109 and 201 of the
Indian Penal Code, 1908 (in short "the IPC") and Section 13(2) read
with Section 13(1) (c) (d) of the Prevention of Corruption Act, 1988.
b. According to the appellant,
he was intimated that he had been nominated as Expert No1 in the Interview
Board for holding interview from28.01.2008 to 01.02.2008. He was selected by the
Members of the Expert Committee including the Chairman of the JPSC.
c. The allegations
against the appellant, Chairman and other Members of the JPSC are that they
provided highest marks to the candidates whom they desire to be selected or
appointed by giving undue favour. The appellant is also responsible for conspiracy
with the Chairman, Members of the JPSC and the candidates who were given
highest marks by the Interview Board. It is also alleged that the appellant is responsible
for cutting, manipulation, interpolation in the marks sheet of the Interview Board
in order to provide benefit to the candidates for selection and appointment.
d. The prosecution case
in a nutshell is that an enquiry was conducted by the vigilance department
regarding the irregularity committed by the Chairman, Members and officers of
the JPSC in conducting Second JPSC Civil Services Examination pursuant to advertisement
No. 7 of 2005 dated12.11.2005. It is alleged by the prosecution that the
examination was not held in accordance with the guidelines. The Members either
have not given declaration regarding their relation appearing in the
examination and those who have given declaration have not provided the required
details. The further allegation of the prosecution is that there has been manipulation
in the numbers awarded to the students.
The prosecution
examined 22 copies and it has been alleged that they have found manipulation in
the answer sheets. It is the further case of the prosecution that there has been
large-scale bungling, manipulation, tampering of marks, irregularity in the appointment
of Examiners and Members of the Interview Board and the Chairman in connivance
with the Members and also in conspiracy with the successful candidates for
securing monetary gains to the officials of JPSC in utter disregard to the rules
and by practicing corrupt method recommendations for appointment of various persons
were made to the Government. Accordingly, a First Information Report (in short "FIR")
was lodged against several persons including the appellant.
e. By order dated
01.08.2011, the Special Judge (Vigilance) Ranchi, on consideration of the materials
refused to enlarge the appellant on anticipatory bail and rejected his petition.
Against the order of the Special Judge, the appellant preferred A.B.A. No. 3230
of 2001 before the High Court of Jharkhand at Ranchi. By impugned order dated
21.09.2011, the High Court confirmed the order of the Special Judge and dismissed
his petition for anticipatory bail.
1.
2.
3.
4.
Heard
Mr. Uday U. Lalit, learned senior counsel for the appellant and Mr. Sunil Kumar,
learned senior counsel for the respondent-State ofJharkhand.
5.
After
taking us through all the materials including the FIR and the allegations
pertaining to the present appellant, Mr. Lalit, learned senior counsel
submitted that in the FIR except for stating that the appellant was one of the
Expert, there is nothing which can even remotely connect the appellant with any
offence much less the offences alleged therein. He also submitted that the appellant
who hails from District Pithoragarh, Uttarakhand, presently posted at Faridabad,
Haryana has no relatives, friends or kinsmen in the State of Jharkhand and,
therefore, had no reason or motive to favour anybody and in that event be a
part of any conspiracy to commit the alleged crime. He further pointed out the role
of the appellant as Expert Member was only to award marks to each candidate on a
separate sheet and had nothing to do beyond it. He also pointed out that the
observation of the High Court in the impugned order rejecting his anticipatory
bail application on the ground that the appellant stands on a similar footing
as that of other accused is factually incorrect inasmuch as the appellant
cannot be equated with the case of other Experts who belong to the State of
Jharkhand and are alleged to be related or known to candidates and, therefore,
had no reason or motive to commit the alleged crime. On the other hand, learned
counsel for the State submitted that considering the serious nature of the crime
and of the fact that the appellant's initial selection as expert is itself
contrary to the rules and several manipulations have been done by all the persons
concerned in the selection panel, it is not a fit case in which the
anticipatory bail is to be granted.
6.
We
have carefully perused the relevant materials and considered the rival
contentions.
7.
Inasmuch
as we are concerned about the eligibility or otherwise relating to grant of
anticipatory bail, there is no need to go into all the factual details and
arrive a finding one way or the other which will affect the ultimate trial of
the case. We have already referred to the offences alleged in the FIR. It is
settled law that personal liberty is a precious fundamental right. With this
background, we have to see that whether a case has been made out for grant of
anticipatory bail.
8.
It
is not in dispute that he is not a regular Member of the JPSC. Admittedly, he
is in Central Government service and he was nominated as Expert No.1 by the
Board. Thought it is pointed out that his nomination itself is bad, that is not
a relevant issue at this moment. Mr. Lalit, learned senior counsel for the
appellant pointed out his higher academic qualifications. All those details are
available in Annexure-P1 which shows that the appellant possesses
qualifications of M.Com., (Gold Medalist) and holder of 5 Ph.Ds. He is a
Professor and Coordinator in Fellow Programme and Management in National
Institute of Financial Management of the Central Government and he has an experience
of 16 years as Professor since 21.10.1994. He has 13 years administrative experience
as Head of the Department of Business Administration and 13 years experience as
Dean in the School of Management Studies. The appellant has specialization in Human
Resources Management, Organisational behaviour and Entrepreneurship Development
and besides that, he has experience on International Exposure of visiting
Professor in other foreign countries. It is also pointed out that the appellant
has been a regular expert in the Selection Committees of UGC, AICTE, ICSSR and other
Universities. He has to his credit the authorship of numerous
Research/Reference Books and Textbooks. Recently on26.05.2011, the appellant
was awarded "Shiksha Rattan Puraskar" by H.E. the Governor of
Arunachal Pradesh. It is also brought to our notice that in July, 2011, Hon'ble
the President of India based on the academic qualification of the appellant
nominated him as her nominee for recruitment of Assistant/Associate Professors
in the Faculty of Commerce and Management in the Indira Gandhi National Tribal University,
Amar Kantak, Madhya Pradesh. The above details show that the appellant has excellent
academiccareer.
9.
In
the FIR, the appellant has been named as accused No.7. Though it is pointed out
that the appellant has given highest marks to the candidates who were given
only 10 marks by the Chairman of the Interview Board, it is not in dispute that
he is not a Member of the JPSC Board nor belongs to Jharkhand State. As stated
earlier, he was selected as specialized member for a short period only. Mr.
Lalit has also taken us through the chart showing marks given by experts
including the present appellant - ExpertNo.1, Expert No.2 and the Chairman Shanti
Devi. Interestingly, the Chairman has allotted 10 marks to each of the candidate
irrespective of his/her performance. We are not here to assess and give a finding
whether the marks awarded by the appellant (Expert No.1) is excessive or unreasonable.
All those things have to be analyzed only at the time of trial by way of
evidence.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Though
the High Court has concluded that on the ground of parity and on the similar footing
that the other co-accused declined to grant anticipatory bail, we are of the
view that inasmuch as all other Members of the Board including the Chairman
belong to Jharkhand and some of their relatives participated in the selection
and considering the fact that the present appellant has no connection with the JPSC
and hails from a different State, namely, Uttarakhand, the said observation/conclusion
is not acceptable.
11.
The
perusal of the FIR also shows that the appellant was not acquainted with or
related to any of the candidates interviewed by the panel of which he was a Member.
In view of the assertion that the appellant does not belong to the State of
Jharkhand and has no relatives, friends or kinsmen in the State of Jharkhand,
there is no prima facie case to include him in the alleged conspiracy. Considering
his academic qualifications and experience and taking note of his claim that of
an impeccable career as academician and of the fact that he has no interest in the
State of Jharkhand, we hold that the appellant has made out a case for anticipatory
bail under Section 438 of the Code.
12.
While
considering the claim of pre-arrest bail, the following factors have to be
considered:
i.
the
nature and gravity of the accusation;
ii.
the
antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable
offence;
iii.
the
possibility of the applicant to flee from justice; and
iv.
where
the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested.
Considering the
limited allegation in the FIR and other details, his academic qualifications
including the fact that he does not belong to the State of Jharkhand and has no
relatives and is not a Member of the JPSC, acted as Expert No.1 only for a
short period, the appellant has made out a case for anticipatory bail. Even if
the prosecution has any apprehension, sub-section (2) of Section 438 enables
the court concerned to impose such conditions/directions as it may thinks fit.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Under
these circumstances, the order passed by the Special Judge as well as the High
Court dismissing his petition for anticipatory bail are set aside. Accordingly,
we direct that in the event of arrest, the appellant shall be released on bail
in connection with PS case No. 23 of2010 corresponding to Special Case No. 23
of 2010, Vigilance PS, Ranchi, Jharkhand subject to the following conditions:-
i.
the
appellant shall make himself available for interrogation as and when required;
ii.
the
appellant 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.
the
appellant shall not leave India without the previous permission of the special
court.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
It
is made clear that the conclusion reached by us is limited to the disposal of
the application for anticipatory bail and the Special Judge is free to decide
the charges in the ultimate trial in accordance with law uninfluenced by any of
the observation/conclusion made herein.
15.
The
appeal is allowed on the above terms.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(J. CHELAMESWAR)
NEW
DELHI;
MARCH
30, 2012
Back
