IN THE HIGH COURT OF JAMMU & KASHMIR AT SRINAGAR Bail Application No.39 of 2014 Bail Application No. 33of 2014 [ENTITY] Petitioners [ENTITY] Respondents !Mr. [ENTITY], Advocate ^M/S: [ENTITY], Senior Advocate Mr. [ENTITY], Advocate Honble Mr. Justice [ENTITY], Judge Honble Mr. Justice [ENTITY], Judge Date: 23/05/2014 : J U D G M E N T :
1. Petitioners seeks bail in anticipation of arrest in connection with case registered as FIR No.24/2013 P/S Crime Branch for commission of offences punishable under [SECTION]/[SECTION] of [ACT] [ACT]. The investigation of the case is monitored by this Court in Public Interest Litigation titled Court on its own motion Vs. [ENTITY] & Ors (PIL No.15/2013). It is in view of the same, the instant application has been listed before this bench.
2. After investigation, charge sheet(challan) against various accused persons has been presented. Now a supplementary charge sheet(challan) has also been presented in which allegations against the accused No.11 (petitioner in [CASE NUMBER]) and his son arrayed as accused No.10 are as under:
Accused no.11 had remained as Range Officer in Kulgam in the year 2010-2012 in South Jehlum Project for plantation. During this period Bhat Nursery Kulgam, used to supply plants/saplings to this forest project which lead to the intimacy between the accused no.3, and him. Since accused no.10, the son of accused no.11 was a potential candidate for [CASE NUMBER], accused no.11 entered into criminal conspiracy with accused no.3 for facilitating the admission of the accused no.10. However, with accused no.1 making his intention clear to sell the question papers to accused no.2 (Now approver) and in turn to accused no.3, who offered it further to accused no.11 for his son accused no.10.
This criminal conspiracy came to actual execution on 22-6-2012, when accused no.3 received the question papers from accused no.2 and while dispatching copies to different candidates, [ENTITY], the accused no.3, made a phone call to [ENTITY], the accused no.11, at 2225 hrs to night with the good news of the access of question papers. In this particular case, the previous trust and dealing between the two in Kulgam though Bhat Nursery fructified further when [ENTITY] the main broker, accused no.3, went to the house of accused no.11 at Gulbarg Colony Hyderpora along with his nephew [ENTITY] for handing over the question papers to accused no.11 for his son, the accused no.10. The intimacy between the accused was so innate that both accused no.3 and his nephew not only dined in the house of accused no.11 but also rested for the residual night there. Similarly on the second intervening night of 23/24 for handing over the biology paper, accused no.3, intimated telephonically to accused no.11 about the question paper at 2021 hours and access of paper to accused no.11 was made accordingly. Since accused no.3 did not cooperate with the investigation and accused no.11 also refused to divulge the amount of money settled between the two for purchase of question papers, as such the total money having changed hands in this case could not be ascertained as of now.
Acting in such manner the accused no.10 and 11, joined the criminal conspiracy with other accused no.3, by resorting to fraud, cheating and destruction of evidence thereof. And accused no.11 in league with his son accused no.10, by doing so, conferred undue and illegal selection benefit upon the latter, by illegally obtaining question papers of [CASE NUMBER] on both days of examination in advance. It was in furtherance of criminal conspiracy with other accused no.3, that accused no.10 fraudulently emerged 10th ranker by usurping the merit position of the otherwise genuinely qualified candidates. Pertinently this candidate had also appeared in [CASE NUMBER] where he got 5100 rank while he topped the [CASE NUMBER] by fraudulent means.
3. Allegations against the accused No.14 (petitioner in bail application No. 33/2014) and his son arrayed as accused No.13 are as under:
Regarding the liability of accused no.13 and 14, a unique technique of telephonic conveyance has been adopted. Sh. [ENTITY] accused no.5 was in friendship with another person namely [ENTITY] S/o [ENTITY] R/O Jigarpora Kupwara who in turn introduced accused no.14 to accused no.5. The making of question papers in advance was known to the accused duo by M. Amin Ganaiee. While awaiting for question papers to arrive, the accused no.5 called accused no.14 to [ENTITY] through the said [ENTITY]. The accused no.14 along with son accused no.13, came rushing from Jammu to [ENTITY] during the day of 22 June 2012 in a car and a deal was struck in case the question paper is provided to them in advance, the sale value of the question paper will be Rs.22.00 lacs which was agreed to by accused no.5 and accused no.14 in presence of his son the accused no.13, conversation whereof was also witnesses by [ENTITY]. However, having to appear in the exams in Jammu next day, the father son duo left back for Jammu the same day. After obtaining the question papers on 22/23 and 23/24- June, 2012, the accused no.5 got in telephonic contact with accused no.14, [ENTITY] S/O [ENTITY] R/O [ENTITY]. Due to impossibility of sending the question papers to Jammu by any other means, [ENTITY], the accused no.5, read over the whole text and answers of question papers both in the intervening nights of 22-23rd and 23rd -24th of June 2012, [ENTITY] on the cell phone of his father. The call records in this regard detail out continuous conversation between the two for around 2 hours and 48 minutes in the night intervening 22/23rd-6/2012 for Physics and Chemistry papers and about 55 minutes on the following intervening night of 23/24-6-2012 for Biology paper. The statement of [ENTITY] S/O [ENTITY] R/O Jigerpora Kupwara was recorded under [SECTION] [ACT], before a Judicial Magistrate in [ENTITY] which corroborates the facts detailed above. The settlement amount of Rs.22.00 lacs was paid by [ENTITY] in cash to [ENTITY] the accused no.5 who in turn paid the same to [ENTITY] the accused no.4.
Acting in such manner the accused no.14 in league with accused no.13, joined the criminal conspiracy with other accused no.5, by resorting to fraud, cheating and destruction of evidence thereof and conferred undue selection benefit upon his son the accused no.13, by illegally accessing question papers of [CASE NUMBER] through tele-con on both days of examination in lieu of Rs.22.00 lacs in furtherance of the criminal conspiracy with other accused no.5, he further fraudulently facilitated the emergence of his son as 15th ranker by usurping the merit position of the otherwise genuinely qualified candidates. Pertinently, the accused [ENTITY], had secured only 76 points in [CASE NUMBER] by figuring at the 9259 rank while in the selection list of 2012 he fraudulently obtained 15th rank.
4. The investigating officer, on investigation vis-`-vis petitioners, has concluded that the petitioners along with other accused, during investigation, are established to have committed offences punishable under [SECTION]/[SECTION] of [ACT] [ACT].
5. The Jammu & Kashmir Board of Professional Entrance Examinations (BOPEE)(hereinafter for short the Board) has been set under the [ACT] for conducting entrance examinations for admission to various under-graduate and postgraduate professional programmes in the State of Jammu and Kashmir. It has got functional autonomy so as to remain free from external interference and influence in respect of making selection of candidates for admission purposes. It has to organize entrance examinations/tests for MBBS, BDS, MD, MS, PG Diploma and other course with secrecy, efficiency, transparency and to ensure that the admissions are made strictly on the basis of merit.
6. Allegedly, the Chairperson of the Board (accused No.1), in the lust of making money, has crossed all the limits, as a result whereof secrecy, efficiency, transparency and image of the Board has been brought down in the estimation of society and to the disheartening of aspirant meritorious candidates. While preparing for such exams, the aspirant students burn their midnight oil with a firm belief and hope that their merit will work. The element of jeopardizing such right and hope normally is farfetched. The persons selected or appointed for holding of such key posts have always to be of impeccable integrity so as to ward off any tinkering with the confidence of the aspirants. If an aspirant fails to make the grade, he may have no remorse because after all it is a competition. The best meritorious among the meritorious gets admission but when the process of examination is tinkered, that is always heartening and the aspirant candidates, who spent more than 20 hours in studying so as to compete, feels crest fallen, resultant effect is that the society, as a whole, gets disillusioned and sense of uncertainty looms large.
7. When a person ventures and becomes part of a conspiracy so as to succeed in getting admission for MBBS etc. on the strength of money power, can such a person after hurting the societal interests and the sentiments of the aspirant candidates claim bail in anticipation of arrest.
8. It is no more res integra that to grant or refuse bail is exclusive discretion of the Court but exercise of such discretion is not untrammelled or unfettered. So as to lose sight of balancing the interests of the accused and of the society. The liberty guaranteed under [SECTION] of the [ACT] has to be kept in mind but at the same time exception to such guarantee is also to be taken care of. If being at large of a person is to damage the public faith and confidence and has an impact of effecting investigation or the trial, then that situation is also equally to be taken care of.
9. The allegations set out in the supplementary charge sheet, as quoted above, would reveal that the petitioners-accused have purchased the question papers. By illegally obtaining the question papers of [CASE NUMBER], the sons of the petitioners have succeeded fraudulently to rank at No.10 and No.13 respectively in the merit list to the exclusion of the genuine meritorious candidates. It is quite disheartening to notice that allegedly fathers of the students have stooped low so as to purchase papers and ensure position of their sons in the merit list of the students for admission to MBBS course.
10. Learned counsel for the petitioners emphatically projected that the petitioners have not committed any offence, they are totally innocent, they were not required to do what is alleged because their sons, arrayed as accused Nos.10 and 13, have all along been a meritorious which position is supported by their academic records as they have passed their secondary examination(10+2) with distinction but such a submission is categorically repelled by the fact that son of the petitioner, [ENTITY] had also appeared in [CASE NUMBER] where he got 5100 rank whereas in [CASE NUMBER] by fraudulent means he is among the first ten toppers. Similarly, son of the petitioner, [ENTITY] also had appeared in [CASE NUMBER] where he got 9259 rank whereas in the select list of [CASE NUMBER] is at Sr. No. 15.
11. Learned counsel for the petitioners while relying on the judgment reported in [PRECEDENT], tried to project that the sons of the petitioners had a brilliant academic career, therefore, they could not be treated at par with other co-accused, so in their case bail cannot be refused on ground of parity and similarity with co-accused whose applications have been rejected.
12. In the reported judgment, facts were altogether different. There was an allegation that the Chairman and the Members of Jharkhand Public Service Commission had awarded highest marks to the candidates whom they desired to be selected/appointed. The allegation against the appellant therein was that he was 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. In this connection, para 20 is relevant to be quoted:
20.Though the High Court has concluded that on the ground of parity and on the similar footing that the other co-accused were declined grant of 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. In view of the stated facts, this judgment is of no help to the petitioners.
13. Learned counsel would next contend that now the investigation has been concluded, charge sheet has been presented, there is no requirement of arrest of the petitioners. In support of this submission, learned counsel, while relying on the judgment reported in [CASE NUMBER], submitted that even during trial physical presence is not necessary. The presence of the pleader is deemed to be presence of the accused, therefore, there is no requirement of taking petitioners into custody.
In the reported judgment the point was as to whether evidence could be recorded in absence of the accused. Herein in the present case the petitioners have evaded arrest which have disabled the investigating agency in ascertaining the actual amount which had changed hands vis-`-vis petitioner, [ENTITY] for illegally obtaining question papers.
14. Learned counsel would submit that the petitioner, [ENTITY] is a responsible officer, is presently posted as Incharge Divisional Forest Officer in the Government of Jammu & Kashmir, has bright service record, he is honest and dedicated and is attending his duties which shows that he is not required to be taken into custody otherwise investigating agency would have taken him into custody.
Such contention is repelled as, in the objections, it has been specifically pleaded that the petitioner along with his son [ENTITY] has been declared as proclaimed offender by the trial court. The investigation regarding other accused persons is still in progress. If bail is granted to the petitioner, same will cause prejudice to the prosecution case. When petitioner is declared as proclaimed offender, how can he claim concession of bail, that too in anticipation of arrest.
15. Learned counsel would submit that the petitioner, [ENTITY] is a responsible officer, is presently posted as Wildlife Warden in the Government of Jammu & Kashmir, has bright service record, he is honest and dedicated and is attending his duties which shows that he is not required to be taken into custody otherwise investigating agency would have taken him into custody.
Such contention is repelled as, in terms of communication dated 25.3.2014, addressed by Chief Conservator of Forests(Wildlife), Jammu Region to the Investigating Officer, Crime Branch, Kashmir and communication dated 29.03.2014, addressed by Conservator of Forests(Wildlife) to the Superintendant of Police, Crime Branch, Kashmir, it has been communicated that the petitioner had applied for earned leave with effect from 05.03.2014 to 25.03.2014 which has been turned down by the Department. The officer(petitioner) has not joined back his duties after availing casual leave sanctioned in his favour with effect from 27.02.2014 to 04.03.2014 and since then his whereabouts are not known to this office. Further, it has been specifically alleged that the petitioner along with his son [ENTITY] has been declared as proclaimed offender by the trial court. The investigation regarding other accused persons is still in progress. If bail is granted to the petitioner, same will cause prejudice to the prosecution case. When petitioner is declared as proclaimed offender, how can he claim concession of bail, that too in anticipation of arrest.
16. Next learned counsel for the petitioners would contend that originally names of the petitioners did not figure in the charge sheet, which means petitioners have been implicated falsely. There is no evidence collected by the investigating agency against the petitioners. In this context, learned counsel relied on the judgment rendered by the Honble Apex Court reported in [CASE NUMBER]. The submission is without substance. The fraudulent admission process based on illegally obtained question papers got exposed and in the process of investigation, various names further surfaced who had indulged in such practice, therefore, it cannot be said that there has been any move on the basis of venom to implicate the petitioners. The judgment relied upon by learned counsel has been rendered in the criminal appeal, that means after the judgment was rendered by the trial court and while appreciating evidence in that case, position had been taken into consideration. I am afraid if such a yardstick can be applied at this stage because such a submission of the learned counsel is open to be looked into during trial.
17. Next it was projected by learned counsel for the petitioners that since charge sheet(challan) has been presented, therefore, petitioners are entitled to bail in anticipation of arrest. In support of this submission, relied on the judgment reported in [PRECEDENT].
18. In the reported judgment application for anticipatory bail was rejected only on the ground that the charge sheet(challan) has been presented without considering case of the petitioners therein. In the said judgment it has been observed that the complainant was a property dealer. The accused and the complainant had commercial transactions. The criminal complaint had been filed in order to pressurize the appellant therein so as to stop him from pursuing the civil litigation pending between the parties. On facts, position of the two cases is different. Every case has its own factual background. In the case in hand, as stated above, position is altogether different, therefore, judgment relied upon is not applicable to the present case.
19. Learned counsel would next contend that basically a scam known as BOPEE Scam got exposed and has been publicized. On the basis of public sentiments and unacceptable misconduct as highlighted in the case of accused No.1, petitioners cannot be deprived of grant of concession. In support of this contention, relied on the judgment reported in [PRECEDENT]. Para 21 of the said judgment is relevant to be quoted:
In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
How learned counsel wants to take benefit of the said judgment when the petitioners stated to have been declared as a proclaimed offender, so have not been available to the investigating agency, how can there be prospect of their availability during trial. Furthermore, the factual background, the gravity of the offence, conspiracy at various levels, then allegedly being part of the conspiracy which has shaken the confidence of the society in the system, do not suggest any mitigating circumstances so as to grant bail in anticipation of arrest. Declining grant of bail in anticipation of arrest is never meant to see that the accused are taught lesson but the object is to see that he surrenders to the rule of law. In such circumstances to grant bail in anticipation of arrest will not only amount to further shake the confidence of the society in the system but would amount to granting of premium to the accused-petitioners in avoiding cooperation with the investigating agency or to the court. It shall be quite relevant to quote following portion from para 1 and para 89 of the judgment rendered in [PRECEDENT]:
Society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.
89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case.
In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.
20. Learned counsel for the petitioners next contended that the bail is rule, refusal is the exception. In the facts and circumstances of the instant case, petitioners deserves bail as they are innocent. In support of this contention, relied on the judgment rendered by the Honble Apex Court in [PRECEDENT].
It is true that the personal liberty guaranteed under [SECTION] of the [ACT] is of great importance. Then incarceration shall not be by way of punishment. Incarceration is permissible only after accused is convicted and sentenced but grant of bail to safeguard personal liberty is controlled by reasonable exception. Petitioners have not cooperated with the investigating agency, have chosen to remain as an absconders and allegedly they have illegally obtaining question papers so as to see their sons are selected for pursuing MBBS course, that too, to the dismay, detriment of the interests of the aspiring candidates and faith of the public in the system. Same has also adversely affected societal interests. When the petitioners allegedly have continued to be absconders ever since investigation has been initiated, how they can be expected to help the smooth trial. When the petitioners are alleged to have purchased questions papers, cant they afford to influence the witnesses. On such basis, there can be likelihood of their interference with the witnesses. The alleged activities of the petitioners would suggest that they are likely to pollute the process of justice. It shall be quite relevant to quote para 9 of the judgment supra:
Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the, bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.
21. It is also highlighted by the learned counsel that there has been delay in examining the witnesses by the investigating officer, therefore, much reliance cannot be placed on their statements, which in turn would entitle the petitioners to the grant of bail. In support of this submission, relied on the judgment reported in [CASE NUMBER].
The reported judgment has been rendered in the criminal appeal. The evidence, as was recorded by the trial court, has been appreciated. The said judgment is not of any help to the petitioner because in the case in hand investigation regarding other accused persons is still in progress. What could be the reasons for recording statements of witnesses at different intervals is open to be clarified by the IO concerned during trial. Apparently, in a clandestine manner, with all element of mischief, allegedly a serious fraud has been committed. Normally investigating agency required time so as to reach to the bottom of the matter.
22. The commission of the offence is serious, heinous and exposure of the fraud has rattled the confidence not only of the aspiring candidates in the functioning of the Board but also of the general public who have reposed trust in such institutions.
23. Prima facie, we are not persuaded on the basis of law, circumstances and merits of the case to grant applications. The observations made hereinabove, however, shall not, in any manner, be taken as an expression of opinion neither the trial court, while conducting the trial, shall get influenced by such observations.
24. Both the applications are accordingly dismissed.
([ENTITY]) ([ENTITY]) Judge Judge [ENTITY] 23.05.2014
Pronounced today on 23.05.2014 in terms of [SECTION] of the [ACT].
([ENTITY]) Judge [ENTITY] 23.05.2014