IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO Nos. 127, 128, 129 and 130 of 2011 Judgment reserved on : 08.08.2011. Date of decision: 16.08.2011. 1. Cr.MMO No.127 of 2011 Court on its own motion ….. Petitioner. Versus Shivender Batish and another ...Respondents. 2. Cr.MMO No.128 of 2011 Court on its own motion …. Petitioner. Versus Dinesh Kapoor and another ...Respondents. 3. Cr.MMO No.129 of 2011 Court on its own motion …. Petitioner. Versus Duni Chand Yadav and another ..Respondents. 4. Cr.MMO No.130 of 2011 Court on its own motion …. Petitioner. Versus Kuldeep Rao and another ...Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? yes For the Petitioner(s) : Court on its own motion. For the Respondents : Mr. M.S.Chandel, Senior Advocate, with Mr. N.S.Chandel, Advocate, for respondent No.1 (in Cr.MMO Nos. 127 and 130 of 2011. _____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Mr. Ajay Kochhar, Advocate for respondent No.1 (In Cr.MMO No. 128 of 2011). Ms. Shilpa Sood, Advocate for respondent No.1 (in Cr.MMO No. 129 of 2011). : Mr. R.K.Bawa, Advocate General with Ms. Ruma Kaushik, Addl. A.G., Ms. Subh Mahajan, Dy. A.G. and Mr. J.S.Rana, Asstt. A.G. for respondent No.2 ( in all the petitions) ___________________________________________________________ Kuldip Singh, Judge This judgment shall dispose of Cr.MMO Nos. 127, 128, 129 and 130 of 2011 which have arisen on account of suo motu action taken by this Court against the orders dated 11.7.2011, 13.7.2011 and 18.7.2011 passed by Sessions Judge (Special Judge), Shimla on the bail applications No.78-S/22 of 2011, 83-S/22 of 2011, 84-S/22 of 2011 and 88-S/22 of 2011 under Section 439 Cr.P.C. releasing Shivender Batish, Dinesh Kapoor, Duni Chand Yadav and Kuldeep Rao on bail in FIR No. 60 of 2011 registered on 24.5.2011 at Police Station East, Shimla under Sections 420, 467, 468, 471, 472 and 120-B IPC. 2. The facts, in brief, are that a secret information was received at the Police Station on 24.4.2011 that a forged copy of judgment dated 18.12.2010 of the High Court has been prepared in Combined Pre-Medical Test (CPMT) case arising out of FIR No. 140 of 2006 registered on 28.7.2006 at Police Station, Boileauganj. In the forged copy of judgment, there is mention of Cr.MMO No. 179 of 2010 titled as Ritika Kapoor and others vs. State of H.P. and others. This copy of judgment was under consideration in the Secretariat for giving 3 benefit of service to accused Kuldeep Rao, Executive Engineer, HPPWD. On receipt of this information, Cr.MMO No. 179 of 2010 was checked on the web site of the High Court, the message displayed was ‘either judgment not uploaded or case does not exist’. 3. The case appeared to be a preparation of forged document for obtaining undue benefit, hence FIR No. 60 dated 24.5.2011 was registered under Sections 420, 467, 468 and 471 IPC. The status report of the case has been filed in Cr.MMO No. 127 of 2011 and record perused. It has been stated that it has come during investigation that in the High Court Cr.MMO No. 179 of 2010 is registered in the name of Gian Chand Sood vs. Shivani whereas no Cr.MMO No. 179 of 2010 titled as Ritika and others vs. State of H.P. and others has been registered and decided by the High Court. 4. Kuldeep Rao and Haresh Sood were arrested on 24.5.2011. Haresh Sood during interrogation disclosed that in October/November, 2010 for quashing FIR in CPMT case, Kuldeep Rao, Shivender Batish and Dinesh Kapoor had talked with him in Hotel Holiday Home, Shimla, Duni Chand Yadav was also informed on telephone. All four accused were to pay ` 1,00,000/- to him. Kuldeep Rao during interrogation told that talk took place with Haresh Sood through Dinesh Kapoor. The power of attorneys were signed in Hotel Holiday Home, Shimla and the payment was made to Haresh Sood at that place. He further disclosed that Haresh Sood told in January that in the reserved judgment decision had come, Shivender Batish supplied him photocopy of the judgment which in turn he submitted to the Principal Secretary, HPPWD in the Secretariat. 4 5. Lap top of Shivender Batish was taken into possession on 27.5.2011. On 28.5.2011 Haresh Sood and Kuldeep Rao were released on bail. Lap top of Ankur Batish son of Shivender Batish was taken into possession. On 29.5.2011 Shivender Batish and Dinesh Kapoor disclosed that they handed over power of attorneys after signing to Haresh Sood in Hotel Holiday Home. Haresh Sood supplied them copies of judgment. Duni Chand Yadav on 1.6.2011 disclosed that he signed the power of attorney and paid `15,000/- to Haresh Sood through Dinesh Kapoor. On 2.6.2011 pen-drive of Shivender Batish was taken into possession. 6. Shivender Batish, Duni Chand Yadav and Dinesh Kapoor were arrested on 3.6.2011. They disclosed that they signed the power of attorneys in favour of the advocate. They also disclosed that copy of judgment was supplied to them in the meeting held on 16.5.2011 in Hotel Holiday Home. Duni Chand however, took the stand no copy of judgment was supplied to him. Haresh Sood disclosed that on the lap top of Shivender Batish in Hotel Holiday Home, Shimla in January/February, 2011, the judgment was corrected but this was contradicted by Shivender Batish. At one point even Dinesh Kapoor admitted that judgment was corrected but lateron he denied. 7. It has come in investigation that CPU was recovered from the house of Haresh Sood from Bhunter. CPU of Ashu brother-in-law of Haresh Sood was also taken into possession. Lap top and CPU of Kuldeep Rao were also taken into possession. Kuldeep Rao has disclosed that photocopy of the judgment was given by Haresh Sood to him but Haresh Sood has denied that he supplied photocopy of 5 judgment to Kuldeep Rao. The accused remained in contact with each other on mobile phones during this period. Kuldeep Rao, Dinesh Kapoor, Shivender Batish and Duni Chand Yadav and their daughters are accused in CPMT case. All accused in FIR No. 60 of 2011 in conspiracy with each other prepared the fake judgment for taking benefit of the judgment. 8. Kuldeep Rao during investigation disclosed that on 24/25.2.2011 Haresh Sood had given copy of judgment to him and he submitted copy of judgment in the Secretariat on 25.2.2011. The fake judgment was allegedly reserved on 13.12.2010 and decided on 18.12.2010 by the High Court. The copy of fake judgment was allegedly applied on 22.2.2011 and copy of fake judgment was allegedly delivered on 24.2.2011. 9. The High Court cancelled the bail of Haresh Sood and Kuldeep Rao on 29.6.2011 by taking suo motu action. Haresh Sood was arrested on 29.6.2011. He disclosed that copy of judgment was supplied to Duni Chand also. Kuldeep Rao was again arrested on 2.7.2011. Shivender Batish was released on bail on 11.7.2011, Duni Chand and Dinesh Kapoor were released on bail on 13.7.2011 and Kuldeep Rao was released on bail on 18.7.2011 by the Sessions Judge. The bail application of Haresh Sood was dismissed by the Sessions Judge, on 21.7.2011. 10. It is the case of the investigating agency that first of all Dinesh Kapoor had talked with Haresh Sood and thereafter on 27.10.2010 Dinesh Kapoor, Shivender Batish and Kuldeep Rao had meeting in Hotel Holiday Home, Shimla. Haresh Sood and other 6 accused have taken different stands. Haresh Sood has denied signing of power of attorneys whereas Dinesh Kapoor has taken the stand that power of attorneys were signed and some payment was also made to Haresh Sood. In all ` 3,70,000/- were paid to Haresh Sood in cash or by way of draft. But in the earlier investigation, payment of only ` 60,000/- surfaced. The accused are not disclosing the true facts. Shivender Batish handed over original copy of the judgment to police but Duni Chand has not handed over any copy to police whereas it has come in the investigation that copies of the fake judgment were supplied to all of them. 11. The red ink entry in the fake judgment found to be in the hand of Haresh Sood as per F.S.L. report but author of blue ink writing on the fake judgment has not been identified. The fake judgment has not been found to be prepared on lap top, CPU, pen-drive taken from the possession of the accused. The investigation is going on to find out where fake judgment was typed. The accused are not coming with truth and they are misleading so as to mis-direct the investigation. 12. The accused in FIR No. 60 of 2011 who are also accused in CPMT case appeared through their advocates on 29.12.2010, 14.3.2011 and 16.5.2011 in CPMT case in the Court. They were aware of the fake judgment but they did not disclose to the Court judgment dated 18.12.2010 where CPMT case was pending on the aforesaid dates. 13. Shivender Batish, Dinesh Kapoor, Duni Chand Yadav and Kuldeep Rao after releasing on bail and joining investigation have resiled from their earlier stand. The investigating agency in the total 7 facts and circumstances of the case has prayed for cancellation of bail granted to the accused in FIR No. 60 dated 24.5.2011. 14. I have heard the learned counsel for the parties. 15. Mr. M.S.Chandel, Senior Advocate, led the arguments. He has submitted that the bail applicants are innocent. They engaged Haresh Sood, Advocate, made payment to him and the copy of judgment in question was supplied to the bail applicants by Haresh Sood. The bail applicants acted bonafide but if the advocate has done something wrong then for the wrong act of advocate, the applicants cannot be blamed. The bail applicants remained in custody for sufficient long time. The investigating agency got full opportunity to interrogate the applicants. The Sessions Judge has released the applicants on bail. The investigating agency has miserably failed to establish any misconduct of the bail applicants for cancellation of the bail. He has prayed for affirmation of bail orders passed by the Sessions Judge releasing the bail applicants on bail. Mr. Chandel has relied The State through the Delhi Administration vs. Sanjay Gandhi AIR 1978 SC 961, Bhagirathsinh Judeja vs. State of Gujarat AIR 1984 SC 372, Dolat Ram and others vs. State of Haryana (1995) 1 SCC 349 and Siddharam Satlingappa Mhetre vs. State of Maharashtra and others AIR 2011 SC 312. 16. Mr. Ajay Kochhar, Advocate alongwith Ms. Shilpa Sood, Advocate adopted the arguments advanced by Mr. Chandel. It has been submitted that the considerations for grant of bail and for cancellation of bail once granted are not identical. Once the bail has been granted then only on post bail misconduct bail can be cancelled. 8 They have relied Ramcharan vs. State of M.P. (2004) 13 SCC 617, Nityanand Rai vs. State of Bihar and another (2005) 4 SCC 178, State of U.P. through CBI vs. Amarmani Tripathi (2005) 8 SCC 21, Manjit Prakash and others vs. Shobha Devi and another 2008 Cri. L.J. 3908, Hazari Lal Das vs. State of West Bengal and another (2009) 10 SCC 652 and Devender Kumar and another vs. State of Haryana and others (2010) 6 SCC 753. It has been submitted that this Court in Cr.MP(M) No. 454 of 2011 on 29.6.2011 permitted Dinesh Kapoor to apply to Sessions Court for bail. 17. On behalf of State, learned Advocate General has submitted that there are serious allegations against the accused for preparing fake judgment of this Court in connivance with each other. The bail applicants are accused in CPMT case arising out of FIR No. 140 of 2006. In fact Kuldeep Rao accused even submitted the copy of fake judgment in the Secretariat to get benefit of the fake judgment. The accused by preparing fake judgment of this Court made an attempt to erode the public confidence in the judicial system and thus tried to tear the faith of the people in the judicial system. He has submitted that the offence of the nature committed by the bail applicants under no circumstance cannot be taken lightly and to restore the confidence of the people in the system, the accused are to be dealt with sternly. The learned Advocate General heavily relied on the judgment dated 29.6.2011 in Cr.MMO Nos. 84 and 85 of 2011. He has submitted that in the teeth of the judgment dated 29.6.2011 the Sessions Judge has committed illegality in releasing the bail applicants on bail. He has submitted that it is not a case of mere cancellation of bail granted by the 9 Sessions Judge to the bail applicants but the case before this Court in view of suo motu action is for consideration of legality and propriety of the orders granting bail to the bail applicants. He has prayed for setting aside orders granting bail to the bail applicants by the Sessions Judge. 18. In order to appreciate the contentions on either side, it is relevant to notice how the bail applications have been considered by the Sessions Judge in each case. Cr.MMO No. 127 of 2011: The relevant portion of the order dated 11.7.2011 passed by the Sessions Judge in bail application No.78-S/22 of 2011 is as follows:- “4. The Hon’ble High Court vide judgment and order, dated 29.06.2011 had set-aside the order, dated 28.05.2011 passed by the lower Court. The accused persons Harish Sood and Kuldeep Rao had again been arrested by the police and stood committed to police custody for five days. They have now been committed to judicial custody. The accused person Shivender Batish stood interrogated by the police and he had denied use of his computer/laptop for preparation of the fake judgment. The record revealed that the accused person Harish Sood, Advocate had been paid more than Rs. 3 lacs. He had been contacted by the accused person Shivender Batish and others for quashing one criminal case registered against them. In his interrogation by the police, the accused person Harish Sood, Advocate had admitted receipt of more than Rs. 3 lacs from other accused persons. 5. The copy of the fake judgment in question stood applied copying agency stamp. The accused person Harish Sood had admitted having updated the columns of the stamp applied under Section 76 of the Indian Evidence Act to the copy of judgment. 10 6. The accused person Shivender Batish had been in custody for more than a month. Further investigation and subsequent trial is likely to take a long time. No useful purpose shall be served by prolonged detention of the accused person in custody. Bail ought not to be refused as a measure of punishment. There is no chance of abscondance of the accused person as he is permanent resident of Sanjauli, Shimla-6. After taking into consideration the facts and circumstances of the case, I find that the accused person is entitled to bail. The accused person Shivender Batish is ordered to be released on bail on his executing personal and surety bond in the sum of Rs.25,000/- each to the satisfaction of J.M.I.C.(1), Shimla, subject to the condition that the accused person shall join further investigation, as and when required and shall not tamper with the prosecution evidence. The bail application is accordingly allowed.” Cr.MMO No. 128 of 2011: The relevant portion of the order dated 13.7.2011 passed by the Sessions Judge in bail application No.83-S/22 of 2011 is as follows:- “4. The Hon’ble High Court vide judgment and order, dated 29.06.2011 had set-aside the order, dated 28.05.2011 passed by the lower Court. The accused persons Harish Sood and Kuldeep Rao had again been arrested by the police and stood committed to police custody for five days. They have now been committed to judicial custody. The accused person Dinesh Kapoor stood interrogated by the police. The record revealed that the accused person Harish Sood, Advocate had been paid more than Rs. 3 lacs. He had been contacted by the accused person Dinesh Kapoor and others for quashing one criminal case registered against them. In his interrogation by the police, the accused person Harish Sood, Advocate had admitted receipt of more than Rs. 3 lacs from other accused persons. 5. The copy of the fake judgment in question stood applied copying agency stamp. The accused person Harish Sood had 11 admitted having updated the columns of the stamp applied under Section 76 of the Indian Evidence Act to the copy of judgment. 6. The accused person Dinesh Kapoor had been in custody for more than a month. Further investigation and subsequent trial is likely to take a long time. No useful purpose shall be served by prolonged detention of the accused person in custody. Bail ought not to be refused as a measure of punishment. There is no chance of abscondance of the accused person as he is permanent resident of District Kullu. After taking into consideration the facts and circumstances of the case, I find that the accused person is entitled to bail. The accused person Dinesh Kapoor is ordered to be released on bail on his executing personal and surety bond in the sum of Rs.25,000/- each to the satisfaction of J.M.I.C.(1), Shimla, subject to the condition that the accused person shall join further investigation, as and when required and shall not tamper with the prosecution evidence. The bail application is accordingly allowed.” Cr.MMO No. 129 of 2011: The relevant portion of the order dated 13.7.2011 passed by the Sessions Judge in bail application No.84-S/22 of 2011 is as follows:- “4. The Hon’ble High Court vide judgment and order, dated 29.06.2011 had set-aside the order, dated 28.05.2011 passed by the lower Court. The accused persons Harish Sood and Kuldeep Rao had again been arrested by the police and stood committed to police custody for five days. They have now been committed to judicial custody. The accused person Duni Chand stood interrogated by the police. The record revealed that the accused person Harish Sood, Advocate had been paid more than Rs. 3 lacs. He had been contacted by the accused person Duni Chand and others for quashing one criminal case registered against them. In his interrogation by the police, the accused person Harish Sood, Advocate had admitted receipt of more than Rs. 3 lacs from other accused persons. 12 5. The copy of the fake judgment in question stood applied copying agency stamp. The accused person Harish Sood had admitted having updated the columns of the stamp applied under Section 76 of the Indian Evidence Act to the copy of judgment. 6. The accused person Duni Chand had been in custody for more than a month. Further investigation and subsequent trial is likely to take a long time. No useful purpose shall be served by prolonged detention of the accused person in custody. Bail ought not to be refused as a measure of punishment. There is no chance of abscondance of the accused person as he is permanent resident of District Mandi. After taking into consideration the facts and circumstances of the case, I find that the accused person is entitled to bail. The accused person Duni Chand is ordered to be released on bail on his executing personal and surety bond in the sum of Rs.25,000/- each to the satisfaction of J.M.I.C.(1), Shimla, subject to the condition that the accused person shall join further investigation, as and when required and shall not tamper with the prosecution evidence. The bail application is accordingly allowed.” Cr.MMO No. 130 of 2011: The relevant portion of the order dated 18.7.2011 passed by the Sessions Judge in bail application No.88-S/22 of 2011 is as follows:- “3. The Hon’ble High Court vide judgment and order, dated 29.06.2011 had set-aside the order, dated 28.05.2011 passed by the lower Court. The accused persons Harish Sood and Kuldeep Rao had been ordered to be committed to police custody for five days. The accused person Kuldeep Rao had surrendered before the police on 02.07.2011. On 07.07.2011, the accused person Kuldeep Rao stood committed to judicial custody. The learned P.P. had argued that the accused person was party to preparation of fake judgment. In case released on bail, the accused person could tamper with the prosecution evidence. 13 4. The copy of the fake judgment in question stood applied copying agency stamp. The accused person Harish Sood had admitted having updated the columns of the stamp applied under Section 76 of the Indian Evidence Act to the copy of judgment. 5. The accused person Kuldeep Rao had been in custody for more than 25 days. Further investigation and subsequent trial is likely to take a long time. No useful purpose shall be served by prolonged detention of the accused person in custody. Bail ought not to be refused as a measure of punishment. There is no chance of abscondance of the accused person as he is permanent resident of District Mandi. After taking into consideration the facts and circumstances of the case, I find that the accused person is entitled to bail. The accused person Kuldeep Rao is ordered to be released on bail on his executing personal and surety bond in the sum of Rs.25,000/- each to the satisfaction of J.M.I.C.(1), Shimla, subject to the condition that the accused person shall join further investigation, as and when required and shall not tamper with the prosecution evidence. The bail application is accordingly allowed.” 19. Haresh Sood and Kuldeep Rao were released on bail on 28.5.2011. This Court on 29.6.2011 in Cr.MMO No. 84 of 2011 and Cr.MMO NO. 85 of 2011 set-aside the order dated 28.5.2011 granting bail to Haresh Sood and Kuldeep Rao and directed that both of them be taken into custody by the police forthwith. In judgment dated 29.6.2011, it has been held as follows:- “31. The learned trial Court should have been alive to the situation that the case involved serious erosion of the credibility of the judicial system and the manner in which it was manipulated. The impact on public interest was plain and evident without launching into a detailed inquiry. 32. Having considered these principles, I advert to the facts of the present case. The learned trial Court has given a complete go 14 bye to the magnitude and gravity of the offence. The illegality in the order is writ large. Offences against justice could not be treated as routine offences of forgery and cheating and the lackadaisical manner in which the judgment proceeds to dispose of the bail application by pontificating on personal liberty.” “34. Simply saying that the respondents herein would not abscond and were, therefore, entitled to be released on bail, is a perversion of the principle as enunciated by the Supreme Court. The order directing the release of the respondents herein, is perverse, against all settled principles of law and cannot stand judicial scrutiny for a moment. It ignores the enormity and magnitude of an offence and the erosion of the public interest and the credibility of the judiciary by those who were supposed to protect the same. The order, therefore, deserves to be quashed and set aside as being perverse and illegal displaying if anything a total non-application of mind……” 20. In State through Delhi Administration vs. Sanjay Gandhi (supra), it has been held as follows:- “24. Section 439(2) of the Criminal P.C. confers jurisdiction on the High Court or Court of Session to direct that any person who has been released on bail under Chap. XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead