REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
1 CRIMINAL APPEAL NO. 592 OF 2012
(Arising out of S.L.P. (Crl.) No. 7644 of 2011)
Shobhan Singh Khanka .... Appellant(s)
Versus
The State of Jharkhand .... Respondent(s)
2
J U D G M E N T
P.Sathasivam,J.
1) Leave granted.
2) This appeal is directed against the judgment and order dated
21.09.2011 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 from
28.01.2008 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 dated
12.11.2005. 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.
4) Heard Mr. Uday U. Lalit, learned senior counsel for the appellant and
Mr. Sunil Kumar, learned senior counsel for the respondent-State of
Jharkhand.
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 Medallist) 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 on
26.05.2011, 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 academic
career.
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 - Expert
No.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.
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.
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 of
2010 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.
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.
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