Himachal Pradesh High Court
Nitin Azad vs Of on 12 September, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No. 1500 of 2023 Reserved on: 07.08.2023 Decided on: 12.09.2023 Nitin Azad ....Petitioner Versus of State of Himachal Pradesh ...Respondent Coram rt The Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1 For the petitioner: Mr. Ajay Kochhar, Sr. Advocate, with Mr. Vivek Sharma, Advocate.
For the respondent: Mr.Jitender Kumar, Additional Advocate General.
______________________________________________________ Sushil Kukreja, Judge The instant bail application has been filed by the petitioner under Section 439 of the Code of Criminal Procedure (Cr.P.C.) for releasing him on bail in case FIR No.04 of 2022, dated 23.12.2022, under Sections 420, 201, 120B and 409 of Indian Penal Code (for short 'IPC') and Sections 7, 7A, 8, 12 and 13(1)(a) of Prevention of Corruption Act, 1988 (for short 'PC Act'), registered at Police Station SV & ACB, Hamirpur, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 13/09/2023 20:36:23 :::CIS 22. The facts of the case, which emerge from the record, .
are that one Abhilash Kumar made a written complaint to the police alleging that he had done MBA and PGDCA and used to appear in various competitive examinations. He further alleged that as of now he is running an academy, i.e., "Eklavya Study Point" for of earning his livelihood. One Sanjeev Kumar @ Sanjay, who is resident of Kandrola and running a typing center at Anu, Hamirpur, rt is acquainted with him and he was also preparing for competitive examinations. As per the complainant, a few days ago, Sanjeev Kumar had inquired from him whether he was appearing in Junior Office Attendant [JOA(IT)], Post Code No. 965 Examination, which was scheduled to be held on 25.12.2022. When the complainant affirmed his participation in the aforesaid examination, Sanjeev Kumar told him that he could provide him the question paper of JOA (IT) written examination, scheduled to be held on 25.12.2022, for payment of rupees four lacs. Thereafter, the complainant started recording the telephonic conversation of Sanjeev Kumar and ultimately after bargaining , the price for the said question paper was fixed at Rs.2.5 lacs. On 21.12.2022 Sanjeev Kumar introduced the complainant with one Nikhil and told that Nikhil will ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 3 show him the question paper. Subsequently, both, Sanjeev and .
Nikhil put a condition before the complainant that during the time the complainant go through the question paper, he will not use his mobile phone.
3. On the above allegations, the police machinery got of activated and complainant was made a decoy and was handed over the currency notes of rupees five thousand for being paid to rt the person(s) offering him question paper. Ultimately, trap was laid and Sanjeev Kumar @ Sanjay, Nikhil, Neeraj and Uma Azad were apprehended with transcript of question paper. During further course of investigation, police found role of the petitioner, hence he was arrested on 28.12.2022. The petitioner is son of main accused Uma Azad and brother of co-accused Nikhil. It was further unearthed during the investigation that accused Uma Azad was working as Senior Assistant in Secrecy Branch, Himachal Pradesh Subordinate Service Selection Commission (HPSSC), Hamirpur and she, in connivance with the petitioner and other co-
accused, had taken out question papers and answer keys of various selection examination, including the selection examination to the post Code No. 965 of JOA (IT). Thus, the petitioner was ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 4 hand in glove and was vital link in the entire conspiracy. The .
petitioner is the son of main kingpin, Uma Rani/Uma Azad and she obtained the manuscript of question paper of JOA (IT) post code 965 and its key, through illegal means and she conspired with her sons Nitin Azad (petitioner herein), Nikhil Azad, Neeraj Kumar and of Sanjeev Kumar, to earn money by selling the manuscripts to the candidates/ applicants.
rt It was also unearthed that co-accused Sanjeev Kumar was assigned the role of contacting the candidates willing to read the solved question paper before exam in lieu of Rs.
2.5 lacs and the location and time of reading was being decided by co-accused Nitin Azad.
4. As per the status report, the involvement of the petitioner is also proved from his telephonic conversations and bank transactions. It has come in the investigation that when the number of the candidates for reading the question paper increased, the petitioner made two photocopies of the manuscript with the help of photocopier of their house and handed over to co-
accused Uma Azad, which were recovered from the almirah placed on the ground floor of their house. The photocopies were also recovered from the first floor of the house. It has further come in ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 5 the investigation that on 23.12.2022 co-accused Sanjeev Kumar .
contacted the petitioner on his phone prior to taking complainant-
Abhilash Kumar to their house for reading the question paper and when the petitioner gave him clearance, the co-accused and complainant went to the house. As per the investigation, the of involvement of the petitioner, in addition to the instant case, is found in four more cases, viz., (i) FIR No. 05 of 2022, dated rt 28.12.2022, registered under Sections 409, 420 IPC and Section 13(1)(a) of the PC Act, (ii) FIR No. 03 of 2023, dated 22.03.2023, registered under Sections 420, 201, 120B IPC and Sections 7, 8 and 12 of the PC Act (iii) FIR No. 06 of 2023, dated 16.06.2023, registered under Sections 409, 420, 120B IPC and Sections 12, 13(1)(a) and 13(2) of the PC Act and (iv) FIR No.09/2023, dated 25.07.2023,under Sections 409, 420, 120B IPC & Sections 12 & 13(1) (a) read with Section 13(2) of PC Act.
5. The bail application has been filed by the petitioner on the ground that he is innocent and has been falsely implicated in the present case. The learned Senior Counsel for the petitioner contended that neither there was any allegation against the petitioner in the original complaint, nor he was apprehended at the ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 6 time of alleged trap. He further contended that since the .
investigation of the case is complete and the petitioner is no more required for interrogation and also that the co-accused persons, namely Shashi Lal, Tanu Sharma, Ajay Sharma and Neeraj Kanwar, have already been released on bail, therefore, keeping in of view the facts and circumstances of the case, the petitioner, who is in judicial custody since 30.12.2022, deserves to be released on rt bail.
6. Per contra, the learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner, he is not entitled to be enlarged on bail. It is submitted that the present is a successive bail application and the scope for its entertainment is very narrow. Considering the serious offence and the role attributed to the petitioner and in absence of the petitioner having pointed out the changed circumstances i.e. actual and factual change in circumstances, the present application, may not be entertained.
7. I have heard the learned senior counsel for the petitioner as well as learned Additional Advocate General and have ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 7 also gone through the record of the case. From the perusal of the .
record, I am of the firm opinion that the petitioner has not made out a case for grant of bail, as prime facie there appears to be an active involvement of the petitioner in the alleged offence and there is also sufficient material against him collected by the of investigating agency.
8. The law with respect to the grant or refusal of bail is rt well settled. It has been held by the Hon'ble Supreme Court in a catena of judgments that the grant of bail involves the balancing of numerous factors, amongst which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-
serves the purpose of the criminal justice system. In Chaman Lal ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 8 Vs. State of U.P. and Another, (2004) 7 SCC 525, the Apex Court .
has laid down requisite factors for consideration of bail i.e., (i) nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge.
rt
9. In Kalyan Chandra Sarkar Vs Rajesh Ranjan alias Pappu Yadav and Another, (2004) 7 SCC 528, the Hon'ble Apex Court has held that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. The relevant portion of the aforesaid judgment reads as under:-
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter or course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.::: Downloaded on - 13/09/2023 20:36:23 :::CIS 9
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
.
(c) Prima facie satisfaction of the court in support of the charge."
10. The Hon'ble Apex Court referred to the factors to be borne in mind while considering an application for bail in Prasanta of Kumar Sarkar vs Ashis Chatterjee and another, (2010) 14 SCC 496 and the said factors are as follows:-
9...............
rt "(i) whether there is any prima facie or reasonable ground to believe that the Accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the Accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the Accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
..........."
11. In Central Bureau of Investigation Vs. V. Vijay Sai Reddy, (2013) 7 SCC 452, the Apex Court has reiterated the principle by observing as follows:-
" 34. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 10 apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar .
considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not of expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
12. In Virupakshappa rt Gouda Vs. The State of Karnataka, AIR 2017 SC 1685 the Apex Court held that an order of bail cannot be granted in an arbitrary or fanciful manner. The relevant portion of the aforesaid judgment is reproduced as under:-
"18. From the aforesaid principles, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. In this context, we may, with profit, reproduce a passage from Neeru Yadav Vs. State of Uttar Pradesh, wherein the Court setting aside an order granting bail observed:-
"The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 11 as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant .
one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and of accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible.
rt Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law."
13. In Anil Kumar Yadav Vs. State (NCT) of Delhi, AIR 2017 SC 5398, the Apex Court by relying upon various judgments held that for ensuring the fair trial, witnesses must be in a position to freely depose without fear. The relevant portion of the aforesaid judgment reads as under:-
"29. In the present case, the trial is at a very crucial stage. The trial court is yet to record the testimony of material witnesses including the complainant as well as all the material witnesses. The trial has commenced and the trial is said to be posted for 04.12.2017. For ensuring the fair trial, witnesses must be in a position to freely depose without fear. In the facts and circumstances of the case, we are convinced that a fair trial can be ensured only if the appellants are not enlarged on bail.::: Downloaded on - 13/09/2023 20:36:23 :::CIS 12
30. We are conscious of the fact that the appellants are only under trials and their liberty is also a relevant .
consideration. But equally important is to consider the impact of their release on bail on the prosecution witnesses and also its impact on society. In order to ensure that during trial the material witnesses depose without fear and justice being done to the society, a balance has to be struck. Referring to Masroor v. State of Uttar Pradesh and another (2009) 14 SCC 286 and other cases, in State of Bihar v.
of Rajballav Prasad alias Rajballav Prasad Yadav alias Rajballabh Yadav (2017) 2 SCC 178, this Court held as under:-
"26. We are conscious of the fact that the respondent is only rt an undertrial and his liberty is also a relevant consideration. However, equally important consideration is the interest of the society and fair trial of the case. Thus, undoubtedly the courts have to adopt a liberal approach while considering bail applications of the accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice-delivery system. It is this need for larger public interest to ensure that criminal justice-delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations. After all, if there is a threat to fair trial because of intimidation of witnesses, etc., that would happen because of wrongdoing of the accused himself, and the consequences thereof, he has to suffer........" [underlying added]"
14. In Mahipal vs. Rajesh Kumar @ Polia and another, (2020) 2 SCC 118, the Hon'ble Apex Court held that the power to ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 13 grant bail under Section 439 of Cr.P.C. is of a wide amplitude.
.
Though the grant of bail involves the exercise of discretionary power of the Court, it has to be exercised in a judicious manner and not as a matter of course. In the said case, the guiding factors for exercise of power to grant bail as held in Ram Govind of Upadhyay vs. Sudarshan Singh, (2002) 3 SCC 598, were referred, which are as follows:-
rt "11.............
3. Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case...The nature of the offence is one of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:
(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.::: Downloaded on - 13/09/2023 20:36:23 :::CIS 14
(c) While it is not expected to have the entire evidence establishing the guilt of the Accused beyond reasonable .
doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be (2002) 3 SCC 598 considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of of events, the Accused is entitled to an order of bail."
15. In view of the above stated authoritative pronouncement of law laid down by the Apex Court, coming to the rt facts of the case on hand. On a perusal of the entire material available on record, it is revealed that the petitioner/accused Nitin Azad is the elder son of main accused Uma Azad and is the elder brother of accused Nikhil Azad and he resides in the Housing Board Colony with them. During investigation, it has been revealed that the main accused Uma Azad had been working in Examination-I Branch since February, 2019 as Senior Assistant.
She obtained a copy of manuscript of question paper of JOA (IT) Post Code 965 and its key through illegal means in which she marked the correct answers from the answer key. She conspired with her sons, i.e. petitioner Nitin Azad and Nikhil Azad as well as Neeraj Kumar and Sanjeev Kumar in selling the manuscript of question paper to the candidates. Accused Sanjeev Kumar was ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 15 assigned the role of contacting the candidates, who would be .
willing to read the solved question paper in lieu of Rs.2.5 lacs before the examination. The location and the time of reading the question paper was being decided by petitioner-accused Nitin Azad. When the number of the candidates willing to read the of question paper increased, accused Nitin Azad prepared two photocopies of the manuscript with the help of photocopier in their rt house and handed over the same to accused Uma Azad, which were recovered from the almirah placed on the ground floor of their house. It has further come in the investigation that on 23.12.2022,co-accused Sanjeev Kumar contacted the petitioner on his phone prior to taking complainant-Abhilash Kumar to their house for reading the question paper and when the petitioner gave him clearance, the co-accused and complainant went to their house for reading the question paper. After registration of this case, SIT under the Chairmanship of DIG (Vigilance) was constituted in order to find out the irregularities which occurred in the conduct of examinations by erstwhile HPSSC, Hamirpur and twelve cases have been registered as a consequence of the present case. Thus, prima facie, the allegations made against the ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 16 petitioner are serious in nature as he has been found indulged in .
criminal conspiracy with other accused persons in a huge scandal with regard to leakage of question paper and its sale in lieu of money.
16. The learned counsel for the petitioner submitted that of the petitioner may be released on bail as he remained in custody for the last about eight months. However, this submission of the rt learned counsel for the petitioner deserves to be rejected as the grant of bail depends upon the facts and circumstances of each case and a balance has to be struck between the "right to individual liberty" and "interest of the society". It has been held by the Hon'ble Supreme Court in its judgment rendered in a case titled Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI through its Director [AIR 2007 SC 451] that "the interest of society outweighs the individual interest of a person and the longer period of imprisonment cannot be a ground for grant of bail". Applying the ratio of the judgment (supra) to the facts of the case in hand, the period of incarceration for about eight months of the petitioner in detention is not a ground for his enlargement on bail. There is every danger of the course of justice being thwarted, if the ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 17 petitioner is enlarged on bail. Offences indicted against him are .
serious in nature and such type of offences are to be dealt with severity.
17. Pertinently, the present is the successive bail application filed by the petitioner. Earlier, the petitioner had of preferred the bail application (Cr.MP(M) No.342/2023) before a co-
ordinate bench of this Court , which came to be dismissed vide rt order dated 11.04.2023.It is a well settled principle of law that when the successive application comes before the Court, the Court would be very conscious while considering the same. As held by the Apex Court in the State of Maharashtra v. Captain Buddhikota Subha Rao, AIR 1989 SC 2292, that successive bail application can be entertained by the Court when substantial change is established by the accused, which would entitle him for getting bail in successive bail application. The Court should not pass the order of releasing him on bail in successive bail application merely establishing some cosmetic change between time gap of two applications. There should be drastic change during the period between two applications, which would entitle the accused for bail.
::: Downloaded on - 13/09/2023 20:36:23 :::CIS 1818. The nature and gravity of offence is serious as .
petitioner has been found involved in a criminal conspiracy with other accused in leakage of question paper and its sale in lieu of money. The offence is against the society as a whole as due to the said huge scam, carrier of thousands of candidates for the of post of JOA (IT), Post Code 965 has been ruined. Such scandals are therefore considered as anathema to public and social interest rt . Due to this act of the petitioner-accused, the faith of the people on the Government and recruitment agency has been shaken and public confidence in the system has been undermined. Keeping in view the sensitivity and seriousness of the offence, in case he is released on bail, a wrong message will travel in the society and other youngsters will be motivated towards illegal means of passing the examinations. The petitioner-accused is involved in four more cases, i.e. FIRs No.05/2022, dated 28.12.2022, 03/2023, dated 22.03.2023, 06/2023, dated 16.06.2023 & 09/2023, dated 25.07.2023. The investigation in other post codes is under way and the scam which is of a huge magnitude, requires its complete unearthing, therefore, the investigating agency must get sufficient time to complete the investigation in other cases and unearth the ::: Downloaded on - 13/09/2023 20:36:23 :::CIS 19 scam and if at this stage, the petitioner is enlarged on bail, he may .
affect the investigation of other cases and there is every likelihood that he may destroy the evidence. Being a kingpin of the scandal, he is in a position of influencing the witnesses and the investigation of freshly registered cases and tempering the prosecution of evidence.
19. Therefore, keeping in view the nature and gravity of the rt offence, severity of punishment in the event of conviction and likelihood of tampering with the evidence and also in view of the larger public interest, the present is not a fit case to exercise the discretion under Section 439 of Cr. PC in favour of the petitioner.
20. Hence, for the reasons mentioned above, the bail application filed by the petitioner is dismissed.
21. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.
(Sushil Kukreja)
September 12, 2023 Judge
(VH)
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