Jammu & Kashmir High Court
Reserved On:- 11.11.2022 vs Central Bureau Of Investigation on 30 November, 2022
Author: Mohan Lal
Bench: Mohan Lal
S. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU 1.
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B.A No. 371/2022
Reserved on:- 11.11.2022
Pronounced on:- 30. 11.2022
Dr. Karnail Singh age 58 years S/O Late Sh. ....Petitioner(s)
Shiv Ram R/O Panjtoot Planwala Tehsil Khour
District Jammu A/P in custody of the
respondents through his son Sahil Kala age 33
years S/O Dr. Karnail Singh R/O Panjtoot Planwala Tehsil Khour District Jammu A/P Ganesh Nagar Patoli Jammu.
Through :- Sh. Rahul Pant, Sr. Advocate with Sh. Anirudh Sharma, Advocate.
V/s
1. Central Bureau of Investigation, Anti- ....Respondent(s) Corruption Branch Jammu Panama Chowk Jammu through Head of the Branch.
2. Officer Incharge Police Station Central Bureau of Investigation ACB Panama Chowk Jammu.
Through:- Ms. Monika Kohli, Sr. AAG with
7. Sh. Parshant Sharma, Dy. SP/CBI.
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE O R D E R
1. Petitioner a doctor by profession holding the post of Chief Medical Officer/Selection Grade/Commandant Medical in Border Security Force, IG Headquarter Paloura Jammu arrested on 18.10.2022 in case FIR No. RC0042022A0008 dated 03.08.2022 registered with Police Station CBI, ACB, Panama Chowk Rail Head Jammu for commission of offences under Sections 120- B & 420 IPC has claimed bail on the grounds, that on 05.08.2022, when he was getting ready for office two officers from Central Bureau of Investigation namely, Sh. Mahesh Kumar Additional Superintendent of Police CBI, ACB alongwith one- Mr. Sanjay came to search his residential premises alongwith other police officers in pursuance to the search warrants issued under Section 165 Cr.P.C by the I.O, pursuant to which, a thorough search was conducted for ten hours approximately by the team which arrived at his residence at 7.30 a.m and left the premises after 2 B.A No. 371/2022 thorough search at 6.25 pm, whereby the petitioner was directed to report the CBI alongwith his son on 06.08.2022 at 11 a.m; that simultaneously, search was conducted on the same day in the office of the petitioner and some records were also collected from the office of the petitioner, but nothing incriminating was found from the petitioner during the search operation and the petitioner came to know that the aforesaid FIR has been registered by the ACB, Panama Chowk, Rail Head Jammu, perusal of the same shows that the petitioner alongwith his son, namely, Shubham Kala has been reflected as suspects in the said FIR wherein the name of the petitioner figures at Serial No. 1 in the list of suspects while the name of his son figures at Serial No. 33; that the FIR in question pertains to the allegations that gross irregularity was detected in the written examination for Sub- Inspectors‟ posts in the Jammu and Kashmir Police Service Selection Board (in short, J&K SSB) and on the basis of the allegations of criminal conspiracy amongst the officers of J&K SSB which was engaged by the said Board and also some beneficiaries and the process of conducting the written examination has been fudged; that the petitioner associated with the investigation being conducted by the respondents, as he had nothing to hide, as such, he reported in the office of the Investigating Officer on 06.08.2022 at 10.30 a.m alongwith his son, whereby, the petitioner was permitted to leave the office of the Investigating Officer at 8.30 p.m and during the said period, questionnaires were given to the petitioner and some were replied; that in terms of Notice under Section 41-A of the Cr.P.C issued to the petitioner, he attended the office of the I.O (CBI) on 07.08.2022, 20.08.2022 and 22.09.2022 but nothing incriminating was found against the petitioner and unfortunately, in a most illegal and arbitrary manner, petitioner was subjected to torture, humiliation and physical violence by the I.O and other officers in the office of CBI which constrained the petitioner to file the writ petition bearing WP(C) No. 1940/2022 titled, "Dr. Karnail Singh vs. Union Territory of J&K and ors.", whereby an appropriate writ/order in the nature of mandamus was prayed, commanding the respondent Nos. 2 and 3 to initiate departmental action against the respondent Nos. 4 to 7 for having subjected the petitioner to worst kind of physical and mental violence, to which respondents filed replied on 12.10.2022 and the petitioner filed rejoinder on 18.10.2022, rebutting the averments, whereby he was all along coerced and forced to withdraw the writ petition; that immediately after the rejoinder was filed on 18.10.2022, the respondents arrested the petitioner on 18.10.2022 illegally and arbitrary in contravention to the provisions of Section 41 of the Cr.P.C and alongside the aforesaid writ petition, the petitioner filed an 3 B.A No. 371/2022 application for seeking bail in anticipation of his arrest and with a view to circumvent the process of law, the arrest of the petitioner was effected and as a matter of fact, because of the torture inflicted upon the petitioner by the respondents during the investigation including physical abuse, the petitioner suffered acute depression and had to be admitted in Psychiatric Diseases Hospital Government Medical College Jammu on 24.09.2022 and was discharged from the said Hospital on 10.10.2022 after appropriate medication and in terms of advice given by the doctors, as mentioned in his discharge slip, the petitioner had to report back to hospital for review medical checkup, the extent of torture suffered by the petitioner can be well judged from the fact that he was made to sit on the ground for almost 10 hours daily for more than 1½ month, he was forced into „murga‟ position despite the fact that it was unbearable for him to keep in that posture in view of his age and spinal problems; the petitioner moved an application for grant of bail on 19.10.2022, but the same was dismissed by the learned Chief Judicial Magistrate Jammu vide order dated 27.10.2022; that the petitioner is a respectable person of society and is doctor by profession and is holding a senior position in the Para Military Force, but despite that he has been tortured, humiliated and arrested for extraneous reasons, petitioner never got involved in criminal history and has never committed any offence and the offence; that the offence under Section 420 IPC is punishable with imprisonment for 07 years and although it is non-bailable, nonetheless keeping in view the facts and circumstances of the case, it cannot be held that the petitioner will not face trial in the case ultimately if he is found guilty after the investigation; that even the wife of the petitioner is already suffering from life consuming disease, as she had a history of Coronary Artery disease and is also suffering from Bone Marrow Cancer/Myelodysplastic Syndrome since April 2022 and she was diagnosed with the aforesaid cancer, she needs regular blood transfusion keeping in view her ailment, as such, she requires constant care and attention and except the petitioner there is none to take care of her; that the petitioner has two sons, one of them is a private employee and can hardly spare time to look after his mother and the second son namely, Shubham Kala is also being called in the investigation alongwith the petitioner; that one of the allegations against the petitioner is that the data of CCTV footage has been deleted by him and even otherwise it remains in the hard disk in DVR; that the issue of the petitioner‟s health is a matter of great concern and because of serious psychiatric problems, he has not been taken up for medical examination, whereby, his health is deteriorating, on 25.10.2022 the blood pressure of the petitioner got shoot up 4 B.A No. 371/2022 suddenly, resulting into bleeding from his nose, whereafter, he was rushed to the doctor; that the condition of the petitioner is deteriorating day by day and nothing incriminating has been found against the petitioner in the statement of the driver of the petitioner, a cock and bull story has been concocted with respect to the petitioner‟s having met with Sh. Ashok Kumar Controller of Examinations of J&K SSB, inasmuch as, the said Ashok Kumar is not even an accused in the case and there are no allegations against him, respondents are leveling false allegations about the son of the petitioner that he is trying to exert influence over the witnesses to dissuade them from speaking against the petitioner and the said assertion is absolutely incorrect; that the conclusion drawn by the Court below that the petitioner is an influential person and will tamper with the evidence, is without any foundation, petitioner has cooperated with the investigation of the case and there is no question of the petitioner either tampering with the evidence or with the witnesses, petitioner has already been subjected to intense investigation in detail, he undertakes to abide by all such terms and conditions imposed by this Court while granting bail.
2. Respondents by filing objections, inter-alia, have opposed the bail on the grounds, that the accused has destroyed evidence by tampering with the log book of his official vehicle, deleting the date of his mobile phone and CCTV of his residence and concealment of proceeds of crime which shows that he has no regard for law of the land. It is contended, that vide letter No. GAD-VIG0COMP/285/2022-04- GAD dated 08.07.2022, Dr. Mohammad Usman Khan KAS, Deputy Secretary, GAD, Govt. of J&K has conveyed the decision of Govt. of J&K for investigation by CBI into allegations of irregularities in written examination of Sub-Inspectors posts in J&K Police conducted by J&KSSB on the basis of report of Inquiry Committee constituted by the Govt. of J&K, whereby it was, prima-facie, revealed that criminal conspiracy amongst officials of J&K SSB, M/S Merit Trac Bengaluru, beneficiary candidates and other accused persons causing gross irregularities in conduct of written examination of Sub Inspectors posts in the J&K Police conducted by JKSSB, and accordingly, regular case FIR No. RC0042022A0008 was registered under Section 120-B r/w Section 420 IPC on 03.08.2022 against the officials of J&KSSB, M/S Merit Trac Bengaluru, beneficiary candidates and other candidates, wherein the name of the petitioner and his son have been mentioned at Serial Nos. 1 and 33 of the FIR. It is moreso contended, that the inquiry report of the Committee, report of CID of J&K reveal that the petitioner is the mastermind/kingpin of this scam, the investigation 5 B.A No. 371/2022 conducted so far has revealed that M/S Merit Trac Services Pvt. Ltd. Bengaluru was awarded the contract despite it not being the L1 and despite the fact that ONGC had reportedly terminated the contract of M/S Merit Trac on 13.01.2015 on the grounds that the agency failed to conduct the examination satisfactorily as per the contract of conducting of written examination of Sub Inspectors post but led to leakage of question papers before the date of examination, the assignment of the task relating to the setting up of the question papers, mixing of question papers etc. to M/S Merit Trac is in contravention to the Regulation Nos. 9, 10 and 16 of the (i) J&KSSB (Business and Procedure) Regulations 2013 and (ii) J&KSSB(Conduct of Examination) Regulations 2013, in the inquiry report it has been alleged that certain OMR Answer Sheets were replaced with either without the signatures of the candidates/Invigilators or the forged signatures of the invigilators, besides JKPSI Exam, question papers of Finance Accounts Assistant & JE(Civil) conducted on 06.03.2022 and 20.03.2022 respectively were leaked. It is submitted, the investigation has revealed that the accused persons based in J&K entered into criminal conspiracy with accused based in Haryana for leakage of question paper and sale of the same to candidates, the candidates were taken to a place in Nilokheri near Karnal Haryana and provide leaked question paper, further the leaked question paper was also provided to candidates in Jammu at Gangyal and at the residence of the petitioner Dr. Karnail Singh, petitioner has played a key role in the criminal conspiracy to leak the question paper and sell the same to the candidates in lieu of money, it is revealed during the investigation that Shubam Kala S/o Karnail Singh got the leaked question paper in Jammu through a tout Jagdish Sharma, the official driver of the petitioner namely Ajay Kumar picked Shubam Kala, Jagdish and Paras Sharma from Asia Hotel Jammu and took them to the residence of Karnail Singh, CDR analysis has revealed that Ajay Kumar (official driver) of Dr. Karnail Singh was in touch with Jagdish Sharma on early morning of 27.03.2022, the investigation has revealed that three (3) candidates accessed the leaked question paper at the house of Dr. Karnail Singh, CDR analysis has revealed that the applicant/Dr. Karnail Singh was in constant touch with two (2) touts-Jagdish Sharma and Vijay Kumar on the date of examination, petitioner made three calls on 25.03.2022 (i.e. one day before the date of exam) to Ashok Kumar Controller of Examination JKSSB, the inquiry report depicts that there is discrepancy in the signature of invigilator on the OMR sheet of Shubam Kala S/o Dr. Karnail Singh when compared to signature on attendance sheet, the petitioner and his son Shubam Kala have deleted data from their mobile phones, 6 B.A No. 371/2022 deleted data of CCTV installed at their house. It is moreso contended, that petitioner was arrested on 18.10.2022 and after expiry of his police remand period on 01.11.2022 he has been remanded to judicial custody till 15.11.2022, petitioner/accused being senior officer of BSF is highly influential and may influence witnesses and destroy evidence to frustrate the investigation petitioner/accused has concealed the proceeds of crime, he is trying to use illness of his wife as a shield to save himself from investigation as there are sufficient people in his family to take care of his wife, he is alleged to have committed serious offence having grave implications for career and aspirations of millions of youth of J&K, the offence has the potential of jeopardizing the career and aspirations of lacs of students and involves inter-state gangs operating in several States and investigation is underway to unearth the entire facts of criminal conspiracy. It is contended, that petitioner has been arrested as per the procedure laid down in Section 41 of Cr.P.C, as the reasons for his arrest have been duly recorded in the case diary, medical checkup of the petitioner is being regularly done as per the guidelines, as was done at Psychiatric Diseases Hospital Jammu on 23.10.2022 and the claim of the petitioner regarding deterioration of his health is completely baseless, as he was found fit by the doctors at Police Hospital Jammu at every examination, the statement of Ajay Kumar (official driver of the petitioner) has been recorded under Section 164 Cr.P.C wherein he has stated that on 26.03.2022 (night) he was asked by the petitioner to pick Shubam Kala in the morning of 27.03.2022 from the place asked by Shubam Kala, in the morning of 27.03.2022, the said Shubam Kala called Ajay Kumar from unknown number 6006671072 (used by accused-Jagdish Sharma) and asked to be picked from Asia Hotel accordingly, Ajay Kumar picked Shubam Kala, Jagdish Sharma and the candidate Paras Sharma from Asia Hotel and dropped them at the residence of Dr. Karnail Singh, statement of other witnesses and documentary evidence has established the role of the petitioner in arranging leaked question paper for his son and for further sale to candidates at his residence and his role in replacement of OMR sheets is under investigation and the proceeds of crime are also being traced, release of petitioner/accused on bail at this stage of investigation may prejudice the investigation of the case which is being conducted in right perspective, prayer has been made for dismissal of the bail application.
3. Sh. Rahul Pant Ld. Sr. Counsel for petitioner has sought release of petitioner on bail by vehemently projecting arguments, that nothing incriminating has been found against the petitioner during the search of his house by the respondents and 7 B.A No. 371/2022 during the period of his arrest on 18.10.2022 till he was lodged in judicial custody he was subject to worst kind of physical and mental violence at the behest of the respondents, his arrest under Section 41 of the Cr.P.C is illegal, investigation is complete and nothing is to be recovered or to be investigated from him, he suffered acute depression and got admitted in Psychiatric Diseases Hospital Government Medical College Jammu where he was medically treated but has to report back for review of medical checkup. It is argued that the petitioner is respectable person of society and doctor by profession holding senior position in para-military fForce, has never committed any criminal offence and even the allegations of cheating and criminal conspiracy against him for commission of offences under Sections 420 and 120-B IPC is only punishable for seven years imprisonment for which bail cannot be refused, he cannot be incarcerated for a longer period of detention which amounts to infliction of pre-trial punishment, wife of the petitioner is suffering from life consuming disease, viz; Coronary Artery disease which is a disease of Bone Marrow Cancer/Myelodysplastic Syndrome since April, 2022 who needs regular blood transfusion, as such, the wife of the petitioner requires constant care and attention which can only be done by the petitioner, therefore, the petitioner has a right to be admitted on bail. It is further argued, that grant of bail is a general rule and refusal is an exception, offence against the petitioner is not a grave and heinous and even on health ground the petitioner can be released on bail by imposing certain conditions, which the Court deems fit and proper in the circumstances of the case. To support his arguments, learned counsel has relied upon the judgments reported in (i) 2018 (3) SCC 22 [Dataram Singh vs. State of Uttar Pradesh and Anr], (ii) 2012 (1) SCC 40 [Sanjay Chandra vs. CBI], (iii) AIR 1978 SC 1016 [Miss Harsh Sawhney Vs. Union Territory (Chandigarh Admn.],
(iv) 2019 (9) SCC 24 [P. Chidambaram Vs. Directorate of Enforcement], (v) Siddharth Vs. The State of Uttar Pradesh and Anr. [Criminal Appeal No. 838 of 2021 arising out of SLP (Crl.) No. 5442/2021], (vi) 2014 (3) SCC 273 [Arnesh Kumar Vs. State of Bihar and Anr.], (vii) AIR 2022 SC 3386 [Satender Kumar Antil vs. Central Bureau of Investigation and Anr.], (viii) CRM-M No. 23705- 2022 (O&M) [Pranjil Batra Vs. Directorate of Enforcement].
4. Ms. Monika Kohli, learned Sr. AAG, appearing on behalf of the respondents, has vehemently opposed the grant of bail to the accused by portraying arguments, that petitioner/accused holding the post of Chief Medical Officer/Selection Grade/Commandant Medical in Border Security Force IG Headquarter Paloura Jammu has indulged in criminal conspiracy with the officials of J&K SSB and M/S 8 B.A No. 371/2022 Merit Trac Bengaluru the company assigned the task of conduct of written examination of Sub-Inspectors‟ post in UT of J&K for J&K Police to be conducted by J&K SSB which speaks volumes about the mis-conduct of the petitioner. It is argued that as many as 33 accused persons are indicted in the FIR No. RC0042022A0008 registered against the petitioner and in the said FIR the petitioner figures at Serial No. 1 as an accused and his son figures at Serial No. 33, petitioner is the mastermind/king pin of the scam, the investigation so far conducted has revealed that M/S Merit Trac Bengaluru was awarded the conducting of the written examination for the post of Sub-Inspectors in J&K and during the conduct of the examination petitioner got certain OMR answer sheets replaced, whereby, petitioner/accused entered into criminal conspiracy with the accused based in Haryana for leakage of question papers and sale of the same to the candidates in lieu of money, three candidates have accessed to the leaked question papers in the house of the petitioner/accused, more so, the petitioner and his son have deleted data from their mobile phones, deleted data of CCTV installed at their house, petitioner/accused is highly influential person and may influence the prosecution witnesses, whereby, the investigation may be prejudiced and moreso the career of hundreds and thousands of aspirants have been marred/spoiled, the investigation is underway and more accused are likely to be arrested for sustained interrogation and if the petitioner/accused is enlarged on bail it will be difficult for the investigating agency to unearth the Inter-State gangs operating in several States. Prayer has been made for rejection of the bail application.
5. I have heard learned Sr. counsel for the petitioner and Ld. AAG for respondents. I have perused the contents of bail application, objections of the respondents, the case diaries produced by the I/O, and have also bestowed my thoughtful consideration to the material aspects involved in the case.
6. Before deciding the bail application in hand, I would like to enumerate the factors, which should be taken into consideration while granting or refusing bail in a non- bailable case. The Hon‟ble Supreme Court in case laws titled "State of U.P vs. Amarmani Tripathy, reported in 2005 (8) SCC 21 vide paragraph-8 and in Criminal Appeal No. 448 of 2021 [@ Special Leave Petition (Crl.) No. 3577 of 2020] (Sudha Singh-Appellant(s) versus The State of Uttar Pradesh and Anr.- Respodent(s) judgment delivered on 24.04.2021] has culled out certain factors to be taken into consideration while deciding bail application in non-bailable offences as under:-
9 B.A No. 371/2022"It is well settled that the matters to be decided in an application for the bail are:-
(I) Whether there is any prima-facie or reasonable ground to believe that accused has committed the offence;
(II) Nature and gravity of the charge;
(III) Severity of 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 tampered with and (VIII) Danger, of course of the justice being thwarted by grant of bail;
Indeed, these guidelines/factors are not exhaustive, nonetheless, these have to be considered while passing an order in a bail application in a non-bailable offence. (I) Prima-facie or reasonable ground to believe that accused has committed offence.
It is profitable to reiterate here that regular case FIR No. RC0042022A0008 has been registered against the petitioner and other co-accused for commission of offences u/ss 420 and 120-B IPC on 03.08.2022 for the allegations, that the petitioner has entered into criminal conspiracy with the officials of J&K SSB and M/S Merit Trac Bengaluru whereby gross irregularities in the conduct of written examination of the post of Sub-Inspectors in J&K Police conducted by the J&K SSB have been surfaced, petitioner figures at Serial No. 1 as an accused whereas his son Shubam Kala figures at Serial No. 33 in the said FIR, petitioner is the mastermind/king pin of the scam and has leaked the question papers and supplied the same to the candidates in lieu of money, three candidates had accessed the leaked question papers in the house of the petitioner whereas the petitioner‟s son got the question papers leaked in Jammu through a tout namely Jagdish Sharma and the official driver of the petitioner namely Ajay Kumar who arranged examination of the three candidates at the petitioner‟s house, petitioner is involved in Inter-State gangs operating in several States and with the accused based Harayana candidates were taken to a place in Nilokheri near Karnal Haryana and were provided leaked question papers, whereas, the leaked question papers were also provided to the candidates at Gangyal in Jammu at the residence of the petitioner by selling the leaked question papers in lieu of money. It is trite law that criminal conspiracy is always hatched in secrecy and direct evidence of criminal conspiracy is seldom available. The existence of criminal conspiracy and its objects can be inferred from the circumstantial evidence and from the conduct of the accused. As per the response filed by the respondents and perusal of the case diary brought by the Investigating Officer, it can be safely inferred that conduct of the petitioner is an inferential circumstance which prima-facie establishes that he 10 B.A No. 371/2022 has hatched criminal conspiracy with the official of J&K SSB and M/S Merit Trac Bengaluru for leakage of the question papers for the examination of Sub-Inspectors post in Police Department in Jammu and Kashmir.
In 2018 (3) SCC 22 [Dataram Singh Vs. State of Uttar Pradesh and Anr.] relied by Ld. Counsel for petitioner, Hon‟ble Supreme Court granted bail to the accused for commission of offences under Sections 419, 420, 406 and 506 IPC in a cheque bounce case under Section 138 of the Negotiable Instruments Act, 1881 on account of the fact that the investigation was complete and chargesheet was filed in the court of law. In 2012 (1) SCC 40 [Sanjay Chandra Vs. CBI] relied by Ld. Counsel for petitioner, Hon‟ble Supreme Court granted the bail to the accused at the stage when the investigation was complete and charge-sheet was filed. In AIR 1978 SC 1016 [Miss Harsh Sawhney Vs. Union Territory (Chandigarh Admn.] relied by Ld. Counsel for petitioner, Hon‟ble Supreme Court granted the bail to the accused on the ground that the presence of the accused is not required for search and recovery of certain documents and the investigation was complete. In 2019 (9) SCC 24 [P. Chidambaram Vs. Directorate of Enforcement] relied by Ld. Counsel for petitioner, Hon‟ble Supreme Court granted regular bail to the appellant/accused on the ground that investigation was complete and one of the co-accused was granted bail by the High Court of Delhi while other co-accused was enjoying interim protection from arrest. In Criminal Appeal No. 838 of 2021 arising out of SLP (Crl.) No. 5442/2021 [Siddharth Vs. The State of Uttar Pradesh and Anr.] relied by Ld. Counsel for petitioner, Hon‟ble Supreme Court granted bail to the accused on the ground that investigation was complete and petitioner/accused alongwith 83 other private persons were sought to be roped in the FIR after seven years of its registration. In 2014 (8) SCC 273 [Arnesh Kumar Vs. State of Bihar and Anr.] relied by Ld. Counsel for petitioner, Hon‟ble Supreme Court granted anticipatory bail to the accused on the ground that the offences against the accused u/s 498-A IPC read with Section 4 of the Dowry Prohibition Act 1961 was punishable only upto three years and there was no occasion for the police officer to arrest the accused as no special circumstances were reported by the investigating officer for arrest of the accused. In in AIR 2022 SC 3386 [Satender Kumar Antil vs. Central Bureau of Investigation and Anr.] further relied by Ld. Counsel for petitioner, Hon‟ble Supreme Court has laid down certain guidelines in regard to arrest of the accused u/ss 41 and 41A of the Cr.P.C and non-compliance thereof would entitle the accused to grant of bail. In CRM-M No. 23705-2022 (O&M) decided on 11 B.A No. 371/2022 04.11.2022 by the High Court of Punjab and Haryana at Chandigarh [Petitioner:-Pranjil Batra Vs. Directorate of Enforcement], the High Court of Punjab and Haryana granted bail to the accused indicted in offence u/s 4 r/w Section 70 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the 'PMLA') on the grounds that the supplementary complaint stands already presented in the Court and the petitioner was behind the bar for the last eight months. None of the case laws (Supra) relied by Ld. Counsel for petitioner lay down an invariable rule of law that in every case of non-bailable offence bail has to be mandatorily granted, and it is only the judicial discretion of the court based on sound principles which has to be taken into consideration at the time of grant or refusal of bail. From the perusal of the case diary submitted by the I/O and the response filed by the respondents, it is discernible, that the allegations against petitioner are grave and serious in nature as he has been found indulged in criminal conspiracy with other accused persons in a huge scam of irregularities in the written examination of J&K Police Sub-Inspectors posts in regard to leakage of question papers and their sale in lieu of money, wherein, the investigating agency so far has recovered a cash amount of Rs. 61.79 lacs. Petitioner being BSF personnel in the rank of Chief Medical Officer/Selection Grade/Commandant belonging to defence force was required to exhibit his high integrity, official conduct and decorum above board and like Caesar‟s wife, but has displayed a character of unbecoming of a person of defence force. In view of the evidence collected by the investigating agency so far, there is prima-facie or reasonable ground to believe that petitioner has committed the offence indicted against him. The investigation is yet incomplete, more accused persons are yet to be arrested, the scam requires its complete unearthing, therefore, the instigating agency must get sufficient time to complete the investigation and unearth the inter-state gang scam. Arguments of learned counsel for the petitioner that the petitioner is not part of conspiracy as nothing substantial has been found against him, in view of the peculiar facts of the case, are unsustainable in the eyes of law, repelled, rejected and discarded.
(II) Nature and gravity of charge:- The nature and gravity of charge is serious, as the petitioner has entered into criminal conspiracy with the co-accused based in Haryana and has leaked question papers of the written examination of J&K Police Sub Inspectors Exams, whereby, certain OMR answer sheets have been replaced either without signatures of the candidates/invigilators or the forged signatures of the invigilators have been done, candidates have been taken to a place namely 12 B.A No. 371/2022 Nilokheri near Karnal Haryana and provided leaked question papers, three (3) candidates have accessed the question papers in the house of the petitioner who is the key conspirator in leaking the question papers and for sale thereof has earned huge money, inasmuch as, one Shubham Kala (son of the petitioner) figures at Serial No. 33 of the FIR who has also played a key role in leaking the question papers in Jammu through the tout Jagdish Sharma and the official driver of the petitioner namely Ajay Kumar. The gravity of charges are very serious, the offence is against the society as whole, as due to such a huge scam the carrier of hundreds and thousands of the candidates/aspirants of police Sub-Inspector written exam has been marred. Enlargement of the petitioner on bail at this stage of the case when the investigation is incomplete, is sure to shake the confidence of the people at large whose interests are involved in the case. This is a case of huge public importance.
(III) Severity of punishment & (IV) danger of accused absconding or fleeing, if released on bail:- The maximum punishment provided for the offence indicted against the petitioner u/ss 420 and 120-B IPC is seven years, which is severe in nature. When the punishment provided for an offence is severe in nature, there is every danger of the accused absconding or fleeing from justice if released on bail. More severe the punishment is, more are the chances of the accrued to abscond during trial or flee from justice if released on bail.
(v) Character, behaviour, means and position of the accused:- The petitioner does not enjoy special status in the society as compared to the public at large. The allegations against the petitioner are serious that he has indulged in a crime of leaking the question papers of the written examination of Sub-Inspectors of J&K Police in the UT of Jammu and Kashmir. The petitioner since his arrest on 18.10.2022, is lying in judicial custody in District Jail Amphalla Jammu and does not enjoy a special position in the society so as to succeed in his case for grant of bail at this stage when the investigation is yet to be completed.
(vi) Likelihood of the offence being repeated:- In view of the above facts and circumstances of the case, it is clearly gatherable, that there is a prima-facie case or reasonable ground to believe that the accused has committed the offence indicted against him, the maximum punishment for which is upto seven years. The offence is grave in nature, as the interest of the society/public at large has been floated by the petitioner. The investigation is yet incomplete, as the investigating agency is expected to break the nexus of the criminal, who indulged in such type of activities. More time has to be granted to the investigating agency to unearth the 13 B.A No. 371/2022 crime which is of a huge public importance. If the petitioner is enlarged on bail at this stage, there is every likelihood of the offence being repeated by him, as grant of bail would encourage him in repeating the offence.
(vii) Reasonable apprehension of the witnesses being tampered with:- It is pertinent to mention here, that the statements of some of the prosecution witnesses have been recorded by the investigating agency and others are yet to be recorded. The petitioner being a member of the defence force in BSF enjoys such status that he may influence the prosecution witnesses and dissuade them from deposing before the investigating agency or in the Court of law. The investigation is yet to be completed and there is reasonable apprehension that if the petitioner is enlarged on bail, he may influence the investigation and tamper the prosecution evidence.
(viii) Danger, of the course of justice being thwarted by grant of bail:- In view of the aforesaid discussion, it can be safely held, that a balance has to be struck between the "right to individual liberty" and "interest of the society" and no right can be absolute and reasonable restriction can be placed on it. The grant of bail depends upon the facts and circumstances of each case and it cannot be said that there is absolute rule that because a long period of imprisonment has expired, bail must necessarily be granted. It is profitable to reiterate here, that the petitioner was arrested on 18.10.2022 and at present he is lying in detention in judicial custody in District Jail Amphalla Jammu for the last almost more than one month. In view of the ratio of judgment rendered in a case titled "Rajesh Ranjan Yadav @ Pappu Yadav vs. CBI Through Its Director [AIR 2007 SC 451] Hon‟ble Supreme Court has held 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". Again, in a very recent judgment titled "Sudha Singh vs. the State of Uttar Pradesh", rendered by the Hon‟ble Supreme Court on 23 rd April, 2021 in Criminal Appeal No. 448 of 2021 [@ SLP (Crl.) No. 3577 of 2020], while expounding the concept of "personal liberty" vis-à-vis "interest of society" and while reversing/setting aside the order of Hon‟ble Allahabad High Court granting bail to the appellant/accused for the alleged commission of offences under Sections 120- B/302 IPC read with Sections 3/25 of Arms Act, the Hon‟ble Supreme Court held that "there is no doubt that liberty is important, even that of a person charged with crime but it is important for the courts to recognize the potential threat to the life and liberty of victims/witnesses, if such accused is released on bail" (Vide Para-
12). Applying the ratios of the judgments (supra) to the facts of the case in hand, the period of incarceration of more than one month of the petitioner in detention is 14 B.A No. 371/2022 not a ground for his enlargement on bail. There is every danger of the course of justice being thwarted, if the petitioner is enlarged on bail. Offence indicted against the petitioner is heinous and grave in nature and such type of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy. In the instant case, the petitioner has also claimed the bail on the ground that his wife is suffering from Bone Marrow Cancer/Myelodysplastic Syndrome since April 2022 and she needs regular blood transfusion. Respondents have meeted this argument on the strength that there are several members in the family of the petitioner to take care of his wife. Even in the bail application, petitioner has specifically averred that he has two sons, out of which one son namely Shubham Kala is being called by the respondents for investigation as being a co-accused, while other son of the petitioner is doing private business. It is apt to reiterate here, that the other son of the petitioner, who is a private employee can also look after and take care of his mother for her treatment. As per the investigation conducted so far, the I/O has recovered and amount of Rs. 69.00 lacs cash during multiple rounds of searches. Respondents/CBI in their response have submitted that it conducted searches at about seventy seven (77) locations in multiple States and UTs including Delhi, Haryana, Karnataka and Jammu & Kashmir and examined large number of witnesses and during the probe has arrested as many as twenty (20) people including the petitioner. It appears that the investigation is still in progress and incomplete. The investigating agency must be provided sufficient time to unearth the paper leak scam and bring the offenders to book. On these considerations and in view of the aforesaid discussion, I am of the considered opinion that at this stage when the investigation is yet to be completed, it is the fittest case, where bail ought not be granted and the petitioner too has failed carve out a strong case for bail in his favour. The bail application being misconceived under law is disallowed rejected and dismissed.
7. Disposed of accordingly.
(MOHAN LAL) JUDGE Jammu 30 .11.2022 Ram Krishan Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No