Chattisgarh High Court

Kamla Kant Alias K.K. Tiwari vs State Of Chhattisgarh on 2 November, 2022

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                                                                        NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                          Criminal Appeal No.1240 of 2022

     • Kamla Kant alias K.K.Tiwari, aged about 52 years, S/o Shri Ambika
       Prasad Tiwari, R/o 1 C, Maitri Vihar, Kohka, Bhilai, P.S. Supela,
       Distt.Durg (CG)

                                                                ---- Appellant

                                      Versus

     • The State Of Chhattisgarh through Station House Officer, P.S.
       Magarload, Distt-Dhamtari (CG)

                                                             --- Respondent

For Appellant : Mr.Kishore Bhaduri, Senior Advocate assisted by Mr.Anil Tiwari and Mr.Khulesh Sahu, Advocates For State : Mr.Adil Minhaz, Government Advocate For Objector : Mr.Devershi Thakur, Advocate

Hon'ble Shri Justice Sachin Singh Rajput

Order On Board

02/11/2022

This criminal appeal under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Special Act') has been filed by the appellant against the order dated 26.7.2022 passed by the Special Judge (SC/ST Act), Dhamtari, District-Dhamtari whereby it has rejected application under Section 439 CrPC in connection with the Crime No.124/2011, registered at Police Station- Magarload, District Dhamtari for the offence punishable under Sections 420, 467, 468, 471 and 120B of the Indian Penal Code (for short 'IPC') and Section 3(ix)(4) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Special Act').

2. Case of the prosecution, in brief, is that recruitment process was carried out by Janpad Panchayat, Magarload sometime in the year 2007 for appointment of Shiksha Karmi Grade-III in Janpad Panchayat, Magarload. At

the relevant point of time, the appellant was Chief Executive Officer and posted in Janpad Panchayat, Magarload. The appellant along with other co- accused hatched a criminal conspiracy and had given marks to the candidates on the basis of forged / invalid documents and thereby increased the marks of the candidates, who were not deserving for the said appointment and by this act, deserving candidates have not been given appointment and thereby committed the aforesaid offences. FIR was lodged on the complaint made by the objector sometime in the year 2011 and investigation was carried out.

3. Mr.Kishore Bhaduri, learned Senior Counsel assisted by Mr.Anil Tiwari and Mr.Kulesh Sahu, learned counsel for the appellant, submits that the appellant is innocent, he has not committed any crime and he has been falsely implicated being Chief Executive Officer of Janpad Panchayat, Magarload, whereas he was not the only person who was responsible for entire selection process and appointment of candidates as Shiksha Karmi Grade-III. He further submits that the due procedure as prescribed under the Chhattisgarh Panchayat Shiksha Karmi (Recruitment & Service) Rules, 1997 was followed and there were about 5000 applications received for appointment on about 172 posts. Thereafter, there was filtering process conducted by different committees. He also submits that there was Evaluation Committee. On the basis of marksheets and other testimonials submitted by the candidates and after filtration, a list was prepared and thereafter from 2-3 filtering process, ultimately selection list was prepared, which was subsequently approved by the Selection Committee which consists of 8 members and the present appellant was ex-officio Secretary of that Committee. He submits that the police has not collected any evidence to connect the present appellant with the aforesaid crime and there is no evidence on record to suggest that the present appellant hatched a criminal conspiracy with other co-accused. He also submits that FIR was registered sometime in the year 2011 on the basis of complaint of unknown person and for last 4 to 5 years, there was no complaint whatsoever levelled by any candidate whose candidature was not considered or accepted by the Committee. The complainant with an ulterior motive has lodged the report, which has no basis and any substance. He submits that during the course of

investigation, the appellant was posted at different places and he has been cooperating with the investigation and sometimes his statement was also recorded, which goes to show that the appellant has never absconded as he is a Government servant. He submits that there was no departmental enquiry conducted with regard to the allegations levelled against the present appellant, neither he was given any charge-sheet nor punished in departmental proceedings. He further submits that charge-sheet has already been filed, investigation is complete and there are about 89 witnesses as projected in the charge-sheet and charge-sheet is running into pages and most of the evidences are in the form of documents. He also submits that the appellant is arrested on 19.7.2022 and during all these years, the police did not make any effort to arrest the present appellant. The appellant is permanent resident of Bhilai, he is Government servant and there is no possibility of being absconding or fleeing from the trial or tempering with the evidence. He submits that application of the present appellant may be considered in light of the fact that pre-trial detention could not serve any logical purpose and therefore, the application deserves to be allowed. In support of his contention, learned Senior Counsel relies upon the judgment of the Supreme Court in the matter of Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40 (paras 21, 22 & 23) and also relies upon recent judgment of the Supreme Court in the matter of Satender Kumar Antil v. Central Bureau of Investigation & Another reported in 2022 SCC OnLine (SC) 825 (paras 6, 11, 18, 67, 68 & 73).

4. On the other hand, Mr.Adil Minhaz, learned Government Advocate for the respondent/State, opposes the appeal and submits that allegation against the present appellant is very serious. He further submits that initially in 2007 selection process was carried out by Janpad Panchayat, Magarload for appointment on the post of Shiksha Karmi Grade-III and the present appellant was Chief Executive Officer of Janpad Panchayat, Magarload and from his signatures, about 172 candidates have been given appointment on different dates and some of them who are not deserving candidates their marks have been increased during evaluation by the present appellant and other co-accused persons. There was a Evaluation Committee consisting of 4 persons including the present appellant and the duty of this Committee was

to evaluate and give weightage to the candidates on the basis of their testimonials and other relevant documents. This Committee headed by the present appellant used certain forged marksheets and on the basis of those forged marksheets, marks were given to undeserving candidates. Likewise, in spite of the fact that no proper documents were attached with the application forms, marks were alloted to those candidates and thereafter, a list was prepared containing the signatures of the present appellant. These signatures and admitted signatures of the present appellant were sent to hand-writing expert and the report so received indicates that signatures on tabulation sheet and admitted signatures are one and the same. Therefore, prima-facie there is a case made out against the present appellant that a list containing undeserving candidates, giving marks on the basis of forged and fabricated documents and without any proper documents has been prepared by the present appellant. Thereafter the tabulation sheet was sent for Selection Committee and there are total 8 members of the Selection Committee, which consists of Standing Committee of the General Administration of Janpad Panchayat, Magarload which consists of the President and members of Janpad Pachayat and the present appellant being Chief Executive Officer was ex-officio Secretary of that Committee. Thereafter the approval of said Committee was sought and appointment orders were issued by the present appellant. Investigation was carried out and certain appointments of the selected candidates have also been cancelled. He however fairly submits that in appointment orders of the selected candidates, there is mentioning of the fact that if any of the documents appended with the application form is found to be forged and fabricated, their appointment orders may be cancelled. He submits that sanction for prosecution against the present appellant being a Government servant has also been granted by the State and same is in part of the charge-sheet. He fairly submits that investigation was started in the year 2011 and statement of the present appellant was also recorded. He submits that punishment for Section 3(ix)(4) of the Special Act is minimum 6 months and maximum 5 years, for offence under Section 420 of the IPC, maximum sentence is 7 years and for offence under Section 467 of the IPC, maximum sentence is life imprisonment or 10 years. Therefore, looking to the seriousness of the allegations and the punishment prescribed under the

offences, the application may be rejected. However, he could not dispute the fact that there are about 89 witnesses in the charge-sheet as projected in the charge-sheet and charge-sheet runs into so many pages.

5. Mr.Devershi Thakur, learned counsel for the objector, vehemently argued that from the material collected so far and evidences brought by the prosecution, prima facie case is made out against the present appellant. He submits that the appellant and the State were in hand in glove, therefore, no action was taken earlier and ultimately, the objector filed writ petition before this Court in which the State has also filed reply in which it has been stated that the present appellant was absconding. Therefore, the submission of learned Senior Counsel that the present appellant has cooperated with the investigation is not correct. He further submits that the effect of the scam is that undeserving candidates have been appointed and deserving candidates are running from pillar to post and their rights have been jeopardized by the action of the present appellant and other co-accused. He also submits that other co-accused are still not arrested, charge-sheet has been filed only against the present applicant, FIR was lodged in the year 2011 and for 11 years, the State could not complete the investigation and could not arrest the present appellant, which goes to show that the present appellant is very influential person and if in the event bail being granted, he would temper with the prosecution witnesses. He submits that some FIR's have been registered with regard to the similar recruitment process in which certain persons have been arrested, they were put to trial and some of them have been convicted and appeals of some of them stood dismissed and revisions are pending. However, learned counsel for the objector could not persuade this Court about the relevancy of those proceedings with the present crime. He submits that from one complaint, two different FIR's were registered and in earlier FIR bearing Crime No.123/2011, there was conviction against those persons. Therefore, there is all possibility that the present appellant would also be convicted.

6. At this stage, learned Senior Counsel submits that before the final selection list is prepared, objections were invited from the public at large and after receiving those objections from various candidates and after dealing it

with proper appreciation, final selection list was prepared and no report for almost four years was lodged by anybody in this regard to any scam so- called committed by the present appellant and other co-accused persons. He further submits that there is no evidence of any conspiracy and even original marksheets have not been seized to suggest that marksheet which was produced is forged. He further submits that the appellant has never given any admitted signature which could be tallied with the signature in the tabulation sheet seized by the investigating agency. Therefore, even if, there is any report of the hand-writing expert, that would not be admissible in evidence because after the appellant was arrested, he has not given any admitted signatures. Lastly, he submits that there is nothing on record that by hatching conspiracy and giving appointments to undeserving candidates, any monetary benefit has been derived by the present appellant.

7. I have heard learned counsel for the parties, considered their rival submissions and also also gone through the documents appended with appeal.

8. The parameters with regard to grant of bail have been reiterated by the Hon'ble Supreme Court in catena of decisions. The Hon'ble Supreme Court in Sanjay Chandra (supra) was considering a case of 2G Spectrum Scam and it has been held as under:-

"21.In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duty tried and duly found guilty.

22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of

any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."

9. Likewise, recently the Supreme Court in the matter of Satender Kumar Antil (supra) held as under:-

"6. The word 'trial' is not explained and defined under the Code. An extended meaning has to be given to this word for the purpose of enlargement on bail to include, the stage of investigation and thereafter. Primary considerations would obviously be different between these two stages. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the Court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors.

11. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again on the touchstone of Article 21 of the Constitution of India.

18. The position in India is no different. It has been the consistent stand of the courts, including this Court, that presumption of innocence, being a facet of Article 21, shall inure to the benefit of the accused. Resultantly burden is placed on the prosecution to prove the charges to the court of law. The weightage of the evidence has to be assessed on the principle of beyond reasonable doubt.

67. The rate of conviction in criminal cases in India is abysmally low. It appears to us that this factor weighs on the mind of the Court while deciding the bail applications in a negative sense. Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On

the contrary, an ultimate acquittal with continued custody would be a case of grave injustice.

68. Criminal courts in general with the trial court in particular are the guardian angels of liberty. Liberty, as embedded in the Code, has to be preserved, protected, and enforced by the Criminal Courts. Any conscious failure by the Criminal Courts would constitute an affront to liberty. It is the pious duty of the Criminal Court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos. A criminal court must uphold the constitutional thrust with responsibility mandated on them by acting akin to a high priest.

73. In conclusion, we would like to issue certain directions. These directions are meant for the investigating agencies and also for the courts. Accordingly, we deem it appropriate to issue the following directions, which may be subject to State amendments.:

a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.

b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail.

d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No.7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No.109 of 2020, to comply with the mandate of Section 41A of the Code.

e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.

f) There needs to be strict compliance of the mandate laid down in the judgment of this Court in Siddharth (supra).

g) The State and Central Governments will have to comply with the directions issued by this Court from

time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.

h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.

i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.

j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders.

k) Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.

l) All State Governments, Union Territories and High Courts are directed to file affidavits/status reports within a period of four months."

10. From the law laid down by the Hon'ble Supreme Court with regard to grant of bail, parameters are fixed. The first parameter which requires consideration by this Court is that whether in the event of grant of bail, the possibility of the present appellant fleeing from the trial or absconding is there or not. As submitted by learned Senior Counsel for the appellant, he is working as Government employee from the year 1999 and till his arrest, he was posted in various places in the State of Chhattisgarh.

11. This fact could not be disputed by the State Counsel that he is Government employee and he has been posted in various places during these time. Apart from this, as submitted by learned Senior Counsel, he is resident of Bhilai within the territorial jurisdiction of the State of Chhattisgarh.

In the considered opinion of this Court, the possibility that he being fleeing from the trial is remote.

12. Second aspect is with regard to tempering with the evidence or influencing the witnesses. That has to be looked into by this Court.

13. FIR was lodged in the year 2011. Investigation was carried out for almost 11 years and during the course of investigation, there is no clinching evidence to suggest that the appellant has tempered with any of the witnesses or he is not cooperating with investigation.

14. Learned counsel for the objector however submitted that the appellant is in hand in glove with the State, but this Court has to see now the appellant has been arrested and he is in pre-trial detention.

15. The charge-sheet so filed and the evidence so collected by the prosecution still requires to test before the trial Court and the prosecution is required to prove the case against the present appellant beyond reasonable doubt. The appellant is in jail since 19.7.2022, charge-sheet has already been filed as there are about 89 witnesses, charge-sheet is also running into pages and majority of the evidences are in documentary shape.

16. Considering the law laid down by the Supreme Court in the above- stated judgments, taking into consideration the facts and circumstances of the case and detention period of the appellant, this Court is persuaded to allow the instant criminal appeal. Accordingly, the instant appeal is allowed and the order dated 26.7.2022 passed by the Special Judge (SC/ST Act), Dhamtari, District-Dhamtari is set aside. It is directed that the appellant shall be released on bail on his furnishing a personal bond in the sum of Rs.1,00,000/- along with one surety for the like amount to the satisfaction of the trial Court on the conditions that-

a) he shall not leave India without prior permission of the Court concerned.

b) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case.

c) He will appear before the trial Court on each and every date until exempted.

d) He will not temper with evidence or influence any prosecution witnesses.

It is made clear that this Court has not expressed any opinion on merits of the case. Any violation of the above stated conditions would give a right to the State & objector to move for cancellation of bail.