Nachiketa Kapoor vs State
2012 Latest Caselaw 5406 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       BAIL APPLN. 1226/2012
+                        Date of Decision: 11th September, 2012

#    NACHIKETA KAPOOR                     ....Petitioner
!         Through: Mr. N.K. Kaul and Mr. Vikas Pahwa,
                   Sr. Advocates with Mr.Akshy Chandra
                   and Mr. P. Badrinath, Advocates.


                              Versus


$    STATE                                     ...Respondents
                 Through: Mr. Sidharth Luthra, Additional
                          Solicitor General with Mr. Dayan
                          Krishnan, ASC and Ms. Devina
                          Sehgal Advocate

     CORAM:
*    HON'BLE MR. JUSTICE P.K.BHASIN

                   ORDER

P.K.Bhasin,J:

The petitioner seeks anticipatory bail since he apprehends his arrest in a criminal case registered against him by the Economic Wing of Delhi Police on 30.07.2012 under Sections 420/467/468/471/120-B of the Indian Penal Code on the

allegation that he had got a job in the Organising Committee of the Commonwealth Games held in the country in 2010 by producing a forged graduation degree of Delhi University.

On 30.08.2012 this Court had after hearing submissions from both sides and noticing the background of the case passed an order of which the relevant part is being re-produced below:-

" Here is a gentleman who has been the most wanted person in many important Ministries/Departments of the Government of India and has been the blue-eyed child of many at the helm of affairs in those Ministries/Departments which included even the National Security Council. They all have been wanting to associate him with their Ministries and Departments. He has been the Officer on Special Duty(OSD) in the Ministry of Tourism, Government of India and then as desired by the then Minister of that Ministry he was made the private secretary(PS) of the Minister. It appears that this man has been playing different games and had been getting rewarded also for playing those games successfully and his vast experience in playing the games successfully in different Government Departments got him an entry into the Commonwealth Games also, a mega sports event which was held recently in our country........Though the country won many laurels for holding the Commonwealth Games but after the curtains were drawn on that event a large scale of frauds committed by many persons associated with that event surfaced. . ........................

On 30th July, 2012 the Crime Branch registered an FIR against the applicant-accused under Sections 420/467/468/471/ 120-B IPC on the allegations that he had managed to get a job in the Organising Committee of Commonwealth Games in July,2009 by submitting along with his resume a photocopy of a degree of Delhi University which showed that he had graduated from Delhi University in the year 1994 but it had been found

that the degree on the basis of which he was claiming himself to be a graduate was a forged degree........................

Mr. Neeraj Kishan Kaul, learned senior counsel appearing for the applicant-accused, strongly argued that no case whatsoever has been made out for the arrest of the applicant-accused since the police claims to have already found that he had at the time of joining the Organising Committee of Commonwealth Games submitted a photocopy of a degree purporting to have been issued by the Delhi University showing that he had graduated from Delhi University in the year 1994 but actually he was a school drop-out and graduation degree being used by him was a forged and bogus document. Thus, Mr. Kaul submitted, no custodial interrogation of the applicant- accused was required to be done by the police and he was sought to be arrested for oblique motives. It was also submitted that even otherwise this is a case where the only allegation against the applicant-accused was that he had got employment in the Organising Committee of the Commonwealth Games by falsely representing that he was a graduate from Delhi University and submitting along with his resume a forged document purporting to be a photocopy of his graduation degree issued by Delhi University and so this was not such a serious case, which too had been registered against him after two years of his resigning from the Organising Committee, that his arrest was required as well as justified.....................

The applicant-accused has also claimed in this application that the FIR against him had been registered at the instance of an „influential politician whom the applicant was working earlier. He was being harassed ever since he left her employment‟ At another place in the application it has also been averred that "This time she got the forged documents planted against the applicant and got this case registered through the OC, CWG."............In the bail application the applicant-accused has also pleaded that there was no occasion for him to have produced any forged degree while getting employment in the Commonwealth Games Project since he was never required to produce any degree and in any event he had

actually graduated from Open University in Karnataka.....................

Opposing this bail application strongly Mr.Siddhartha Luthra, learned Additional Solicitor General submitted that............ it is not that the applicant-accused had managed to get employed with the Organising Committee of the Commonwealth Games by producing forged documents showing him to be a graduate from Delhi University while in fact he was a school drop-out but earlier to that in the year 2004 he had gained entry into the office of the National Security Advisor, which takes care of the security of the country, and at that time also he had produced the same forged documents which showed him to be a graduate from Delhi University. Subsequently he left the office of the National Security Advisor and gained entry in the Ministry of Tourism and then in the Ministry of Women and Child Development as Officer on Special Duty to the then Minister. Learned Additional Solicitor General further contended that the applicant-accused had also got an endorsement of ECNR(Emigration Check Not Required) in his passport, which endorsement is made only in case of persons who possess some minimum qualification, by producing the same fake graduation degree. Mr. Luthra also submitted that this background of the applicant-accused clearly shows that he is such a big fraud that he could manage his entry into many Government Departments, including the National Advisory Council which takes care of the security of the nation......... and now that all his frauds have come to light the police needs to go very deep into the matter to find as to how this school drop-out could manage to gain entry into many Government Departments and also as to who were the public servants who had helped him in getting Government jobs and for what motives............................

It was also submitted by the learned Additional Solicitor General that it is not that only the applicant‟s role was being investigated by the police but roles of all other persons, howsoever high position they might be occupying or might have occupied, with whom he had been associated in different

Ministries and Departments of the Government shall be probed.... Mr. Luthra submitted that the allegations against the accused are very serious and it has become a matter of serious concern as to how all this has been happening in various Ministries/Departments of the Government the truth has to be found out at any cost and so custodial interrogation of the applicant-accused is must as during that interrogation the police is likely to reach upto other people also involved and associated with him in the commission of the serious offence of gaining Government jobs fraudulently and thereby causing huge loss to the public exchequer......................".

Then after noticing this background of the case and the submissions made from both sides this Court had observed as under:-

"However, till date the police has not even approached anyone from the two Ministries of the Government where the applicant-accused had got himself appointed as an OSD to the Minister to find out as to on what basis he was given that appointment. The police has also not so far examined anyone from the office of the Organising Committee of Commonwealth Games to find out from there also as to how the applicant- accused had got job there and how it was being claimed that he had furnished forged documents. Similarly no body has been examined till date by the police to find out as to how he could get entry into the National Security Council. Nobody has been examined even to test the veracity of the allegation that the applicant-accused was indulging in human trafficking also as was being claimed by one Mohd. Younus Siddiqui. Police file also does not show that the investigating officer had brought on record the reasons for the arrest of the applicant-accused which had to be done as per the decision of the Supreme Court reported as (2011) 1 SCC 694(see para 88 of the judgment) and which reasons are to be considered by the Court at the time of hearing of bail application of the concerned accused.

So, considering all the facts and circumstances I am of

the view that before any final decision is taken as to whether the police should be permitted to arrest the applicant-accused or not, the investigating officer should first be called upon to bring on record the reasons which are prompting him to arrest the applicant-accused for his custodial interrogation and the police should also be given time to collect material from different ministries/departments wherever the applicant-accused had been working to find out by examining the persons who had been giving employment to him in those departments/ministries and thereafter a final decision shall be taken by this Court on this anticipatory bail application.............................."

Thereafter this Court had deferred the disposal of this bail application on merits for some days and fixed the matter for further consideration. When the hearing of the matter was taken up again the police claimed to have questioned many people, including the former Minister with whom the petitioner had worked as an OSD/PS, on various aspects of the matter.

The learned senior counsel Mr. Neeraj Kishan Kaul once again reiterated his submissions which he had already made before the order of 30th August,2012. Additionally it was also contended that even now the respondent has not brought on record the investigating officer‟s views as to why he was considering the arrest of the petitioner-accused imperative and as far as further investigation which the police claims to have carried out is concerned nothing has been brought on record to show as to what material has now been collected against the

petitioner after the order of 30th August,2012 of this Court and the petitioner cannot be kept in dark about that material and still expect him to justify grant of relief of anticipatory bail which he is claiming and, therefore, the police should be directed to file reply to this bail application supported by an affidavit and material which is sought to be used against the petitioner and simply on the basis of oral submissions made on behalf of the State by the learned Additional Solicitor General before 30th August as well as thereafter when it was informed to this Court that further investigation has also been done and there is sufficient material to justify the arrest of the petitioner and his custodial interrogation, this application should not be dismissed.

Learned Additional Solicitor General also maintained his earlier stand, noticed already, that this is a serious case which is being probed to find out as to how the petitioner could manage into various Ministries and Departments of the Government of India and since the witnesses examined now have claimed that the petitioner was given jobs only on his misrepresenting that he was a graduate from Delhi University further opportunity should be given to the police to carry out a deep probe for which custodial interrogation of the petitioner is imperative. It was also contended that these reasons which have been pressed into service are sufficient compliance of the directions of this Court

given on 30th August,2012 and further that the State cannot be compelled to file any written reply to the bail application and for the perusal of the material against the petitioner the police file is always available at the disposal of this Court which only can have access to that material.

After giving my anxious consideration to the entire matter I have come to the conclusion that this is not a fit case where the petitioner deserves the relief of anticipatory bail. As noticed already, it is the case of the investigating agency that it is not a simple case of forgery of a degree by the petitioner - accused to get jobs in various Government Ministries/Departments but, in fact, a large scale conspiracy is being probed to find out as to how could the petitioner - accused was obliged by so many public servants without whose blessings he could not walk into various Ministries/Departments of the Government of India simply by claiming that he was a graduate from Delhi University. Prima facie, it cannot be accepted that the petitioner would have been obliged by the Heads of various Ministries/ Departments while giving him jobs without misusing their authority as public servants. Section 120-B IPC stands invoked in the matter. The investigating agency(SIT) has been able to get hold of some records from the Ministry of Women and Child Development, Government of India showing that the

petitioner - accused was appointed as Private Secretary to the then Minister of that Ministry on 23rd June, 2006 and on the same day he had taken over also. The notification regarding his appointment as Private Secretary to the Minister of State, Ministry of Women and Child Development was, however, issued on 21st September, 2006 which apparently shows that the appointment of the petitioner - accused as the Private Secretary to the Minister was made before formal Presidential sanction. The investigating agency has also found out that the appointment of the petitioner - accused as OSD to the Minister of State, Ministry of Woman and Child Development was not approved by the Appointment Committee of the Government vide its office memorandum dated 19th February, 2008 and the said Committee had also directed that he should not be considered for any appointment of a sensitive nature. That decision of the ACC, prima facie, shows that it was being suspected that there was something wrong in the appointments of the petitioner - accused. Despite that the petitioner - accused managed to enter into the Organising Committee of the Commonwealth Games. All these aspects and such like other aspects have to be investigated.

This case involves allegations of very serious nature involving public servants who have been obliging the petitioner

- accused without following any kind of process or procedure which is to be followed before giving Government job to anyone. So, considering the gravity of the matter, this application is dismissed.

P.K. BHASIN, J

SEPTEMBER 11, 2012