Mohd. Saleem vs State Of H.P
2023 Latest Caselaw 5581 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) Nos.829 and 971 of 2023

Decided on: 11th May, 2023

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    1.      Cr.MP(M) No.829 of 2023
    Mohd. Saleem                                                                          .....Petitioner





                                                       Versus

    State of H.P.                                                                      .....Respondent

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    2.      Cr.MP(M) No.971 of 2023


    Ainan Ahmad                                                                           .....Petitioner


                                                       Versus

    State of Himachal Pradesh                                     .....Respondent

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Coram

Ms. Justice Jyotsna Rewal Dua, Judge

Whether approved for reporting? 1

For the Petitioner(s): Mr. Kulwant Singh Gill, Advocate, in Cr.MP(M) No.829 of 2023.

Mr. Amit Singh Chandel, Advocate, in Cr.MP(M) No.971 of 20213 For the Respondent: Ms.Seema Sharma, Deputy Advocate General.

SI Tek Chand, I.O. Police Station Batotiwala, present with record.

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Whether reporters of print and electronic media may be allowed to see the order?

    Jyotsna Rewal Dua, Judge

                 Both    these       petitions    arise      out     of     FIR




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No.175/2020, dated 15.12.2020, registered under Sections

420, 465, 467, 468, 471 and 120B of the Indian Penal Code

(IPC) and Section 66 of the Information Technology Act, at

Police Station Barotiwala, District Solan. The petitioners in

both these petitions have prayed for their enlargement on

regular bail. Being inter-connected and arising out of the

same FIR, these petitions are taken up together for

adjudication.

2. Heard learned counsel for the parties and gone

through the status report and record produced by the

respondent.

3. Briefly, the facts of the case are that: -

3(i). A complaint was made to the Superintendent of

Police, Baddi, by the Registrar, IEC University Kallujhinda,

Tehsil Baddi, District Solan, about the use of fake website

domain name www.iecuniversity.org in an illegal and

unauthorized manner. Complainant submitted that a

company named Ample Themes illegally created the

above website using IEC University logo, which is the

clone of official website of IEC University, i.e.

www.iecuniversity.com. It was also stated that in response

to the complainant's objections sent through letter dated

15.11.2019, the above named company replied that it was

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only a mock drill and the same would be removed. However,

the company did not stop continuing with the illegal acts,

rather the fake website also started showing data of

students. The complainant apprehended that the company

in question was practising deceit upon people by selling

fake degrees and maligning the reputation of the

complainant-Institution. On the basis of this complaint, the

FIR was registered on 15.12.2020.

3(ii). Investigation revealed that domain name

www.iecuniversity.org was registered through website

Godaddy.com on 11.09.2019 on payment. The payment was

made using e-mail [email protected] On tracking

Internet Protocol (IP) address, it was found that Internet

Service Provider (ISP) for the same was Excitel Broadband

Private Limited, New Delhi.

3(iii). Further investigation revealed that

[email protected] was used by one Bharti of

Govindpuri, Kalkaji, New Delhi, whose user ID was

'bharti1262'. The police team visited this address. Mohd.

Saleem (petitioner in Cr.MP(M) No.829 of 2023) and Bharti

were found present at the spot and internet router/modem

with MAC address was recovered from them, through which

they used the internet of Excitel Company. Mohd. Saleem

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revealed that Bharti was his business partner and they had

availed the services of Ainan Ahamed (petitioner in

Cr.MP(M) No.971 of 2023) to create fake website of IEC

University.

3(iv). Police team visited the residence of Ainan

Ahamed at Noida and recovered 376 blank and 5 filled

mark-sheets, 270 Holograms of IEC, Certificates from 78

Universities, cash amount of Rs.2,73,000/-, 165

stamps/seals, six stamp pads, two laptops and one mobile

phone from him. During investigations, Ainan Ahamed,

Mohd. Saleem and Bharti statedly disclosed that they had

prepared fake website of not only the complainant-IEC

University, but of various other educational institutions and

had distributed fake degrees, certificates and mark-sheets

in different States throughout the country. The above three

accused including the bail petitioners were arrested on

04.02.2021.

3(v). During custodial interrogation, Ainan Ahamed

statedly disclosed that he got fake degrees, diplomas and

certificates printed through one Amjad S/o Sh. Haidar,

resident of Shaheen Baag, Delhi. He also statedly disclosed

that address and logo of IEC University were provided by

one Hashnoor. Later on, it turned out that his real name

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was Manish Kumar, resident of Fazilka, Punjab. Manish

Kumar statedly ran a coaching institute at Fazilka and had

disclosed his name as Hashnoor to Ainan Ahamed.

Investigation revealed that Manish Kumar was involved in

similar business of selling fake degrees. He was arrested on

08.02.2021 from Fazilka and fake mark-sheets, which he

got prepared from Ainan Ahamed, were recovered from him.

Certain other incriminating articles were also recovered

from him.

3(vi). During investigations, Ainan Ahamed got

recorded his statement under Section 27 of the Indian

Evidence Act that he ran the fake degree racket for quite

some time. With the help and connivance of other accused

persons, he got prepared about 25 fake websites of different

universities. Using these websites and also using SMSs

through mobile phone etc., he used to contact small

coaching centres located in different States throughout the

country, alluring them for fake degrees and got these fake

degrees/mark-sheets printed by Amjad.

3(vii). Money received from the sale of fake mark-

sheets and fake degrees was used to be received in the

bank account of one Archana Singh, resident of Noida. As

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per the status report, investigation revealed transactions

running into crores of rupees in the said bank account. All

the accused persons used to do work in lieu of money. Said

Archana Singh was arrested on 14.03.2021.

3(viii). During investigations, Mohd. Saleem provided

details of 32 fake websites allegedly got prepared by him at

the instance of Ainan Ahamed with help of other accused

persons. He also provided the backup data of 19 fake

websites, which contained PHP files, student/subject

details, screenshots of posts, e-mail backup and database

etc.

3(ix). In view of the fraud and deceitful acts

committed by the petitioners in preparing and selling fake

and fictitious degrees/mark-sheets of various educational

institutions/universities throughout the country by using

various fake websites, the Superintendent of Police, Baddi,

District Solan requested the Inspector General of Police,

South, Shimla to handover the further investigation to the

State Intelligence Department.

4. Learned counsel for the petitioners submitted

that investigation in the matter is already complete. Challan

stands presented before the Court of competent jurisdiction

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way back on 01.04.2021 and the trial is underway. Despite

repeated orders passed by this Court in different bail

petitions moved by the petitioners and other co-accused

persons, the respondent has not been able to render full

cooperation and assistance for speedy conclusion of trial.

Learned Deputy Advocate General opposed the

bail petitions. She contended that serious allegations have

been levelled against the petitioners. There is sufficient

evidence available on record against them of creating many

fictitious domains and fake websites of different universities

& various educational institutions throughout the country.

Using these fictitiously created domains and fictitiously

created websites, the petitioners have duped the students

as well as sold fake diplomas/degrees/mark-sheets on the

domain of these universities and in this process, the

petitioners while maligning the reputation of the

universities/educational institutions, have illegally earned

huge money. Learned Deputy Advocate General further

submitted that trial is now underway and four witnesses

remained to be examined. Therefore, at this stage, the

petitioners may not be released on regular bail.

5. Observations

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5(i). Cr.MP(M) Nos. 718 and 705 of 2021 previously

filed by the petitioners, respectively, were dismissed on

merits vide order dated 18.05.2021 as it was projected on

behalf of the respondent-State that:- the matter was still

being investigated from various angles; that it was the case

of fake degree racket of alarming magnitude; racket of this

size cannot be a handy work of few; in all probability, there

would be involvement of various others; that request has

been made to the State Intelligence Department to come

into picture for further investigation.

However, the record produced by the respondent

shows that no further investigation of the nature projected

earlier was carried out by the respondent after the passing

of order dated 18.05.2021. Police report under Section 173

Cr.PC was presented on 01.04.2021 and supplementary

challan was also presented on 06.05.2021. No further

investigation was carried out by the investigating agency.

The ground on which previous bail petitions preferred by

the petitioners were dismissed has lost its efficacy.

5(ii) Cr.MP(M) No. 1976 of 2022 was another bail

petition moved by one of the petitioners herein. Taking note

of the status report filed in that petition, which indicated

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that 13 prosecution witnesses had already been examined

and statements of 12 witnesses remained to be recorded,

for which purpose, the matter was stated to be listed before

the learned Trial Court on 12.10.2022 and also taking into

consideration the fact that the petitioners were behind the

bars since February 2021, the petitions were disposed of on

23.09.2022 as withdrawn with the hope and expectation

that the learned Trial Court shall make all endeavour to

conclude the trial as expeditiously as possible. It would be

appropriate to extract hereinafter the order dated

23.09.2022, passed in Cr.MP(M) No. 1976 of 2022 :-

"Status report stands filed.

2. The petitioners are accused in FIR No.175/2020 dated 15.12.2020 registered under Sections 420, 465,

467, 468, 471, 120B of the Indian Penal Code and Section 66 of the Information Technology Act at Police Station Barotiwala, District Solan, H.P., and

praying for enlargement on regular bail.

3. In terms of the status report, 13 prosecution witnesses have already been examined in the learned Trial Court and statements of remaining 12 witnesses are yet to be recorded. The matter is stated to be listed before the learned Trial Court on 12.10.2022 for the said purpose.

4. Considering that the evidence in the matter is going on, Mr. Manohar Lal Sharma and Mr. Pavinder, learned counsel for the respective petitioners do not press these petitions and pray for withdrawing the same at this stage with liberty to move afresh, at an

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appropriate stage, in accordance with law. Prayer being

innocuous has not been opposed by learned Assistant Advocate General. Accordingly, the petitions stand dismissed as withdrawn with leave and liberty as

prayed for. However, keeping in view the fact that the petitioners are behind the bars since February 2021, it is hoped and expected that the learned Trial Court shall make endeavour to conclude the trial expeditiously.

Registry is directed to supply a copy of this order to the learned Trial Court. Pending miscellaneous application(s), if any, shall also stand disposed of."

Notice in the present petitions was waived by

the respondent on 03.04.23 and 21.04.2023 respectively.

Taking note of the averments made in the status report,

following order was passed in these petitions on

04.05.2023: -

"Ms. Seema Sharma, learned Deputy Advocate

General states that the prosecution is left with examination of two cited civil and two police officials. she further submits that in case the two cited civil

witnesses do not appear on the next date fixed before the learned Trial Court on 10.05.2023, they will be given up. Sue also submits that the two remaining police officials, who are left to be examined, though have not been served, however, keeping in view the need for expeditious trial, would be examined by the prosecution before the learned Trial Court on the

aforesaid date. She prays for taking up the matter on 11.05.2023.

As prayed for, list on 11.05.2023."

Today, when the bail petitions were taken up,

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learned Deputy Advocate General placed on record fresh

status report dated 11.05.2023. As per this status report,

no PWs could be examined in the Court on 10.05.2023.

One of the police official was stated to be bedridden and

admitted in hospital at Delhi and other police official was

stated to be on leave. So called independent witness

Naveen is also yet to be examined. As per the status report,

the respondent is not even aware of the address of his

witness. The 4th witness is also stated to be bedridden.

Learned Deputy Advocate General submitted that the

prosecution does not intend to give up any of the remaining

witnesses as testimonies of all these four witnesses are

essential for the prosecution. This submission of learned

Deputy Advocate General is at variance to the statement

made before this Court on 04.05.2023 (extracted earlier).

5(iii) SLP (Crl.) No. 915 of 2023 (Mohd Muslim @

Hussain Vs. State (NCT of Delhi) was decided on

28.03.2023. Petitioner therein facing charge under Section

29 of the Act and suffering incarceration for over seven

years was granted bail on account of delay in trial. Hon'ble

Court inter-alia reiterated that when stringent provisions

are enacted, curtailing the provisions of bail and restraining

judicial discretion, it is on the basis that investigation and

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trials would be concluded swiftly. Pronouncements in

(2021) 3 SCC 713 (Union of India V. K.A. Najeeb) and

(2022) 6 SLR 382 (Vijay Madan Lal Chaudhary Vs

Union of India) were also observed wherein it was

concluded that statutory restrictions like "section 43-D(5) of

UAPA cannot fetter a Constitutional Court's ability to grant

bail on ground of violation of fundamental right" ..... "If the

Parliament provides for stringent provision of no bail unless

the stringent conditions are fulfilled, it is the bounden duty

of the State to ensure that such trials get precedence and

are concluded within a reasonable time at least before the

accused undergoes detention for a period extending up to

one and half of the maximum period of imprisonment

specified for the concerned offence by law. (2022) 10 SCC

51 (Satender Kumar Antil Vs. CBI) was also considered

where prolonged incarceration and inordinate delay

engaged the attention of Court vis-à-vis several enactments

including Section 37 of NDPS Act. Some of the relevant

paras from Mohd. Muslim's case (supra) are as under:-

"2. Long back, in Hussainara Khatoon v. Home Secy., State of Bihar this court had declared that the right to speedy trial of offenders facing criminal charges is "implicit in the broad sweep and content of Article 21 as interpreted by this Court". Remarking that a valid

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procedure under Article 21 is one which contains a

procedure that is "reasonable, fair and just" it was held that:

"Now obviously procedure prescribed by law for depriving a person of liberty cannot be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does

not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21.

There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably r expeditious trial, is an integral and essential part

of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a

long delayed trial in violation of his fundamental right under Article 21."

3. These observations have resonated, time and again,

in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar and Abdul Rehman Antulay v. R.S.

Nayak; in the latter the court re-emphasized the right to speedy trial, and further held that an accused, facing

prolonged trial, has no option:

"The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the

said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial."

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4 to 15.......................

16. In the most recent decision, Satender Kumar Antil v. Central Bureau of Investigation prolonged incarceration

and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section

436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973

would apply:

"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it

clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision.

For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the

liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not

be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."

5(iv) In view of the fact that two of the remaining

prosecution witnesses are bed ridden and the prosecution

has now no clue about the address of the third witness (so

called independent witness), and prosecution does not

intend to give up any of its witnesses, it is not likely that

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the trial can be concluded in near future. The petitioners

are behind the bars w.e.f. 04.02.2021. They have completed

more than two years in custody and are facing accusation

under Sections 420, 465, 467, 468, 471 and 120B IPC.

While protecting the interest of the prosecution,

individual liberty of the petitioners is also to be kept in mind.

In case despite repeated directions of the Court emphasizing

need of speedy trial, the prosecution is unable to conclude

its evidence, the petitioners cannot be made to suffer.

For all the above reasons, the bail petitions are

allowed. Petitioners are ordered to be released on bail in

the aforesaid FIR on their furnishing personal bond in the

sum of Rs.1,00,000/- (Rupees One Lakh only) each with

two local sureties each in the like amount to the

satisfaction of the learned Trial Court having jurisdiction

over the Police Station concerned, subject to the following

conditions: -

(i). The petitioners shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii). The petitioners shall not tamper with the evidence or hamper the investigation in any manner whatsoever.

(iii). The petitioners will not leave India without prior permission of the Court.

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(iv). The petitioners shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any

person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(v) The petitioners shall not contact, threaten or

intimidate the victim/complainant and their family members in any manner whatsoever.

(vi). In case the petitioners are put to trial, then

they shall attend the trial on every hearing, unless exempted in accordance with law.

(vii). Petitioners shall inform the Station House Officer of the concerned police station about their place of residence during bail and trial.

Any change in the same shall also be communicated within two weeks thereafter. Petitioners shall furnish details of their

Aadhar Cards, Telephone Numbers, E-mails, PAN Cards, Bank Account Numbers, if any.

In case of violation of any of the terms &

conditions of the bail, respondent-State shall be at liberty to

move appropriate application for cancellation of the bail. It

is made clear that observations made above are only for the

purpose of adjudication of instant bail petition and shall

not be construed as an opinion on the merits of the matter.

Learned Trial Court shall decide the matter without being

influenced by any of the observations made hereinabove.

With the aforesaid observations, the present

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petition stands disposed of, so also the pending

miscellaneous application(s), if any.

Jyotsna Rewal Dua Judge May 11, 2023

R.Atal