Arfat Ahmed Khan vs Union Territory Of J&K
2021 Latest Caselaw 69 j&K

            HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU
                            (Through Video Conference)

                                                       Reserved on :     19.01.2021
                                                       Pronounced on: 05.02.2021

                                                Bail App. No. 263/2020
                                                CrlM No. 1757/2020


Arfat Ahmed Khan                                       .....Petitioner/Applicant(s)

                 Through :- Mr. Ankush Manhas, Advocate

                v/s

Union Territory of J&K                                          .....Respondent(s)

Through :- Mr. Raman Sharma, AAG

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE (through Video Conference from High Court, Jammu)

Judgment

1. The present application has been filed by the petitioner seeking

bail in anticipation of his arrest in FIR No. 24/2020 dated 31.07.2020 of Police

Station, Crime Branch, Jammu for commission of offences under sections 465,

468 and 471 IPC. Earlier the petitioner was granted bail on 07.08.2020 by the

learned 2nd Additional Sessions Judge, Jammu (hereinafter to be referred as the

Sessions court) and the same was extended time to time and lastly the bail was

extended on 28.10.2020. After the status report was submitted by the Crime

Branch before the sessions court, the learned sessions court vide order dated

08.12.2020 dismissed the application of the petitioner for grant of bail in

anticipation of his arrest. The petitioner, as such, has filed the instant bail

application primarily and inter alia on the ground that the petitioner is innocent

and has not committed any offence. The petitioner was suspended by the

Director School Education but the said order was stayed by the coordinate

Bench of this Court in a petition filed by the petitioner bearing WP (C) No.

2464/2019 on 09.07.2019. It is further stated that the petitioner has also filed a

petition bearing CRM(M) No. 309/2020 for quashing of FIR (supra) and this

Court had issued notice in the said petition. The main ground raised by the

petitioner is that no offence is made out against the petitioner as the petitioner

has not forged any document and the petitioner had no role in procuring the

said documents because the petitioner has no access or approach to the

corridors of power of the Secretariat and if there is any procedural lapse in not

forwarding the Government order to the Director, the responsibility lies with

the concerned section of the Education Department in the Government, as such,

prayed that the petitioner be granted bail in anticipation of his arrest.

2. The respondent has filed the status report/objections in which it is

stated that after conducting the preliminary enquiry, a case FIR bearing No.

24/2020 for commission of offences under sections 465, 468 and 471 IPC

stands registered with Police Station, Crime Branch, Jammu against the

petitioner and some unknown persons on the allegations of preparing and using

fake and fictitious transfers/postings orders of the Lecturers in School

Education Department. The said FIR was registered on the receipt of a written

letter on 24.06.2019 from Mrs. Anuradha Gupta, Director School Education

Department, Jammu on the allegation that during scrutiny of transfers/postings

orders of Lecturers, the Department has come across number of fake and forged

transfers/postings orders, those included the Government order No. 171-Edu of

2019 dated 07.06.2019 in favour of the petitioner wherein the petitioner was

transferred from HSS Jakyas Doda to GGHSS, Kishtwar. It is further stated in

the objections that during the course of investigation it came forth that the

petitioner had produced fake transfer order No. 171-Edu of 2019 (supra) to

Principal GHSS Jakyas Doda on 12.06.2019 and he was relieved from GHSS

Jakyas Doda to Civil Secretariat Srinagar/Jammu, Education Deportment and

thereafter joined GGHSS Kishtwar on 13.06.2019 by producing another fake

relieving order of GHSS Jakyas Doda mentioning therein that he has been

relieved from GHSS Jakyas Doda to GGHSS Kishtwar. It is also stated in the

objections that the record collected so far reveals that the petitioner was never

appointed as lecturer in the department of Education Department and has

manipulated entry in the department through forged and fraudulent means and

has even managed to withdraw huge amount from Government exchequer

thereby causing loss to the Government exchequer and wrongful gain to

himself. It is further stated that during the course of investigation,

correspondence was made with Principal, Government Girls Higher Secondary

School, Kishtwar and Principal Government Higher Secondary School, Jakyas

Doda and in reply, Principal GGHSS, Kishtwar produced original application

of Arfat Ahmad Khan (petitioner) dated 13.06.2019 for joining vide

Government order No. 171-Edu of 2019 and relieving order dated 10.06.2019.

The Principal GHSS Jakyas, Doda also produced relieving order dated

12.06.2019 of the petitioner in compliance to the Government order No. 171-

Edu. of 2019. The Principal GHSS Jakyas, Doda also stated that he himself

gave an application to Arfat Ahmad Khan for his transfer from GHSS Jakyas to

Jammu and as such, he himself received a fake/forged transfer order. Statement

of the custodian of the Service Book of the petitioner has also been recorded in

which he has stated that Arfat Ahmed Khan (petitioner) has kept the Service

Book with him and did not deposit in the office and used to present the Service

Book as and when it was required for effecting some entry by the Principal and

take away after making the necessary entry and at present also the Service

Book was in possession of Arfat Ahmed Khan. During the further course of

investigation, it surfaced that accused Arfat Ahmed Khan joined Government

Higher Secondary School, Basoholi on 03.04.2012 and rendered his services up

to 15.05.2017. Statements of the then Principals were also recorded in the

instant case who stated that the accused Arfat Ahmad Khan had never joined

Government Higher Secondary School, Basohli and was neither transferred nor

relieved from this School during the period 03.04.2012 to 15.05.2017. It is

further stated that the record collected pertaining to the so called lecturer, Arfat

Ahmad Khan reveals that the petitioner was never appointed as lecturer in the

Department of School Education and he managed his entry into the Department

through fraudulent means and withdrew Rs. 32,85,079/- from GHSS Jakyas

Doda, thus, causing huge loss to the state exchequer. It also transpired from

investigation that Arfat Ahmed Khan again impersonated as Arfat Ahmed Mir

(Physics Lecturer) and made his entry in the HSS Bharat Doda by producing

fake transfer/LPC/Service Book/Duty Slip in the month of January, 2020 and

managed to withdraw salary up to September, 2020 mentioning in Service

Book and orders that he has been relieved from Govt. Higher Secondary Bakshi

Nagar, Jammu. The statement of Principal HSS Bakshi Nagar, Jammu was also

recorded in the instant case and it was found that no such lecturer in Physics

namely, Arfat Ahmed Mir remained ever posted in the HSS Bakshi Nagar,

Jammu and was never relieved from that institution and even the signatures of

Principal of HSS, Bakshi Nagar appended on the Service Book are fake and

forged. The petitioner has also produced fake order /LPC/Duty Slip of DSEJ in

the name of Saleema Bano (mother of the petitioner) as HOD and managed to

withdraw the salary with effect from September, 2018 till April, 2019 from

GHSS Chili Ballesa, Doda amounting to Rs. 7,40,188/-. During the course of

investigation, it was found that the petitioner got salary and other allowances in

his account number maintained with J&K Bank, Jakyas. It is further stated that

in the writ petition challenging the order of suspension, the respondent is not

the party. The respondent has categorically stated in unambiguous terms that

the custodial interrogation of the petitioner is required to ascertain some

important facts and also there is apprehension that he may temper with the

evidence and also threaten the witnesses. It is averred that the petitioner has

never joined investigation and is absconding. The petitioner is stated to be

continuously changing his location to avoid his arrest.

3. Mr. Ankush Manhas, learned counsel for the petitioner has

vehemently argued that there is no allegation of committing any offence of

forgery against the petitioner and the false and frivolous FIR has been

registered against the petitioner. He further argued that as the petitioner was

granted interim bail in anticipation of his arrest by learned trial court, so the

petitioner deserves to be enlarged on bail by this Court also in anticipation of

his arrest.

4. Mr. Raman Sharma, learned AAG has reiterated the factual

aspects as detailed above and has vehemently argued that the petitioner has

never been appointed as a lecturer but despite that he had managed his entry

into the School Education Department on the basis of forged orders and has

even withdrawn the huge amount as salary as well as other emoluments to

which the petitioner was never entitled to. Mr. Sharma has vehemently argued

that the petitioner has never participated in the investigation despite the fact that

he was granted interim bail initially by the learned Sessions court.

5. Heard and perused the record meticulously.

6. The Constitution Bench of Apex Court in Sushila Aggarwal v.

State (NCT of Delhi), reported in (2020) 5 SCC 1 has held:

92. 1. Consistent with the judgment in Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] , when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

92.3. Nothing in Section 438 CrPC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of

investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified -- and ought to impose conditions spelt out in Section 437(3) CrPC [by virtue of Section 438(2)]. The need to impose other restrictive conditions, would have to be judged on a case-by-case basis, and depending upon the materials produced by the State or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

(Emphasis Supplied)

7. From the law laid down by the Apex Court it is evident that grant

or refusal of bail in anticipation of arrest, is a matter of discretion and the

discretion is to be exercised on the basis of seriousness of the allegations,

gravity of offence, role of the accused, chances of accused fleeing from justice,

tempering with the evidence etc. A perusal of the record reveals that

communication was made by Director School Education Jammu to Crime

Branch Jammu that during scrutiny of transfer/posting order she came across

with number of fake transfers/postings orders bearing different dispatch

numbers as well as dates and request was made for investigating the same.

Pursuant to which a preliminary enquiry was got conducted and thereafter, a

formal FIR bearing No. 24/2020(supra) for commission of offences under

sections 465, 468 and 471 IPC was registered. Initially the allegations against

the petitioner in the FIR were that the petitioner used fake and fraudulent orders

as genuine for the purpose of cheating the School Education Department.

However, during the course of investigation, it also transpired that the

petitioner has not only used the fake and forged transfer orders but has also

produced the fake relieving order and it also surfaced that the petitioner has

never been appointed as a lecturer in the School Education Department and by

resorting to fraudulent means, he has managed to gain entry in the School

Education Department. Not only this, the petitioner has even impersonated as

Arfat Ahmad Mir and made his entry in the GHSS, Bhararat, Doda by

producing fake transfer/LPC/Service Book/Duty Slip in the month of January,

2020 and managed to withdraw salary up to September, 2020. Besides there are

also allegations regarding the production of fake order in the name of his

mother Saleema Bano. There are serious allegations against the petitioner. The

petitioner has not been able to demonstrate before this Court that he has joined

the department as a Lecturer after due selection process and lack of explanation

on the part of the petitioner gives credence to the allegations against the

petitioner as also it is not the case of the petitioner that the FIR has been lodged

in order to settle the personal score by any person inimical to the petitioner. The

investigation is still at initial stage and the grant of anticipatory bail would

operate to obstruct the investigation. More so, from the order passed by the

learned trial court and also subsequent status report submitted by the

respondent before this Court, it is evident that the petitioner has never appeared

and cooperated with the respondent despite the fact that he was granted interim

bail in anticipation of arrest.

8. For all what has been discussed above, the petitioner has failed to

make out a case for grant of bail in anticipation of arrest, as such, the bail

application is dismissed.

(RAJNESH OSWAL) JUDGE

Jammu:

05.02.2021
Rakesh
                                  Whether the order is speaking:      Yes
                                  Whether the order is reportable:    No