Arfat Ahmed Khan vs Union Territory Of J&K

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.

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.

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.

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.

Heard and perused the record meticulously.

The Constitution Bench of Apex Court in Sushila Aggarwal v. State (NCT of Delhi), reported in (2020) 5 SCC 1 has held:

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 â€" 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)

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.

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.