Kuldeep Rao vs State of H.P.

Kuldip Singh, Judge

This judgment shall dispose of Cr. MP(M) No. 1003 of 2011and Cr. MP(M) No.1004 of 2011 both having arisen out of FIR No. 60 of 2011 dated 24.5.2011 registered at Police Station, East, Shimla, under Sections 420, 467, 468, 471 and 472 IPC. Cr. MP(M) No. 1003 of 2011 has been filed by Kuldeep Rao and Cr. MP(M) No. 1004 of 2011 has been filed by Shivender Batish both u/s 439 Cr. P.C.

Cr. MP(M) No. 1003 of 2011:

It has been stated that the prosecution case is that petitioner along with other accused had prepared a fake judgment of the High Court of Himachal Pradesh and a case has been registered at Police Station East, Shimla on 24.5.2011. The petitioner was arrested on 25.5.2011. He moved bail application u/s 437 Cr. P.C. and was released on bail on 28.5.2011 by the Judicial Magistrate 1st Class, Court No.1, Shimla. The High Court on its own motion cancelled the bail granted to the petitioner on 28.6.2011. The petitioner surrendered to the police on 2.7.2011. The petitioner remained in judicial custody till 18.7.2011.

On 18.7.2011 the petitioner was granted bail by the learned Sessions Judge, Shimla. The High Court took suo motu action against the order dated 18.7.2011 in Cr. MMO No. 130 of 2011 and the bail granted to the petitioner by the learned Sessions Judge was set-aside by the High Court on 16.8.2011. The petitioner filed Special Leave to Appeal (Crl.) before the Supreme Court against the order of the High Court which was dismissed as withdrawn and the petitioner was given liberty to apply for bail before the appropriate Court. The petitioner surrendered before the learned trial Court on 17.9.2011 and since then he is in custody.

It has been stated that the petitioner is innocent. He has nothing to do with the commission of offence. There is not an iota of evidence against the petitioner.

The investigation in the case is over, report u/s 173 Cr. P.C. has been filed in the Court and nothing incriminating is required to be recovered from the petitioner. The detention of the petitioner in judicial custody would not advance the cause of justice in any manner. The petitioner is ready to furnish bail bonds in accordance with the directions of this Court. A prayer has been made for releasing the petitioner on bail.

Cr. MP(M) No. 1004 of 2011:

It has been stated that the prosecution case against the petitioner is that petitioner along with other accused had prepared a fake judgment of the High Court. On these allegations a case has been registered at Police Station East, Shimla on 24.5.2011. The petitioner was arrested on 3.6.2011 in the above FIR. The petitioner moved bail application u/s 437 Cr. P.C. before the learned Judicial Magistrate 1st Class, Court No.1, Shimla which was dismissed on 4.7.2011. The petitioner filed bail application before the learned Sessions Judge, Shimla which was allowed on 11.7.2011. The High Court took suo motu action against the order dated 11.7.2011 in Cr. MMO No. 127 of 2011, the bail granted to the petitioner by the learned Sessions Judge was set-aside by the High Court on 16.8.2011. The petitioner filed Special Leave to Appeal (Crl.) before the Supreme Court against the order of the High Court which was dismissed as withdrawn and the petitioner was given liberty to apply for bail before the appropriate Court. The petitioner surrendered before the learned trial Court on 17.9.2011 and since then he is in custody.

The petitioner has prayed bail in FIR No. 60 of 2011 on almost similar grounds as prayed by the petitioner in Cr. MP(M) No. 1003 of 2011.

The status report has been filed in Cr. MP(M) No. 1003 of 2011. It has been stated that during investigation Sections 472, 120-B IPC were added. The signatures, handwritings and admitted handwritings of the accused were taken including laptop, CPU, Pen drive and Cr. MMO No. 179 of 2010 Ritika Kapoor and Others vs. State of H.P. and Sent to FSL, Junga. The report dated 16.8.2011 has been obtained. Cr. MMO No. 179 of 2010 Ritika Kapoor and Others vs. State of H.P. was allegedly reserved on 13.12.2010 and decided on 18.12.2010, the copy was allegedly applied on 21.2.2011 which was submitted to the department by Kuldeep Rao on 25.2.2011 for necessary action. The accused continuously remained in contact with each other on their mobile phones.

Kuldeep Rao, his daughter Aditi Rao, Shivender Batish, his daughter Ankita Batish, Dinesh Kapoor, his daughter Ritika Kapoor, Duni Chand Yadav and his daughter Kritika Yadav are accused in FIR No. 140 of 2006 dated 27.6.2006 under Sections 406, 418, 120B IPC in CPMT case and the case is pending in the court of learned Chief Judicial Magistrate, Shimla. It has come in investigation that Dinesh Kapoor contacted Haresh Sood a practicing advocate in the High Court and after contacting Kuldeep Rao, Duni Chand Yadav and Shivender Batish on mobile phone met Haresh Sood on 27.10.2010 in Hotel Holiday Home, Shimla. Kuldeep Rao, Shivender Batish, Dinesh Kapoor and Haresh Sood were present in the meeting, fee of the advocate was settled including the mode of payment, some amount was paid to Haresh Sood.

The accused had alleged that they had signed power of attorneys in favour of the advocate but they are silent about the signing of power of attorneys by their daughters. The red ink handwriting on fake judgment dated 18.12.2010 is allegedly written by Haresh Sood. It has come in the investigation that after obtaining the copy of fake judgment the accused had been appearing in the CPMT case through their advocates on 28.12.2010, 14.3.2011 and 16.5.2011 but did not bring to the notice of the Court in CPMT case that the case against the accused in FIR No. 60 of 2011 who were also accused in FIR No. 140 of 2006 has been quashed by the High Court. This contradicts the innocence of the accused in FIR No. 60 of 2011 rather it shows their involvement in the case.

It has been stated that incomplete challan has been submitted in the court on 20.8.2011 against Haresh Sood, Shivender Batish, Dinesh Kapoor and Duni Chand Yadav under Sections 420, 467, 468, 472 and 120B IPC and against accused Kuldeep Rao under Sections 420, 467, 468, 471, 472 and 120B IPC. The investigation in the case continued as it could not be ascertained where the forged judgment was typed and printed. Aditi Rao, Kritika Yadav, Ankita Batish and Ritika Kapoor daughters of the accused were interrogated but they have shown complete ignorance of the case. This shows that the daughters of the accused were not aware of the case. It has been stated that on suspicion handwritings of Udey Ram, Clerk of Haresh Sood, Advocate were taken and report from FSL, Junga obtained and as per the report, he had also written on the fake judgment with blue ink. Udey Ram was arrested on 8.12.2011. Thus, there are now six accused in the case. It has been stated that the petitioners in conspiracy with Haresh Sood prepared the fake judgment. A prayer has been made for rejection of the bail applications.

I have heard the learned counsel for the petitioners and learned Additional Advocate General for the respondent and have also gone through the police file. It has been submitted by the learned counsel for the petitioners that till 13.12.2011 Kuldeep Rao has spent total 108 days in custody whereas Shivender Batish has spent 125 days. It has been submitted that investigation in the case is still continuing though report u/s 173 Cr. P.C. has been filed. There is every likelihood that investigating agency will file supplementary challan. It has been submitted that after the decision dated 16.8.2011 in Cr. MMO Nos. 127, 128, 129 and 130 of 2011 the circumstances have changed. The investigating agency has filed report u/s 173 Cr. P.C. The petitioners are already in detention for sufficient long time. The trial of the case will take some time. The Supreme Court has given liberty to the petitioners to approach the concerned Court. The submission has been made for releasing the petitioners on bail.

The learned Additional Advocate General has opposed the bail applications on the grounds that in substance there is no change of circumstance, the petitioners have committed serious offence and, therefore, they are not entitled to bail.

The learned counsel for the petitioners has submitted that the petitioners are innocent, they are victim of trust reposed by them in Haresh Sood, Advocate for quashing FIR No. 140 of 2006 dated 27.6.2006 registered at Police Station, Boileauganj. It has been argued that innocence of the petitioner Kuldeep Rao is reflected from his conduct that immediately on supplying the copy of judgment by Haresh Sood, he submitted the copy of the judgment to his department on 25.2.2011 for necessary action. It has been submitted that similar is the conduct of the other petitioner. It has been stated that simply the petitioners have not brought to the notice of the Court where the trial in FIR No. 140 of 2006 is pending of the judgment dated 18.12.2010 is prima-facie no ground to come to the conclusion that petitioners are involved in the case. It has been submitted that the petitioners are available for trial and in case the case is proved, they will suffer the consequences, however before conviction, they are innocent.

This Court has already considered some of the arguments now advanced by the learned counsel for the petitioners in the judgment dated 16.8.2011 in Cr. MMO Nos. 127, 128, 129 and 130 of 2011 as follows:-

Now reverting to the facts of the present case. In the fake judgment there are alleged eight petitioners namely (i) Ritika Kapoor D/o Dinesh Kapoor (ii) Aditi Rao D/o Kuldeep Rao (iii) Kritika Yadav D/o Duni Chand Yadav (iv) Ankita Batish D/o Shivender Batish (v) Dinesh Kapoor (vi) Kuldeep Rao (vii) Duni Chand Yadav and (viii) Shivender Batish. The main argument on behalf of the bail applicants is that they are innocent, nothing has been done by them which can be said to be an offence. They simply engaged Haresh Sood as an advocate for quashing FIR No. 140 of 2006 registered at Police Station, Boileauganj. They paid fee to him. Haresh Sood lateron told them about the judgment dated 18.12.2010 and quashing of case against the bail applicants. There was no reason to disbelieve Haresh Sood. The bail applicants were not aware nor in any way connected with the preparation of judgment dated 18.12.2010.

37.It has come during investigation that bail applicants have signed the power of attorneys in favour of Haresh Sood, obviously as per them for filing petition in the High Court for quashing FIR No. 140 of 2006. In the fake judgment not only the bail applicants but their respective daughters are also petitioners, how names of their daughters have been included as petitioners in the fake judgment that has not been explained by the bail applicants till now. It is not the stand of bail applicants that even their daughters also signed power of attorneys in favour of Haresh Sood for quashing FIR No. 140 of 2006.

The fake judgment in Cr. MMO No. 179 of 2010 was given on 18.12.2010, thereafter, the case arising out of FIR No. 140 of 2006 was taken up by the trial Court on 29.12.2010, 14.3.2011 and 16.5.2011. The copy of fake judgment was available on 24/25.2.2011. In normal circumstance on the first available opportunity the bail applicants were expected to submit to the trial court copy of judgment dated 18.12.2010 and to bring to the notice of the trial court that FIR No. 140 of 2006 as against them has been quashed and there is no question of proceeding against them. The copy of judgment dated 18.12.2010 was not submitted in the trial court by the bail applicants. The only reason given at the time of hearing of the present petitions for not submitting copy of judgment in the trial arising out of FIR No. 140 of 2006 was that the bail applicants were advised by their advocate to keep low, silent so that the State may not approach the superior court against the judgment dated 18.12.2010. This argument is naive and does not sound to logic. Kuldeep Rao submitted the copy of judgment dated 18.12.2010 in the Secretariat on 25.2.2011 in order to take benefit of the judgment. In any case till registration of the case on 24.5.2011 already more than five months were over from the date of judgment dated 18.12.2010 but still copy of judgment dated 18.12.2010 was not submitted in trial arising out of FIR No. 140 of 2006. This prima facie is not in consonance with the innocence of the bail applicants in the present case, rather it is indicative of conspiracy of preparing fake judgment. There are many loose ends which are required to be tied in further investigation.

The Section 173 Cr. P.C. report in FIR No. 60 of 2011 has been filed in the Court on 20.8.2011. In the status report it has been stated that report is incomplete. Udey Ram accused has been arrested on 8.12.2011. This indicates that investigation in the case is still going on even after the filing of report u/s 173 Cr. P.C. Cr. MMO Nos. 127, 128, 129 and 130 of 2011 were decided on 16.8.2011. No substantial circumstance favouring petitioners has come during investigation from 16.8.2011 to 20.8.2011 or thereafter.

It has been submitted that the petitioners have already spent 125 and 108 days in detention on 13.12.2011. It has been submitted that it is not certain how much time will be consumed for trial and, therefore, further detention of the petitioners for indefinite period is not necessary and they are entitled to bail. The Supreme Court in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another, has observed as follows:-

.....In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.

The learned counsel for the petitioners has relied Babba Alias Shankar Raghuman Rohida vs. State of Maharashtra (2005) 11 SCC 569 and Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, and State of Kerala Vs. Raneef, . In Babba Alias Shankar Raghuman Rohida (supra) the petitioner was in jail since 16.7.1992 and he was released on bail by the Supreme Court on 18.4.2005 after more than 12 years. Siddharam Satlingappa Mhetre (supra) is a case mainly dealing with anticipatory bail. In State of Kerala (supra) the Supreme Court has held that in deciding the bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. The Supreme Court has also held that of course is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail.

The Supreme Court in Masroor Vs. State of U.P. and Another, has held that the valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. The learned counsel for the petitioners has relied judgment Sanjay Chandra vs. C.B.I. decided by Supreme Court, but only unauthenticated copy of judgment on plain paper has been shown.

In the present case the allegations against the petitioners are very serious. The investigation in the case even after filing report u/s 173 Cr. P.C. is still continuing. Udey Ram accused has been arrested on 8.12.2011 after submission of challan u/s 173 Cr. P.C. on 20.8.2011. The preparing of a fake judgment of the High Court is not ordinary or routine type of offence. The allegations against the petitioners are that they have prepared fake judgment in Cr. MMO No. 179 of 2010 titled Ritika Kapoor and Others vs. State of H.P. allegedly decided on 18.12.2010 in connivance with other accused. Their plea of bail has already been considered in the judgment dated 16.8.2011. There is no significant change of circumstance so as to release the petitioners on bail. Hence, both the bail petitions are dismissed.