Shivani vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking the pre-arrest bail. It is asserted that the police have registered an FIR No. 13 of 2023, dated 28.7.2023 against the petitioner for the commission of offences punishable under Sections 12, 13(1)(a) read with Section 13(2) of the Prevention of Corruption Act, 1998 and Sections 420, 409 and 120-B of IPC in State Vigilance and Anti Corruption Bureau, Hamirpur, District Hamirpur, H.P. The petitioner is innocent and she was falsely implicated. The petitioner is pursuing her studies of M.A. (English) from Indira Gandhi National Open University and she has appeared as a candidate for the post of Junior Office Assistant (IT), conducted by the HP Service Selection Board, Hamirpur. Several persons were arrested and released on bail. The result of the examination undertaken by the petitioner was not declared. The petitioner was found in the contact list of Smt. Uma Azad, who was posted as Senior Assistant in HP Subordinate Selection Board, Hamirpur. The petitioner joined the investigation thrice and disclosed all the facts. The petitioner is distantly related to Uma Azad and that is why her name was found in the contact list. The petitioner has nothing to do with the commission of the offence. No recovery is to be effected from the petitioner. She would abide by all the terms and conditions, which may be imposed by the Court. Hence, it was prayed that the present petition be allowed and the petitioner be released on pre-arrest bail.

The petition was opposed by filing a status report, asserting that an FIR No. 4/2022 was registered on 23.12.2022 in the Police Station State Vigilance and Anti Corruption Bureau, Hamirpur regarding the leakage of the question paper of Junior Office Assistant (IT). The police conducted the inquiry and found that Uma Azad, posted as Senior Assistant in Examination (Secrecy) Branch was appointed as Assistant Coordinator for Sub Division, Hamirpur. She had not disclosed that her close relative Shivani (present petitioner) was appearing in the examination. Uma Azad revealed on inquiry that she had revealed the question paper to her niece, who secured the first position in her respective category. The petitioner had secured the first position in connivance with Uma Azad. The police registered the FIR against the petitioner. It was found during the investigation that the petitioner is the niece of Uma Azad, who had disclosed the question paper to the petitioner. The petitioner was a candidate in New Gurukul School, Pakka Baroh and Uma Azad was the Assistant Coordinator of Hamirpur. She had not furnished a ‘No Relation Certificate’. The petitioner had attempted 156 questions and left 14 questions un-attempted. She secured 120 marks. The petitioner was asked to solve the question paper and she answered 134 questions correctly. The questions were asked from the petitioner but she did not answer those questions. Questions Nos. 18, 33, 35, 52 and 105 did not have the correct options. Hence, grace marks were awarded in respect of these questions. The answers given by the petitioner tallied with the answer key, which shows that the petitioner had read the question paper and secured the first position. The petitioner is to be interrogated. Hence, it was prayed that the present petition be dismissed.

I have heard Mr. Anubhav Chopra, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General for the respondent/State.

Mr Anubhav Chopra, learned counsel for the petitioner submitted that the petitioner is innocent and she was falsely implicated. She did not have cordial relations with Uma Azad and the petitioner cannot be held guilty merely because Uma Azad had not furnished a No Relation Certificate before proceeding on duty. No useful purpose would be served by detaining the petitioner in custody. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State submitted that the petitioner knew the question paper and secured undue advantage. Therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed:

“67. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.”

The prosecution is asserting that the petitioner knew Uma Azad and Uma Azad revealed the question paper to her, however, the status report shows that the petitioner had attempted 160 questions, out of which 134 were found to be correct. General questions were asked from the petitioner but she did not reply to the same. Merely because the petitioner did not reply to the general question cannot lead to an inference that she had secured undue advantage by knowing the question paper.

The status report also shows that the petitioner had given similar answers to questions No. 18, 33, 35, 52 and 105 which were mentioned in the answer key. However, it has not been stated that Uma Azad had access to the answer key. Therefore, merely because the petitioner had given the answers which were mentioned in the answer key cannot lead to an inference that she knew the answers beforehand.

The status report says that the petitioner is to be interrogated to determine how she had obtained the question paper and the recovery of the question paper is to be effected from her. In the absence of any evidence that the petitioner had access to the question paper, she cannot be compelled to reveal from where she had obtained the question paper and cannot be compelled to produce the question paper. Moreover, the petitioner has a right of silence under Article 20 of the Constitution of India and cannot be compelled to be a witness against herself. It was held by the European Commission of Human Rights in John Murray vs. United Kingdom[1996] ECHR 3 that the right to silence and the right against self-incrimination form the core of the fair procedure. It was observed:

“ Although not specifically mentioned in Article 6 (art. 6) of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (art. 6) (see the Funke judgment cited above, loc. cit.). By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6 (art. 6).”

Therefore, the police custody cannot be authorised to compel the petitioner to be a witness against herself and the purpose of seeking custodial interrogation is not justified in the present case.

No other purpose for the custody has been justified. Keeping in view the age of the petitioner and the nature of the allegations made against her, the detention of the petitioner is not justified.

Final order:

Hence, the present petition is allowed and the order dated 1.8.2023 is made absolute till the disposal of the case. The petitioner will continue to abide by all the terms and conditions imposed by the Court.

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.