SHOBHAN SINGH KHANKAversusTHE STATE OF JHARKHAND

                     [?012] 2 S.C.R. 663


                SHOBHAN SINGH KHANKA                               A
                               v.
               THE STATE OF JHARKHAND
             (Criminal Appeal No. 592 of 2012)
                      MARCH 30, 2012
                                                                   8
     [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

    Code of Criminal Procedure, 1973:

     s.438 - Anticipatory bail - Criminal proceedings against      c
Chairman and Members of State Public Service Commission
and Examiners regarding large scale bungling and
manipulation of marks - Inquiry by Vigilance department - FIR
lodged - Appellant, an Expert also arraigned as an accused
- Application for anticipatory bail of appellant rejected by
                                                                    0
Special Judge and High Court - Held: Considering the limited
a/legation against the appellant in the FIR and other details,
his academic qualifications including the fact that he does not
belong to the State and has no relatives and is not a Member
of the JPSC, acted as Expert only for a short period, the
appellant has made out a case for anticipatory bail - Even if E
the prosecution has any apprehension, sub-s. (2) of s. 438
enables the court concerned to impose such conditions/
directions as it may think fit - Appellant, in the event of arrest,
directed to be released on bail, subject to the conditions
stipulated in the judgment.                                         F

    s.438 - Anticipatory bail - Factors to be considered -
Explained.

    On an inquiry conducted by the vigilance                       G
department, it was revealed that in holding the second
Jharkhand Public Service Commission Civil Services
Examination - 2005, there had been large-scale bungling,
manipulation, tampering of marks, irregularity in
                              663                                  H
    664      SUPREME COURT REPORTS              [2012] 2 S.C.R.


A appointment of Examiners, and the Members of the
  Interview Board end the Chairman in connivance with the
  Members and also in conspiracy with the successful
  candidates for securing monetary gains to the officials of
  JPSC, by practicing corrupt method, made
B recommendations to the Government for appointment of
  various persons. It was also alleged that the Members
  either had not given declaration regarding their relatives
  appearing in the examination or had not provided the
  required details. An FIR was lodged against several
C persons, including the Chairman and Members of the
  JPSC as also the appellant who was engaged as an
  Expert. This gave rise to Special case No. 23 of 2010 for
  offences under the IPC and Prevention of Corruption Act,
  1988.

D       The appellant filed an application for anticipatory bail
    u/s 438 CrPC which was rejected by the Special Judge
    as also by the High Court.

          Allowing the appeal, the Court
E      HELD: 1.1. It is settled law that personal liberty is a
  precious fundamental right. While considering the claim
  of pre-arrest bail, the factors to be considered are: (i) the
  nature and gravity of the accusation; (ii) the antecedents
  of the applicant including the fact as to whether he has
F previously undergone imprisonment on conviction by a
  Court in respect of any cognizable offence; (iii) the
  possibility of the applicant to flee from justice; and (iv)
  whether the accusation has been made with the object
  of injuring or humiliating the applicant by having him so
G arrested. [para 7 and 12] [669-C; 671-C-F]
      1.2. It is not in dispute that the appellant is not a
  regular Member of the JPSC nor he belong to the State
  of Jharkhand. Admittedly, he is in Central Government
H service and he was nominated as Expert No.1 by the
     SHOBHAN SINGH KHANKA v. STATE OF               665
                JHARKHAND
Board. The appellant has excellent academic career. He A
has been a regular expert in the Selection Committees of
UGC, AICTE, ICSSR and other Universities. He has to his
credit the authorship of numerous Research/Reference
Books and Textbooks. Recently, he was awarded
"Shiksha Rattan Puraskar" by the Governor of Arunachal B
Pradesh. The President of India based on the academic
qualification of the appellant nominated him as her
nominee for recruitment of Assistant/Associate
Professors in the Faculty of Commerce and Management
in the Indira Gandhi National Tribal University, Amar c
Kantak, Madhya Pradesh. [para 8] [669-D-G-H; 670-A-B]

     1.3. The perusal of the FIR also shows that the
appellant was not acquainted with or related to any of the
candidates interviewed by the panel of which he was a
Member. In view of the assertion that the appellant does D
not belong to the State of Jharkhand and has no relatives,
friends or kinsmen in the State of Jharkhand, there is no
prima facie case to include him in the alleged conspiracy.
Considering his academic qualifications and experience
and taking note of his claim that of an impeccable career E
as academician and of the fact that he has no interest in
the State of Jharkhand, this Court holds that the appellant
has made out a case for anticipatory bail u/s 438 of the
Code of Criminal Procedure, 1973. Even if the
prosecution has any apprehension, sub-s. (2) of s. 438 F
enables the court concerned to impose such conditions/
directions as it may thinks fit. [para 11-12] [670-H; 671-A-
B; 671-G]

     1.4. The order passed by the Special Judge as well G
as the High Court dismissing the petition of the appellant
for anticipatory bail are set aside. Accordingly, it is
directed that in the event of arrest, the appellant shall be
released on bail subject to the conditions laid down in
the judgment. [para 13] [671-H; 672-A]
                                                          H
    666       SUPREME COURT REPORTS              [2012] 2 S.C.R.

A       ·CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. ;592 of 2012.

        From the Judgment & Order dated 21.09.2011 of the High
    Court of Jharkhand at Ranchi AB.A. No. 3230 of 2011.
B         Uday U. Lalit, Nitin Sangra, Satyajeet Saha, V.D. Khanna
    for the Appellant.

        Sunil Kumar, Chhaya Kumari, Anil K. Jha for the
    Respondent.
c         The Judgmen~ of the Court was delivered by

          P. SATHASIVAM, J. 1. Leave granted.

       . 2. This appeal is directed against the judgment and order
o dated 21.09.2011 passed by the High Court of Jharkhand at
    Ranchi in AB.A. No. 3230 of 2011 whereby the High Court
    rejected the application for anticipatory bail filed by the
    appellant herein.

          3. Brief facts:
E
        (a) The appellant herein, who acted as one of the Expert
   in the Interview Board to the Jharkhand Public Service
  ·Commission (in short "the JPSC"), filed a petition before the
   Special Judge (Vigilance), for anticipatory bail under Section
F 438 of the Code of Criminal Procedure, 1973 (in short "the
   Code") in connection with Special Case No. 23 of 2010 arising
   out of Vigilance PS No. 23 of 2010 under Sections 420, 423,
   424, 467, 468, 469, 471, 477A, 120-B, 109 and 201 of the
   Indian Penal Code, 1908 (in short "the IPC") and Section 13(2)
G read with Section 13(1) (c) (d) of the Prevention of Corruption
   Act, 1988.                                       '

       (b) According to the appellant, he was intimated that he
  had been nominated as Expert No1 in the Interview Board for
H holding interview from 28.01.2008 to 01.02.2008. He was




                                                           "·
       SHOBHAN SINGH KHANKA v. STATE OF                      667
         JHARKHAND [P. SATHASIVAM, J.]
selected by the Members of the Expert Committee including            A
the Chairman of the JPSC.

     (c) The allegations against the appellant, Chairman and
other Members of the JPSC are that they provided highest
marks to the candidates whom they desire to be selected or           B
appointed by giving undue favour. The appellant is also
responsible for conspiracy with the Chairman, Members of the
JPSC and the candidates who were given highest marks by
the Interview Board. It is also alleged that the appellant is
responsible for cutting, manipulation, interpolation in the marks    C
sheet of the Interview Board in order to provide benefit to the
candidates for selection and appointment.

     (d) The prosecution case in a nutshell is that an enquiry
was conducted by the vigilance department regarding the
irregularity committed by the Chairman, Members and officers         D
of the JPSC in conducting Second JPSC Civil Services
Examination pursuant to advertisement No. 7 of 2005 dated
12.11.2005. It is alleged by the prosecution that the examin.ation
was not held in accordance with the guidelines. The Members
either have not given declaration regarding their relation           E
appearing in the examination and those who have given
declaration have not provided the required details. The further
allegation of the prosecution is that there has been
manipulation in the numbers awarded to the students. The
prosecution examined 22 copies and it has been alleged that          F
they have found manipulation in the answer sheets. It is the
further case of the prosecution that there has been large-scale
bungling, manipulation, tampering of marks, irregularity in the
appointment of Examiners and Members of.the Interview Board
and the Chairman in connivance with the Members and also in          G
conspiracy with the successful candidates for securing
monetary gains to the officials of JPSC in utter disregard to the
rules and by practicing corrupt method recommendations for
appointment of various persons were made to the Government.
Accordingly, a First Information Report (in short "FIR") was
                                                                     H
 lodged ~gainst several persons including the appellant.
    668     SUPREME COURT REPORTS                   [2012] 2 S.C.R.

A       (e) By order dated 01.08.2011, the Special Judge
  (Vigilance) Ranchi, on consideration of the materials refused
  to enlarge the appellant on anticipatory bail and rejected his
  petition. Against the order of the Special Judge, the appellant
  preferred A.B.A. No. 3230 of 2001 before the High Court of
B Jharkhand at Ranchi. By impugned order dated 21.09.2011,
  the High Court confirmed the order of the Special Judge and
  dismissed his petition for anticipatory bail.

      4. Heard Mr. Uday U. Lalit, learned senior counsel for the
  appellant and Mr. Sunil Kumar, learned senior counsel for the
C respondent-State of Jharkhand.

        5. After taking us through all the materials including the FIR
  and the allegations pertaining to the present appellant, Mr. Lalit,
  learned senior counsel submitted that in the FIR except for
o stating that the appellant was one of the Expert, there is nothing
  which can even remotely connect the appellant with any offence
  much less the offences alleged therein. He also submitted that
  the appellant who hails from District Pithoragarh, Uttarakhand,
  presently posted at Faridabad, Haryana has no relatives,
E friends or kinsmen in the State of Jharkhand and, therefore, had
  no reason or motive to favour anybody and in that event be a
  part of any conspiracy to commit the alleged crime. He further
  pointed out the role of the appellant as Expert Member was only
  to award marks to each candidate on a separate sheet and
F had nothing to do beyond it. He also pointed out that the
  observation of the High Court in the impugned order rejecting
  his anticipatory bail application on the ground that the appellant
  stands on a similar footing as that of other accused is factually
  incorrect inasmuch .as the appellant cannot be equated with the
  case of other Experts who belong to the State of Jharkhand and
G are alleged to be related or known to candidates and, therefore,
  had no reason or motive to commit the alleged crime. On the
  other hand, learned counsel for the State submitted that
  considering the serious nature of the crime and of the fact that
  the appellant's initial selection as expert is itself contrary to the
H rules and several manipulations have been done by all the .
      SHOBHAN SINGH KHANKA v. STATE OF                        669
        JHARKHAND [P. SATHASIVAM, J.]
persons concerned in the selection panel, it is not a fit case in     A
which the anticipatory bail is to be granted.

    6. We have carefully perused the relevant materia.ls and
considered the rival contentions.

     7. Inasmuch as we are concerned about the eligibility or         B
otherwise relating to grant of anticipatory bail, there is no need
to go into all the factual details and arrive a finding one way or
the other which will affect the ultimate trial of the case. We have
already referred to the offences alleged in the FIR. It is settled
law that personal liberty is a precious fundamental right. With       C
this background, we have to see that whether a case has been
made out for grant of anticipatory bail.

      8. It is not in dispute that he is not a regular Member of
the JPSC. Admittedly, he is in Central Government service and D
he was nominated as Expert No.1 by the Board. Thought it is
pointed out that his nomination itself is bad, that is not a relevant
issue at this moment. Mr. Lalit, learned senior counsel for the
appellant pointed out his higher academic qualifications. All
those details are available in Annexure-P1 which shows that E
the appellant possesses qualifications of M.Com., (Gold
Medallist) and holder of 5 Ph.Os. He is a Professor and
Coordinator in Fellow Programme and Management in National
Institute of Financial Management of the Central Government
and he has an experience of 16 years as Professor since
21.10.1994. He has 13 years administrative experience as F
Head of the Department of Business Administration and 13
years experience as Dean in the School of Management
Studies. The appellant has specialization in Human Resources
Management, Organisational behaviour and Entrepreneurship
Development and besides that, he has experience on G
International Exposure of visiting Professor in other foreign
countries. It is also pointed out that the appellant has been a
regular expert in the Selection Committees of UGC, AICTE,
 ICSSR and other Universities. He has to his credit the
authorship of numerous Research/Reference Books and H
    670      SUPREME COURT REPORTS                  [2012] 2 S.C.R.


A   Textbooks. Recently on 26.05.2011, the appellant was awarded
    "Shiksha Rattan Puraskar" by H.E. the Governor of Arunachal
    Pradesh. It is also brought to our notice that in July, 2011,
    Hon'ble the President of India based on the academic
    qualification of the appellant nominated him as her nominee for
B   recruitment of Assistant/As::;odate Professors in the Faculty of
    Commerce and Management in the Indira Gandhi National
    Tribal University, Amar Kantak, Madhya Pradesh. The above
    details show that the appellant has excellent academic career.

          9. In the FIR, the appellant has been named as accused
C   No.7. Though it is pointed out that the appellant has given
    highest marks to the candidates who were given only 10 marks
    by the Chairman of the Interview Board, it is not in dispute that
    he is not a Member of the JPSC Board nor belongs to
    Jharkhand State. As stated earlier, he was selected as
D   specialized member for a short period only. Mr. Lalit has also
    taken us through the chart showing marks given by experts
    including the present appellant - Expert No.1, Expert No.2 and
    the Chairman Shanti Devi. Interestingly, the Chairman has
    allotted 10 marks to each of the candidate irrespective of his/
E   her performance. We are not here to assess and give a finding
    Whether the marks awarded by the appellant (Expert No.1) is
    excessive or unreasonable. All those things have to be analyzed
    only at the time of trial by way of evidence.

F         10. Though the High Court has concluded that on the
    ground of parity and on the similar footing that the other co-
    accused declined to grant anticipatory bail, we are of the view
    that inasmuch as all other Members of the Board including the
    Chairman belong to Jharkhand and some of their relatives
G   participated in the selection and considering the fact that the
    present appellant has no connection with the JPSC and hails
    from a different State, namely, Uttarakhand, the said
    observation/conclusion is not acceptable.

        11. The perusal of the FIR also shows that the appellant
H   was not acquainted with or related to any of the candidates
       SHOBHAN SINGH KHANKA v. STATE OF                        671
         JHARKHAND [P. SATHASIVAM, J.]

interviewed by the panel of which he was a Member. In view of         A
the assertion that the appellant does not belong to the State of
Jharkhand and has no relatives, friends or kinsmen in the State
of Jharkhand, there is no prima facie case to include him in the
alleged conspiracy. Considering his acade,riic qualifications
and experience and taking note of his claim that of an                B
impeccable career as academician and of the fact that he has
no interest in the State of Jharkhand, we hold that the appellant
has made out a case for anticipatory bail under Section 438
of the Code.

     12. While considering the claim of pre-arrest bail, the          C
following factors have to be considered:

      (i)    the nature and gravity of the accusation;

      (ii)   the antecedents of the applicant inclu~ing the fact      o
             as- to whether he has previously undergone
             imprisonment on conviction by a Court in respect
             of any cognizable offence;

      (iii) ·the possibility of the applicant to flee from justice;
             and                                                      E

      (iv)   where the accusation has been made with the
             object of injuring or humiliating the applicant by
             having hirTijo arrested.
                                                                      F
Considering the limited allegation in the FIR '3nd other details,
his academic qualifications including the fact that he does not
belong to the State of Jharkhand and has no relatives and is
not a Member of the JPSC, acted as Expert No.1 only for a
short period, the appellant has made out a case for anticipatory      G
bail. Even if the prosecution has any apprehension, sub-section
(2) of Section 438 enables the court concerned to impose such
conditions/directions as it may thinks fit.

    13. Under these circumstances, the order passed by the
Special Judge as well as the High Court dismissing his petition       H
    672            SUPREME COURT REPORTS                  [2012] 2 S.C.R.


A for anticipatory bail are set aside. Accordingly, we direct that
  in the event of arrest, the appellant shall be released on bail in
  c·onnection with PS case No. 23 of 2010 corresponding to
  Special Case No. 23 of 2010, Vigilance PS, Ranchi,
  Jharkhand subject to the following conditions:-
B
            (i)     the appellant shall make himself available for
                    interrogation as and when required;

            (ii)     the appellant shall not directly or indirectly make any
                     inducement, threat or promise ~o any person
c                    acquainted with the facts of the case so as to
                     dissuade him from disclosing such facts to the
                     Court or to any police officer;

            (iii)    the appellant shall not leave India without the
D                    previous permission of the special court.

        14. It is made clear that the conclusion reached by us is
  limited to the disposal of the application for anticipatory bail and
  the Special Judge is free to decide the charges in the ultimate
  trial in accordance with law uninfluenced by any of the
E observation/conclusion made herein.

           15. The appeal is allowed on the above terms.

    R.P.                                                 Appeal allowed.