1. This petition arises out of FIR No.175/2020, dated 15.12.2020, registered under Sections 420, 465, 467, 468, 471 and 120B of the Indian Penal Code (IPC) and Section 66 of the Information Technology Act at Police Station Barotiwala, District Solan.
2. Heard learned counsel for the parties and gone through the status report and record produced by the respondent.
3. Briefly, the facts of the case are that: -
3(i). A complaint was made to the Superintendent of Police, Baddi, by the Registrar, IEC University Kallujhinda, Tehsil Baddi, District Solan, about the use of fake website domain name www.iecuniversity.org in an illegal and unauthorized manner. Complainant submitted that a company named Ample Themes illegally created the above website using IEC University logo, which is the clone of official website of IEC University, i.e. www.iecuniversity.com. It was also stated that in response to the complainant’s objections sent through letter dated 15.11.2019, the above named company replied that it was only a mock drill and the same would be removed. However, the company did not stop continuing with the illegal acts, rather the fake website also started showing data of students. The complainant apprehended that the company in question was practising deceit upon people by selling fake degrees and maligning the reputation of the complainant-Institution. On the basis of this complaint, the FIR was registered on 15.12.2020.
3(ii). Investigation revealed that domain name www.iecuniversity.org was registered through website Godaddy.com on 11.09.2019 on payment. The payment was made using e-mail tnboschool@gmail.com. On tracking Internet Protocol (IP) address, it was found that Internet Service Provider (ISP) for the same was Excitel Broadband Private Limited, New Delhi.
3(iii). Further investigation revealed that tnboschool@gmail.com was used by one Bharti (bail petitioner) of Govindpuri, Kalkaji, New Delhi, whose user ID was ‘bharti1262’. The police team visited this address. Mohd. Saleem and Bharti were found present at the spot and internet router/modem with MAC address was recovered from them, through which they used the internet of Excitel Company. Mohd. Saleem revealed that Bharti was his business partner and they had availed the services of Ainan Ahamed to create fake website of IEC University.
3(iv). Police team visited the residence of Ainan Ahamed at Noida and recovered 376 blank and 5 filled mark-sheets, 270 Holograms of IEC, Certificates from 78 Universities, cash amount of Rs.2,73,000/-, 165 stamps/ seals, six stamp pads, two laptops and one mobile phone from him. During investigations, Ainan Ahamed, Mohd. Saleem and Bharti statedly disclosed that they had prepared fake website of not only the complainant-IEC University, but of various other educational institutions and had distributed fake degrees, certificates and mark-sheets in different States throughout the country. The above three accused including the bail petitioner were arrested on 04.02.2021.
3(v). During custodial interrogation, Ainan Ahamed statedly disclosed that he got fake degrees, diplomas and certificates printed through one Amjad S/o Sh. Haidar, resident of Shaheen Baag, Delhi. He also statedly disclosed that address and logo of IEC University were provided by one Hashnoor. Later on, it turned out that his real name was Manish Kumar, resident of Fazilka, Punjab. Manish Kumar statedly ran a coaching institute at Fazilka and had disclosed his name as Hashnoor to Ainan Ahamed. Investigation revealed that Manish Kumar was involved in similar business of selling fake degrees. He was arrested on 08.02.2021 from Fazilka and fake mark-sheets, which he got prepared from Ainan Ahamed, were recovered from him. Certain other incriminating articles were also recovered from him.
3(vi). During investigations, Ainan Ahamed got recorded his statement under Section 27 of the Indian Evidence Act that he ran the fake degree racket for quite some time. With the help and connivance of other accused persons, he got prepared about 25 fake websites of different universities. Using these websites and also using SMSs through mobile phone etc., he used to contact small coaching centres located in different States throughout the country, alluring them for fake degrees and got these fake degrees/mark-sheets printed by Amjad.
3(vii). Money received from the sale of fake mark- sheets and fake degrees was used to be received in the bank account of one Archana Singh, resident of Noida. As per the status report, investigation revealed transactions running into crores of rupees in the said bank account. All the accused persons used to do work in lieu of money. Said Archana Singh was arrested on 14.03.2021.
3(viii). During investigations, Mohd. Saleem provided details of 32 fake websites allegedly got prepared by him at the instance of Ainan Ahamed with help of other accused persons. He also provided the backup data of 19 fake websites, which contained PHP files, student/subject details, screenshots of posts, e-mail backup and database etc.
3(ix). In view of the fraud and deceitful acts committed by the petitioner in preparing and selling fake and fictitious degrees/mark-sheets of various educational institutions/universities throughout the country by using various fake websites, the Superintendent of Police, Baddi, District Solan requested the Inspector General of Police, South, Shimla to handover the further investigation to the State Intelligence Department.
4. Learned counsel for the petitioner submitted that investigation in the matter is already complete. Challan stands presented before the Court of competent jurisdiction way back on 01.04.2021 and the trial is underway. Despite repeated orders passed by this Court in different bail petitions moved by the petitioner and other co-accused persons, the respondent has not rendered full cooperation and assistance for speedy conclusion of trial.
Learned Deputy Advocate General opposed the bail petition. She contended that serious allegations have been levelled against the petitioner. There is sufficient evidence available on record against her of creating many fictitious domains and fake websites of different universities & various educational institutions throughout the country. Using these fictitiously created domains and fictitiously created websites, the petitioner in connivance with other accused persons has duped the students as well as sold fake diplomas/degrees/mark-sheets on the domain of these universities and in this process, the petitioner while maligning the reputation of the universities/educational institutions, has illegally earned huge money. Learned Deputy Advocate General further submitted that trial is now underway and four witnesses remained to be examined. Therefore, at this stage, the petitioner may not be released on regular bail.
5. Observations:-
5(i). Cr.MP(M) No.719 of 2021 previously filed by the petitioner was dismissed on merits vide order dated 18.05.2021 as it was projected on behalf of the respondent- State that:- the matter was still being investigated from various angles; that it was the case of fake degree racket of alarming magnitude; racket of this size cannot be a handy work of few; in all probability, there would be involvement of various others; that request has been made to the State Intelligence Department to come into picture for further investigation.
However, the record produced by the respondent shows that no further investigation of the nature projected earlier was carried out by the respondent after the passing of order dated 18.05.2021. Police report under Section 173 Cr.PC was presented on 01.04.2021 and supplementary challan was also presented on 06.05.2021. No further investigation was carried out by the investigating agency. The ground on which previous bail petition preferred by the petitioner was dismissed has lost its efficacy.
5(ii). Cr.MP(M) No.1976 of 2022 was another bail petition moved by one of the co-accused persons. Taking note of the status report filed in that petition, which indicated that 13 prosecution witnesses had already been examined and statements of 12 witnesses remained to be recorded, for which purpose, the matter was stated to be listed before the learned Trial Court on 12.10.2022 and also taking into consideration the fact that the accused persons were behind the bars since February 2021, the petition was disposed of on 23.09.2022 as withdrawn with the hope and expectation that the learned Trial Court shall make all endeavour to conclude the trial as expeditiously as possible. It would be appropriate to extract hereinafter the order dated 23.09.2022, passed in Cr.MP(M) No. 1976 of 2022 :-
“Status report stands filed.
2. The petitioners are accused in FIR No.175/2020 dated 15.12.2020 registered under Sections 420, 465, 467, 468, 471, 120B of the Indian Penal Code and Section 66 of the Information Technology Act at Police Station Barotiwala, District Solan, H.P., and praying for enlargement on regular bail.
3. In terms of the status report, 13 prosecution witnesses have already been examined in the learned Trial Court and statements of remaining 12 witnesses are yet to be recorded. The matter is stated to be listed before the learned Trial Court on 12.10.2022 for the said purpose.
4. Considering that the evidence in the matter is going on, Mr. Manohar Lal Sharma and Mr. Pavinder, learned counsel for the respective petitioners do not press these petitions and pray for withdrawing the same at this stage with liberty to move afresh, at an appropriate stage, in accordance with law. Prayer being innocuous has not been opposed by learned Assistant Advocate General. Accordingly, the petitions stand dismissed as withdrawn with leave and liberty as prayed for. However, keeping in view the fact that the petitioners are behind the bars since February 2021, it is hoped and expected that the learned Trial Court shall make endeavour to conclude the trial expeditiously. Registry is directed to supply a copy of this order to the learned Trial Court. Pending miscellaneous application(s), if any, shall also stand disposed of.”
Cr.MP(M) Nos.829 and 971 of 2023 were instituted by the co-accused persons. Notice in these petitions was waived by the respondent on 03.04.23 and 21.04.2023 respectively. Taking note of the averments made in the status report, following order was passed in these petitions on 04.05.2023: -
“Ms. Seema Sharma, learned Deputy Advocate General states that the prosecution is left with examination of two cited civil and two police officials. she further submits that in case the two cited civil witnesses do not appear on the next date fixed before the learned Trial Court on 10.05.2023, they will be given up. Sue also submits that the two remaining police officials, who are left to be examined, though have not been served, however, keeping in view the need for expeditious trial, would be examined by the prosecution before the learned Trial Court on the aforesaid date. She prays for taking up the matter on 11.05.2023.
As prayed for, list on 11.05.2023.”
The above bail petitions were taken up for hearing on 11.05.2023, when learned Deputy Advocate General placed on record fresh status report dated 11.05.2023. As per that status report, no PWs could be examined in the Court on 10.05.2023. One of the police official was stated to be bedridden and admitted in hospital at Delhi and other police official was stated to be on leave. So called independent witness Naveen is also yet to be examined. As per the status report, the respondent was not even aware of the address of this witness. The 4th witness was also stated to be bedridden. Learned Deputy Advocate General had also submitted that the prosecution does not intend to give up any of the remaining witnesses as testimonies of all these four witnesses are essential for the prosecution. The submission of learned Deputy Advocate General was at variance to the statement made before this Court on 04.05.2023 (extracted earlier).
Taking note of above facts, the two bail petitions filed by co-accused persons bearing Cr.MP(M) Nos.829 and 971 of 2023 were allowed on 11.05.2023.
5(iii). SLP (Crl.) No. 915 of 2023 (Mohd Muslim @ Hussain Vs. State (NCT of Delhi) was decided on 28.03.2023. Petitioner therein facing charge under Section 29 of the Act and suffering incarceration for over seven years was granted bail on account of delay in trial. Hon’ble Court inter-alia reiterated that when stringent provisions are enacted, curtailing the provisions of bail and restraining judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. Pronouncements in (2021) 3 SCC 713 (Union of India V. K.A. Najeeb) and (2022) 6 SLR 382 (Vijay Madan Lal Chaudhary Vs Union of India) were also observed wherein it was concluded that statutory restrictions like “section 43-D(5) of UAPA cannot fetter a Constitutional Court’s ability to grant bail on ground of violation of fundamental right” ….. “If the Parliament provides for stringent provision of no bail unless the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time at least before the accused undergoes detention for a period extending up to one and half of the maximum period of imprisonment specified for the concerned offence by law. (2022) 10 SCC 51 (Satender Kumar Antil Vs. CBI) was also considered where prolonged incarceration and inordinate delay engaged the attention of Court vis-à-vis several enactments including Section 37 of NDPS Act. Some of the relevant paras from Mohd. Muslim’s case (supra) are as under:-
“2. Long back, in Hussainara Khatoon v. Home Secy., State of Bihar this court had declared that the right to speedy trial of offenders facing criminal charges is "implicit in the broad sweep and content of Article 21 as interpreted by this Court". Remarking that a valid procedure under Article 21 is one which contains a procedure that is "reasonable, fair and just" it was held that:
"Now obviously procedure prescribed by law for depriving a person of liberty cannot be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21.
There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21."
3. These observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar and Abdul Rehman Antulay v. R.S. Nayak; in the latter the court re-emphasized the right to speedy trial, and further held that an accused, facing prolonged trial, has no option:
"The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial."
4 to 15…………………..
16. In the most recent decision, Satender Kumar Antil v. Central Bureau of Investigation prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply:
"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision.
For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."
5(iv). In view of the facts, it is not likely that the trial can be concluded in near future. The petitioner is behind the bars w.e.f. 04.02.2021. She has completed more than two years in custody and is facing accusation under Sections 420, 465, 467, 468, 471 and 120B IPC.
6. While protecting the interest of the prosecution, individual liberty of the petitioner is also to be kept in mind. In case despite repeated directions of the Court emphasizing need of speedy trial, the prosecution is unable to conclude its evidence, the petitioner cannot be made to suffer. Co-accused persons-petitioners in Cr.MP(M) Nos.829 and 971 of 2023 have already been enlarged on bail for the aforesaid reasons.
7. For all the above reasons, the bail petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on her furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh only) with two local sureties in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions: -
(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.
(ii). The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.
(iii). The petitioner will not leave India without prior permission of the Court.
(iv). The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.
(v) The petitioner shall not contact, threaten or intimidate the victim/complainant and their family members in any manner whatsoever.
(vi). In case the petitioner is put to trial, then she shall attend the trial on every hearing, unless exempted in accordance with law.
(vii). Petitioner shall inform the Station House Officer of the concerned police station about her place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of her Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.
8. In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.
9. With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.
