Hemant Kumar @ Hemant Kumar ... vs State Of U.P. And Another
2021 Latest Caselaw 11510 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										       A.F.R.
 
Reserved on : 08.12.2021
 
Delivered on : 21.12.2021
 
Court No. - 78
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 18604 of 2021
 

 
Applicant :- Hemant Kumar @ Hemant Kumar Saraswat
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Surya Bhan Singh,Brijesh Kumar Verma,Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

1. Heard Sri Shiv Nath Singh, learned Senior Advocate assisted by Sri Swapnesh Singh, Advocate holding brief of Sri Surya Bhan Singh, learned counsel for the applicant and Sri Vinod Kant, Senior Advocate, learned Additional Advocate General, assisted by Sri Sanjay Kumar Singh, learned Additional Government Advocate for the State of U.P. and perused the records.

2. This second anticipatory bail application under Section 438 of Code of Criminal Procedure, 1973 has been filed by the applicant Hemant Kumar @ Hemant Kumar Saraswat, seeking anticipatory bail, in the event of arrest in Case Crime No. 0067 of 2021, under Sections 420, 467, 468, 471 IPC, Police Station Manth, District Mathura.

3. The first anticipatory bail application being Crl. Misc. Anticipatory Bail Application No. 11802 of 2021 (Hemanth Kumar Vs. State of U.P. and 2 others) was rejected by Hon'ble Vivek Agarwal, J. vide order dated 15.06.2021. The said order is quoted herein-below:

"None for the applicant though the link was sent to the learned counsel for the applicant. Sri Vinod Kant, learned Additional Advocate General for the State.

This application seeking anticipatory bail has been filed by the applicant being aggrieved of registration of a criminal case registering Case Crime No. 0067 of 2021 at Police Station- Manth, District- Mathura, under Sections 420, 467, 468, 471 IPC. Allegation on the applicant is that he is a beneficiary of a forged marksheet, which he had allegedly obtained from Agra University, showing him to have qualified the B.Ed Examination in the academic session 2004-05, whereas according to the applicant neither his marksheet is forged nor there is any manipulation.

Learned counsel for applicant submits that on the strength of this marksheet, he was appointed as 'Assistant Teacher' in a primary school where he had joined his services on 29.12.2010 and he continued to work for about 10 years when his service was terminated. It is submitted that applicant is innocent and under similar facts and circumstances in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8248 of 2021 (Lokendra Pal Singh and 17 Others) benefit of anticipatory bail has been extended.

Learned A.A.G., in his turn, submits that interim protection was afforded in case of Lokendra Pal Singh because learned A.G.A. in that case had not produced instructions and therefore, matter was thought to be considered on a later date and interim protection was granted till 27.04.2021. Sri Vinod Kant submits that his instructions are complete. There is a racket going on in the State of Uttar Pradesh where beneficiaries are obtaining forged marksheets in connivance with the middleman and the main conspirators, who are having thorough knowledge of the system, operationalized in various universities.

It is submitted that authorities are deliberately trying to protect the concerned officials of the university, who in collusion with certain other persons, manipulated with the marksheet and cheated innocent persons like applicant.

Applicant has directly come to this Court because F.I.R. was lodged on 20.04.2021. Therefore, applicant has been able to make out an extraordinary circumstances in the light of the judgment of Five Judges Bench of this Court in case of Ankit Bharti Vs. State of U.P. and another; 2020 (3) ADJ 165 (F.B.)., by directly approaching this Court.

After hearing learned counsel for the parties and going through the record, it is evident that applicant is a beneficiary of a forged marksheet. It is a matter of investigation as to whether applicant had actually appeared in the examination conducted by the university and had obtained a genuine marksheet or whether he is a party to the offence or is a victim of the offence, committed by certain other influential accused persons, which may include officials of the university. In view of such facts, it is necessary that applicant surrender before the Court and cooperate with the Investigating Officer, inasmuch as, the chain of beneficiary, middleman and mastermind is long and unless and until, they are all subjected to investigation for which sometimes custodial investigation may also be necessary to reach the roots of the crime, which is paralyzing the fabric of the society and also attacking on the roots of the education system, may not be exposed.

In view of such facts, there being no parity vis-a-vis case of Lokendra Pal Singh and Others, in the present case, I am of the opinion that for the present, applicant has failed to make out a case for grant of anticipatory bail, thus, application fails and is dismissed."

4. The present anticipatory bail application has been filed with the following prayer:-

"It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this Anticipatory Bail Application and enlarge the applicant on bail in Case Crime No. 0067 of 2021, under Sections 420, 467, 468 and 471 IPC at Police Station Manth, District Mathura, otherwise the applicant shall suffer irreparable loss and injury."

5. Learned counsel for the applicant argued that the applicant was appointed as Assistant Teacher in Junior Basic School during the period 2008-2011 after obtaining his B.Ed. Degree during the Session 2004-05 from Dr. B.R. Ambedkar University, Agra. He joined his services on 29.12.2010 and continued to work their for about ten years after which his services have been terminated. It was alleged that the B.Ed. mark-sheet and degree which was one of the required qualifications for the appointment was found to be forged and as such the present First Information Report has been lodged.

6. Learned counsel for the applicant has further argued that the controversy with regards to the B.Ed. mark-sheet and degree of Agra University for the year 2004-05 was the subject matter of a writ petition which was converted into a Public Interest Litigation No. 2906 of 2013 (Sunil Kumar Vs. Dr. Bhimrao Ambedkar University and another) in which the matter was directed to be investigated by a Special Investigating Team which submitted its report on 14.08.2017 alleging therein that there were around 3500 mark-sheets/degree from which about 1000 mark-sheets/degree had been tampered. It is argued that the termination of the applicant vide order dated 18.12.2019 was challenged before this Court in Writ A No. 20784 of 2019 (Hemant Kumar Saraswat Vs. State of U.P. and 4 others). Since large number of candidates were affected whose services were terminated they had also preferred writ petitions before this Court which were all clubbed together and Writ A No. 190 of 2020 (Smt. Neelam Chauhan Vs. State of U.P. and others) was made a leading writ petition which was dismissed vide judgment and order dated 29.04.2020 by this Court. The order of dismissal was challenged in a Special Appeal (Defective) No. 634 of 2020 (Kali Charan and 10 others Vs. State of U.P. and 4 others) before a Division Bench of this Court in which vide order dated 21.09.2020, the effect and operation of the judgment and order dated 29.04.2020 was stayed, and thereafter, the appellants were permitted to continue in their services. The said special appeal was renumbered as Special Appeal No. 488 of 2020 and was decided vide judgment and order dated 26.02.2021 in a bunch of cases in which Special Appeal No. 326 of 2020 (Smt. Kiran Lata Singh Vs. State of U.P. and others) was the leading case. Against the said judgment and order, a Special Leave to Appeal (C) No. 7157-7160 of 2021 (Rajesh Kumar Chaturvedi etc. Vs. State of U.P. and others) was filed before the Apex Court in which vide order dated 01.07.2021, the order passed by the Division Bench in the Special Appeal and also the order passed in the writ petition was stayed and it was directed that the respondents shall pay the current salary to the appellants. Due to non compliance of the said order, a contempt petition was filed.

7. Learned counsel for the applicant argued that the applicant is one of the appellants before the Apex Court and he is the petitioner No.103 in the array of petitioners therein. The contempt petition was ordered to be closed vide order dated 01.10.2021, in view of the statement made in the matter on behalf of the State that they are ready and willing to pay the current salary to the petitioners from the date of passing of the order.

8. Learned counsel has argued that in identical matters, other teachers have been granted anticipatory bail/interim anticipatory bail by co-ordinate Benches of this Court. The order of the Apex Court has been considered in some of the matters and anticipatory bail has been granted to them. Learned counsel has placed before this Court annexure 7 to the affidavit in support of the anticipatory bail application and has placed the orders of other persons who have been granted anticipatory bail/interim anticipatory bail. It is argued that as such the applicant is also entitled to be released on anticipatory bail as the same is a new and fresh ground now.

9. Per contra, learned Additional Advocate General ably assisted by learned Additional Government Advocate appearing for the State of U.P. have argued that the first anticipatory bail application of the applicant was rejected by a detailed order on merits. It is argued that even the ground of parity with some of the persons being Lokendra Pal Singh and 17 others was considered by the said court. It is argued that the applicant is not cooperating in the investigation at all. He has been called upon to provide the documents but he has till date not provided any document which would let the investigation proceed. It is argued that left with no other option the Investigating Officer has moved various applications before the concerned trial court for issuance of non bailable warrant against the applicant but no order has been passed till date by the said court.

10. It is argued that due to non cooperation of the applicant, the investigation in the matter is pending. The applicant is even not responding to the call of the Investigating Officer to provide the documents to him which would let the investigation proceed and conclude. It is argued that even in parcha No.11 dated 08.06.2021, the Investigating Officer has made a note about persuasion of his application for issuing non bailable warrant against the applicant.

11. The Section 438 of the Code of Criminal Procedure, 1973 as introduced in the State of Uttar Pradesh on 06.06.2019 reads as follows:--

"438. (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:--

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact 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

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.

(2) Where the High Court or, as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1), the Court shall indicate therein the date, on which the application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit, and if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:--

(i) that the applicant shall make himself available for interrogation by a police officer as and when required;

(ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person 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) that the applicant shall not leave India without the previous permission of the Court; and

(iv) such other conditions as may be imposed under sub - section (3) of section 437, as if the bail were granted under that section.

Explanation : The final order made on an application for direction under sub - section (1); shall not be construed as an interlocutory order for the purpose of this Code.

(3) Where the Court grants an interim order under sub - section (l), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(4) On the date indicated in the interim order under sub - section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order.

(5) The High Court or the Court of Session, as the case may be, shall finally dispose of an application for grant of anticipatory bail under sub-section (l), within thirty days of the date of such application.

(6) Provisions of this section shall not be applicable,--

(a) to the offences arising out of, --

		(i) the Unlawful Activities (Prevention) Act, 			1967;
 
		(ii) the Narcotic Drugs and Psychotropic 			Substances Act, 1985;
 
		(iii) the Official Secrets Act, 1923;
 
		(iv) the Uttar Pradesh Gangsters and Anti 			Social Activities (Prevention) Act, 1986.
 

 
(b) in the offences, in which death sentence can be awarded.
 

 
(7) 	If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."
 

 

12. In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra : (2011) 1 SCC 694, the Apex Court, after considering its earlier judgments, laid down certain factors and parameters to be considered while considering application for an anticipatory bail. In para 112 it has been held as under:

"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i). The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii). The antecedents of the applicant including the fact as to whether the accused 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;

(iv). The possibility of the accused's likelihood to repeat similar or the other offences;

(v). Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi). Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii). The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;

(viii). While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix). The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x). Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

13. In Niranjan Hemchandra Sashittal v. State of Maharashtra : (2013) 4 SCC 642, the Apex Court observed in para 26 as follows:

"26: That corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with constitutional morality."

The observation was on intolerance to any kind of corruption bereft of its degree.

14. In Asian Resurfacing of Road Agency Private Limited v. Central Bureau of Investigation : (2018) 16 SCC 299, the Apex Court observed that the cancer of corruption has, as we all know, eaten into the vital organs of the State. Cancer is a dreaded disease which, if not nipped in the bud in time, causes death.

15. In the case of Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379, (though the judgement was partly overruled in the case of Sushila Aggarwal Vs. State (NCT of Delhi : (2020) 5 SCC 1 but on a different count) the Apex Court has held that anticipatory bail being an extra-ordinary privilege should be granted only in exceptional cases. The judicial discretion conferred upon the Court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail. It is further held that "parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the Court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the Court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."

16. In the case of P. Chidambaram v. Directorate of Enforcement : (2019) 9 SCC 24, the Apex Court has held that the power under Section 438 Cr.P.C. is an extraordinary power and the same was to be exercised sparingly. It is also held that privilege of the pre-arrest bail should be granted only in exceptional cases.

17. The importance and relevance of custodial interrogation of the accused in a case and also that the Courts should be slow in grant of bail / prearrest bail has been elaborated by the Apex Court in P. Chidambaram's case (supra) which is as follows:

"74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State v. Anil Sharma [State v. Anil Sharma, (1997) 7 SCC 187 : 1997 SCC (Cri) 1039] , the Supreme Court held as under : (SCC p. 189, para 6)

"6. We find force in the submission of CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well-ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."

75. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B. [Adri Dharan Das v. State of W.B., (2005) 4 SCC 303 : 2005 SCC (Cri) 933] , it was held as under : (SCC p. 313, para 19)

"19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code."

76. In Siddharam Satlingappa Mhetre v. State of Maharashtra : (2011) 1 SCC 694, the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

77. After referring to Siddharam Satlingappa Mhetre judgment and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar, the Supreme Court held as under : (SCC p.386, para 19)

"19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran : (2007) 4 SCC 434, State of Maharashtra v. Modh. Sajid Husain Mohd. S. Husain : (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal : (2008) 13 SCC 305.)

18. In the latest case of Supreme Bhiwandi Wada Manor Infrastructure (P) Ltd. v. State of Maharashtra : (2021) 8 SCC 753, the Apex Court while considering the powers of High Court in grant of anticipatory bail has observed as follows:-

"25. The High Court, in granting anticipatory bail under Section 438 CrPC in the first two appeals and following that order in disposing of the challenge to the order of the Sessions Judge in the companion appeals, has evidently lost sight of the nature and gravity of the alleged offence. This Court in Sushila Aggarwal v. State (NCT of Delhi) [Sushila Aggarwal v.State (NCT of Delhi), (2020) 5 SCC 1 : (2020) 2 SCC (Cri) 721] has enunciated the considerations that must govern the grant of anticipatory bail in the following terms : (SCC p. 110, para 92)

"92.3.... 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. ...

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."

19. Anticipatory bail being an extra-ordinary remedy, should be resorted to only in a special case. The case prima facie indicates involvement of the applicant in the offence-in-question as he was the beneficiary by making use of the forged mark-sheet/degree. The applicant has not established any special circumstance. No reason is found to falsely implicate the present applicant.

20. It is settled principle of law that departmental and criminal proceedings are distinct and have different standards of proof. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. The issue drawing attention of the Apex Court is with regards to the termination of the applicant. The present First Information Report is with regards to the filing of the forged document being the B.Ed. mark-sheet/degree on the basis of which employment was sought and was given. The matter of termination and lodging of the First Information Report / the investigation / trial if any, are altogether two different proceedings and are not in any manner linked with each other.

21. By the act of the applicant of seeking appointment on the basis of a forged mark-sheet/degree, one deserving candidate has lost his seat and chance of appointment and it may be a life long loss for many reasons like crossing the bracket of prescribed age and many other factors.

22. After having heard learned counsels for the parties and perusing the records, it is evident that the first anticipatory bail application of the applicant was rejected on 15.06.2021 on merits. In so far as, the orders of the other persons are concerned who have been granted anticipatory bail/interim anticipatory bail, the same are not binding on this Court. While rejecting the first anticipatory bail application, the Court was of the opinion that during investigation even at times custodial interrogation may be necessary to reach the roots of the crime, the same cannot be overlooked. Therefore, looking into the gravity of the offence, nature of offence and the legal position enumerated above, this Court is of the view that the anticipatory bail application has no merit and is liable to be rejected.

23. Accordingly, the anticipatory bail application is rejected.

Order Date :- 21.12.2021

M. ARIF

(Samit Gopal, J.)