ABA/4/2022
2022 Latest Caselaw 254 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                  16TH FEBRUARY, 2022

   ANTICIPATORY BAIL APPLICATION NO. 04 of 2022




Between:

Rahul Vishnoi.                                ...Applicant


and


State of Uttarakhand and others.        ...Respondents

Counsel for the Applicant : Mr. Bhupesh Kandpal.

Counsel for the Respondents : Mr. T.C. Agarwal, learned Deputy Advocate General assisted by Mr. P.S. Uniyal, learned Brief Holder for the State.

Hon'ble Alok Kumar Verma,

Apprehending his arrest, the applicant-accused

Rahul Vishnoi moved an application for anticipatory bail

before the learned District and Sessions Judge, Haridwar

in connection with the First Information Report No.0357 of

2019, registered with Police Station SIDCUL, District

Haridwar for the offence under Sections 409, 420, 467,

468, 471 of IPC. On 24.12.2021, the learned Incharge

District and Sessions Judge, Haridwar rejected the said

application for anticipatory bail.

2. This application, under Section 438 of the Code

of Criminal Procedure, 1973, is filed by the applicant

before this court seeking anticipatory bail in the event of

his arrest.

3. Heard Mr. Bhupesh Kandpal, the learned counsel

for the applicant and Mr. T. C. Agarwal, the learned

Deputy Advocate General assisted by Mr. P.S. Uniyal, the

learned Brief Holder for the State through video

conferencing.

4. According to the present case, in the scholarship

scam matter, vide letter dated 17.04.2018 of the Principal

Secretary, Home of the Government of Uttarakhand a

Special Investigation Team (SIT) was constituted. Sub-

Inspector Lalita Chufal, the informant of this matter, was

appointed as a member of the Special Investigation Team.

After enquiry, she lodged an FIR on 14.10.2019 against

Manav Bharti Vishwa Vidyalaya, Solan, Himachal Pradesh.

After completion of the investigation, the charge-sheet has

been filed against the present applicant.

5. During investigation, evidence are found that

the present applicant was the owner of N Power Academy.

The said Academy was run and managed by the applicant.

The said Academy of the applicant was not recognized by

Manav Bharti Vishwa Vidyalaya, Solan, Himachal Pradesh.

The owner of the said Academy had forwarded the list of

the concerned students to the Social Welfare Department

to get tuition fee and scholarship of the said students. The

Social Welfare Department had released the scholarship

amount including the tuition fee to the said Academy and

the said amount was deposited in the account of the

present applicant, the owner of the said Academy.

6. Mr. Bhupesh Kandpal, the learned counsel for

the applicant, submitted that the applicant has been

implicated in this matter; Manav Bharti Vishwa Vidyalaya,

Solan was running by the Manav Bharti Charitable Trust;

the said University had sold 26,000 fake degrees across 17

States in over 11 years; total 41,000 degrees were issued

by the said University, but, only 5,000 degrees were found

to be genuine; the said University was declared fake

University; however, at the relevant point of time i.e.

2011-2012, the said University was genuine University;

the scholarship and tuition fee, received from the Social

Welfare Department, were transferred to the said

University by the applicant; the applicant is ready to

deposit a Draft of Rs. 50 lakhs just to show his bona fide.

7. Mr. T.C. Agarwal, the learned Deputy Advocate

General, opposed the present application. He submitted

that during the investigation, evidence are found against

the applicant, who was the owner of N Power Academy;

the said Academy was fictitious academy; according to the

statement of the Registrar of Manav Bharti University,

recorded during the investigation, the said N Power

Academy was not given recognition by the said University.

He further submitted that Rs.2,59,20,300/- was released

by the Social Welfare Department to the present applicant;

the said amount was deposited in the bank account of the

applicant, and, the said amount was embezzled by the

applicant.

8. The learned counsel for the State further

submitted that earlier, the applicant had filed an

application under Section 482 of the Code of Criminal

Procedure, 1973 and in that matter, he had requested for

ten days' to surrender before the concerned trial court;

the said application was decided accordingly. The learned

counsel for the State submitted that even availing the

sufficient opportunity and ten days' time to surrender

before the concerned trial court, the applicant requested

further ten days' time to surrender, but, the applicant did

not surrender before the concerned court. The learned

counsel for the State further submitted that in the present

matter, non-bailable warrant and process under Section 82

and Section 83 of the Code of Criminal Procedure are

issued against the applicant, therefore, the anticipatory

bail application is not maintainable.

9. The learned counsel for the applicant has relied

on a judgment dated 01.02.2022, passed by the Hon'ble

High Court of Punjab and Haryana at Chandigarh in

"Mamta Giri vs. State of U.T. Chandigarh", and

submitted that the anticipatory bail application is

maintainable even though non-bailable warrant and

process under Section 82 and Section 83 of the Code of

Criminal Procedure are issued.

10. The scheme of Section 438 of the Code of

Criminal Procedure is introduced by the State of

Uttarakhand vide Act No.22/2020. Section 438 of the Code

of Criminal Procedure, 1973 reads as follows:-

(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 anv 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 Uttarakhand (Uttar Pradesh Gangsters and Anti- Social Activities (Prevention) Act, 1986;) Adaptation and Modification Order, 2002

(v) sub-section(3) of Section 376 or Section 376AB or Section 376DA or Section 376DB of the Indian Penal Code;

(vi) chapter 6 of the Indian Penal Code, 1860, viz, offences against the state (except Section 129);

(vii) The Protection of Children from Sexual Offences (POCSO) Act, 2012;

(b) in the offences, in which death sentence may 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.

11. The society has a vital interest in grant or

refusal of bail because every criminal offence is the

offence against the society. Therefore, the court must take

into account the statutory scheme under Section 438 of

the Code of Criminal Procedure, and, balance the concerns

of the Investigating Agency, the society at large with the

interest of the applicant.

12. Admittedly, the scholarship amount was

released to N Power Academy and the said amount was

deposited in the bank account of the present applicant.

According to the learned counsel for the applicant, the said

amount was transferred by the applicant to the University.

However, no evidence has been filed before this court

regarding this plea. This fact is also admitted between the

parties that earlier, the applicant had filed an application

under Section 482 of the Code of Criminal Procedure, and

the applicant requested ten days' time to surrender before

the concerned trial court. The said application was decided

accordingly. After deciding the said application, the

applicant again filed an application for further ten days'

time to surrender before the concerned Court. The time

was granted. The applicant did not surrender before the

concerned court. A non-bailable warrant and process

under Section 82 and Section 83 of the Code of Criminal

Procedure has been issued by the concerned Court.

13. In "Prem Shankar Prasad vs. The State of

Bihar and Another, L.L. 2021 SC 579", the Hon'ble

Supreme Court has held on 21.10.2021, "It is clear from

the above decision that if anyone is declared as an

absconder/proclaimed offender in terms of Section 82 of

the Code, he is not entitled to the relief of anticipatory

bail".

14. In Directorate of Enforcement vs. Ashok

Kumar Jain, (1998) 2 SCC 105, the Hon'ble Supreme

Court has held that, in economic offences, the accused is

ordinarily not entitled to anticipatory bail.

15. In Niranjan Hem Chandra Sashittal Vs.

State of Maharashtra, (2013)4 SCC 642, the Hon'ble

Supreme Court observed 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. The Hon'ble Apex Court further observed that

immoral acquisition of wealth destroys the energy of the

people believing in honesty, and history records with

agony how they have suffered; and the only redeeming

fact is that collective sensibility respects such suffering as

it is in consonance with constitutional morality. The

emphasis was on intolerance to any kind of corruption

bereft of its degree.

16. In Subramanian Swamy Vs. C.B.I., (2014)8

SCC 682, the Constitution Bench of the Hon'ble Supreme

Court observed that corruption is an enemy of the nation

and tracking down corrupt public servants and punishing

such persons is a necessary mandate of the 1988 Act.

17. The 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 offence. Being an extraordinary remedy, it should be

restored to only in a special case.

18. It would be inappropriate to discuss the

evidence in depth at this stage because it is likely to

influence the trial court. But, the evidence, collected

during the investigation, prima facie indicate involvement

of the applicant in the offence in question. No reason is

found to falsely implicate the applicant.

19. In view of the facts and circumstances of the

case, this Court does not find any exceptional ground to

exercise its discretionary jurisdiction under Section 438 of

the Code of Criminal Procedure to grant anticipatory bail.

Therefore, this Court is of the view that the anticipatory

bail application has no merit and is liable to be rejected.

20. The Anticipatory Bail Application No.4 of 2022 is

hereby rejected.

21. It is clarified that the observations made

regarding the anticipatory bail application are limited to

the decision, in the light of the facts, provided by the

parties at this stage, as to whether the anticipatory bail

application should be allowed or not. The said

observations shall not effect the trial of this case.

___________________ ALOK KUMAR VERMA, J.

Dt: 16th February, 2022 Neha