SABA/5/2022
2022 Latest Caselaw 1677 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

            THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA

                          06th JUNE, 2022

 SECOND ANTICIPATORY BAIL APPLICATION NO. 05 of 2022


Between:

Rahul Vishnoi                                         ...Applicant

and

State of Uttarakhand.                               ...Respondent


Counsel for the Applicant         : Mr. Bhupesh Kandpal.

Counsel for the Respondent :        Mr. Pratiroop Pandey,
                                    learned AGA for the State.

Hon'ble Alok Kumar Verma,



            This is the Second Anticipatory Bail Application.

The First Anticipatory Bail Application (No.04 of 2022) was

rejected by this Court vide order dated 16.02.2022.

2.          Facts

, to the limited extent necessary, are that

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 said Special Investigation Team. After enquiry, she

lodged a First Information Report on 14.10.2019 against

Manav Bharti Vishwa Vidyalaya, Solan, Himachal Pradesh.

After completion of the investigation, the charge-sheet

was filed against the present applicant.

3. During the investigation, evidence are found

that the present applicant was the owner of N Power

Academy. The said Academy was run and managed by the

present 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 scholarship of the said students

and tuition fee. 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.

4. Apprehending his arrest, the present applicant -

accused had moved an application for anticipatory bail

before the District and Sessions Judge, Haridwar in

connection with the First Information Report No.357 of

2019, registered with Police Station SIDCUL, District

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

468 and 471 of IPC. On 24.12.2021, the learned In-charge

District and Sessions Judge, Haridwar had rejected the

said application for anticipatory bail.

5. The First Anticipatory Bail Application (No.04 of

2022), under Section 438 of the Code of Criminal

Procedure, 1973, was filed by the present applicant before

this Court seeking anticipatory bail in the event of his

arrest. After filing the charge-sheet, the said First

Anticipatory Bail Application (No.04 of 2022) was filed by

the present applicant.

6. Heard Mr. Bhupesh Kandpal, the learned counsel

for the applicant and Mr. Pratiroop Pandey, the learned

AGA for the State.

7. Mr. Bhupesh Kandpal, the learned counsel

appearing for the applicant, argued that the applicant was

not named in the First Information Report, but,

subsequently, he was named when the charge-sheet was

filed. The charge-sheet was filed against the present

applicant on the basis of the statement of a witness,

namely, Anupama Thakur, the then Registrar of Manav

Bharti Vishwa Vidyalaya, Solan, Himachal Pradesh, who is

also an accused, but, the legal preposition of law was

ignored and the charge-sheet was filed. The learned

counsel for the applicant further submitted that N Power

Academy was not fictitious Academy. The said Academy

was running in the building of Ashok Kumar Gupta. After

the rejection of the First Anticipatory Bail Application, the

wife of the applicant found certain relevant records i.e.

bank record/ statement, which shows that the scholarship

amounts were paid to the students. The allegations

against the applicant are highly improbable and further in

order to show the bona fide, the applicant is continuously

requesting that he is ready and willing to submit the bank

guarantee before the authority. The learned counsel for

the applicant further argued that the allegations against

the applicant are not maintainable and are liable to be set

aside.

8. On the other hand, Mr. Pratiroop Pandey, the

learned AGA appearing for the State, has vehemently

opposed the maintainability of this Second Anticipatory

Bail Application and submitted that the present Second

Anticipatory Bail Application is not maintainable. He

further submitted that the applicant has not filed the said

bank record.

9. At the time of hearing on the First Anticipatory

Bail Application, Mr. Bhupesh Kandpal, the learned counsel

for the applicant, had argued that the applicant has been

implicated in this matter; Manav Bharti Vishwa Vidyalaya,

Solan, was running by Manav Bharti Charitable Trust; the

said University had sold twenty six thousand fake degrees

across the seventeen States in over eleven years; total

forty one thousand degrees were issued by the said

University, but, only five thousand 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.50,00,000/- just to show his bona

fide.

10. At the time of the hearing on the First

Anticipatory Bail Application, Mr. T.C. Agarwal, the learned

Deputy Advocate General for the State, had opposed the

First Anticipatory Bail Application and had 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;

an amount of Rs.02,59,20,300/- was released by the

Social Welfare Department to the present applicant; the

said amount was deposited in the bank account of the

present applicant, and, the said amount was embezzled by

the present applicant.

11. At the time of hearing on the First Anticipatory

Bail Application, it was found that 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' time to surrender before the concerned trial

court. The said application, filed under Section 482 of the

Code, was decided accordingly. Even availing the sufficient

opportunity and ten days' time to surrender before the

concerned trial court, the applicant had requested further

ten days' time to surrender, but, the applicant did not

surrender before the concerned court. Therefore, non-

bailable warrant, process under Section 82 and Section 83

of the Code of Criminal Procedure were issued against the

applicant.

12. On 16.02.2022, this Court had made the

following order:-

"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 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 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."

13. In Ganesh Raj Vs. State of Rajasthan and

Others, 2005 ALL MR (Cri) Journal 200 (Rajasthan

High Court) (Jaipur Bench) (Full Bench), the Hon'ble

Rajasthan High Court observed, "Having scanned the

language of Sections 438 and 439 Cr.P.C. we find that

there is no substantial difference between Sections 438

and 439, as regards the appreciation of the case as to

whether or not a bail is to be granted. The only distinction

is that in a cases under Section 438, the person who

approaches the Court apprehends that he may be arrested

without any basis whereas under Section 439, such person

approaches the Court after his arrest".

14. In State of Maharashtra Vs. Captain

Buddhikota Subha Rao, AIR 1989 SC 2292, the

Hon'ble Supreme Court has observed, ".....Once that

application was rejected there was no question of granting

a similar prayer. That is virtually overruling the earlier

decision without there being a change in the fact-situation.

And when we speak of change, we mean a substantial one

which has a direct impact on the earlier decision and not

merely cosmetic changes which are of little or no

consequence. ......"

15. In State of Madhya Pradesh Vs. Kajad,

(2001)7 SCC 673, the Hon'ble Supreme Court has held

that it is true that successive bail applications are

permissible under the changed circumstances. But without

the change in the circumstances, the second bail

application would be deemed to be seeking review of the

earlier judgment which is not permissible under criminal

law.

16. The applicant had opportunity to raise all his

contentions on the previous occasion. It is not open to the

applicant to make successive anticipatory bail application

even on the grounds already rejected by this Court earlier.

17. On overall consideration of the application and

also in the fact that any change in circumstances is not

established, after rejection of the first anticipatory bail

application on merit, I do not find any change in

circumstances to entertain present second anticipatory bail

application. The Second Anticipatory Bail Application does

not deserve to be entertained. Consequently, the present

Second Anticipatory Bail Application is rejected.

___________________ ALOK KUMAR VERMA, J.

Dt: 6th June, 2022 Pant/