Uttarakhand High Court
Suhail Ahmad vs State Of Uttarakhand And Others on 22 December, 2020
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL
Anticipatory Bail Application No.39 of 2020
Suhail Ahmad .......Applicant
vs.
State of Uttarakhand and others ....Respondents
Hon'ble Alok Kumar Verma, J.
Apprehending his arrest, the applicant-accused moved an application for anticipatory bail before learned Sessions Judge, Dehradun in connection with Crime No.447 of 2019, registered with Police Station Sahaspur, District Dehradun for the offence punishable under Sections 409, 420, 467, 468 and 471 of the I.P.C. Learned Sessions Judge, Dehradun vide order dated 06.11.2020 rejected the application for anticipatory bail.
2. The application under Section 438 of the Code of Criminal Procedure is filed by the applicant before this Court seeking anticipatory bail in the event of his arrest.
3. Learned Deputy Advocate General requested further time to file objection to the supplementary affidavit filed by the applicant.
4. Mr. R.P. Nautiyal, learned Senior Advocate requested to consider to grant interim protection to the applicant.
5. Heard Mr. R.P. Nautiyal, learned Senior Advocate assisted by Mr. Navneet Kaushik, learned counsel for the applicant and Mr. S.S. Adhikari, learned Deputy Advocate 2 General assisted by Mr. P.S. Uniyal, learned Brief Holder for the State.
6. Learned Senior Advocate submitted that under the aegis of Azad Educational Society, an institute Himalayan Institute of Pharmacy and Research, Atak Farm Post Rajawala, Dehradun came into existence in the year, 2006. The said Institute used to impart under graduate education in the field of B.Pharma, D.Pharma, M. Pharma, B.Sc. Agriculture, B.Com and B.B.A. The applicant, aged about 61 years, is the chairman of the Society. There is no allegation in the matter that the scholarship amount had not been given to the students. The allegation is regarding the disparity in admission and enrollment of the students. For academic session 2011-12 and 2012-13, the system were offline for providing the scholarship. The scholarship amounts were received in the account of Institute. As per Government Order No.694 of 2006, only scholarship amount was to be refunded to the students, but, the Institute refunded the entire amount including the tuition fees in the students' account and thereafter, only tuition fees were taken back by the Institute. In academic session 2013-14, no student was admitted in the Institute. In the academic sessions 2014-15, 2015-16 and 2016-17 as many as 189, 158 and 67 students respectively were enrolled and admitted and they were provided scholarship. The applicant has no criminal history. Learned Senior Advocate further submitted that learned Sessions Judge earlier had granted interim protection to the applicant.
7. Learned Deputy Advocate General opposed the application, however, he fairly conceded the submissions of learned Senior Advocate that there is no allegation against the applicant that he did not provide the scholarship amount to the students and the applicant has no criminal history.
38. The scheme of anticipatory bail under Section 438 of Cr.P.C. is introduced by the State of Uttarakhand vide Act No. 22 of 2020. Section 438 of the Code 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.
4Explanation: 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.
9. Personal liberty under Article 21 of the Constitution of India is very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.
510. Having considered the submissions of learned counsel for both the parties and in the facts and circumstances of the case, without expressing any opinion as to the merits of the case, this Court directs that in the event of arrest, the applicant-accused Suhail Ahmad shall be released on bail on furnishing a personal bond of Rs.40,000/- with two reliable sureties each in the like amount to the satisfaction of the Investigating Officer/Arresting Officer on the following conditions:-.
(i) the applicant shall make himself available for interrogation by the Investigating Officer as and when required;
ii) the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case;
iii) The applicant shall not leave India without prior permission of the Court and if is holding a passport, shall surrender the same with the Investigation Officer, as prayed by learned counsel for the applicant.
11. Post on 08.01.2021 for final arguments on the application for anticipatory bail.
12. Learned Deputy Advocate General may file objection
(s), if any, to the supplementary affidavit meanwhile.
(Alok Kumar Verma, J.) 22.12.2020 JKJ/Sanjay