Uttarakhand High Court
ABA/122/2021 on 27 August, 2021
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
ANTICIPATORY BAIL APPLICATION NO. 122 of 2021
27TH AUGUST, 2021
Between:
Ruchir Gupta ...Applicant
and
State of Uttarakhand ...Respondent
Counsel for the Applicant : Mr. Navneet Kaushik.
Counsel for the Respondent : Mr. T.C. Aggarwal, 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 Ruchir
Gupta, aged about 42 years, moved an application for
anticipatory bail before the learned Additional District and
Sessions Judge/F.T.C., Roorkee, District Haridwar in
connection with Case Crime No.292 of 2020, registered
with Police Station Bhagwanpur, District Haridwar for the
offence under Sections 409, & 420 of I.P.C. The learned
Additional District & Sessions Judge/F.T.C., Roorkee,
District Haridwar rejected the said application for
anticipatory bail vide its order dated 16.06.2021.
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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. In the scholarship scam, vide letter dated
17.04.2018 of the Home Department of the State of
Uttarakhand, a Special Investigation Team (S.I.T.) was
constituted. The informant of this case Khajan Singh, Sub-
Inspector, was appointed as a member of the Special
Investigation Team (SIT). After inquiry, the informant
Khajan Singh lodged an FIR on 14.06.2020 against the
owner/manager of the College of Advance Technology,
Roorkee, District Haridwar. During the investigation, the
Investigating Officer recorded the statements of the
witnesses under Section 161 of the Code of Criminal
Procedure and perused the concerned records of the
Institute. After completion of the investigation, he filed a
charge-sheet against the present applicant under Sections
409 & 420 of I.P.C. After filing the charge-sheet and after
taking the cognizance by the learned trial court, this
anticipatory bail application has been filed by the present
applicant.
4. Heard Mr. Navneet Kaushik, the learned counsel
for the applicant and Mr. T. C. Aggarwal, the learned
Deputy Advocate General assisted by Mr. P.S. Uniyal, the
learned Brief Holder for the State.
5. Mr. Navneet Kaushik, the learned counsel for the
applicant, submitted that the applicant, Chairman of the
Institute-in-question, namely, College of Advance
Technology, Roorkee, District Haridwar, has been
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implicated in this matter; there was not a single student in
his Institute, who had not enrolled; there was not a single
fake student for whom scholarship was claimed; in the
year 2014, the scholarship was deposited directly in the
accounts of the concerned students; his Institute had
received total Rs.5,61,67,780/- as a scholarship amount;
earlier, the applicant had filed a Criminal Writ Petition
No.805 of 2020, under Article 226 of the Constitution of
India, for quashing the impugned FIR; in compliance of the
order passed in that criminal writ petition, the applicant
had deposited a sum of Rs. 1.00 Crore in the account of
Social Welfare Department; according to the Investigating
Officer, the scholarship was claimed for 56 students of the
members of the Scheduled Castes; all these 56 students
had studied in his Institute and scholarship were paid to
these students; charge-sheet has already been filed; the
applicant had cooperated with the Investigating Officer
during the investigation.
6. On the other hand, Mr. T. C. Aggarwal, the
learned Deputy Advocate General for the State, opposed
the anticipatory bail application and submitted that an
instruction has been received by him from the
Investigating Officer that the Investigating Officer is not
going to arrest the present applicant; during the course of
the investigation, it has come into the light that the
applicant being the Chairman of the said Institute, was the
account-holder of the said Institute and an amount of
Rs.44,79,345/- was withdrawn and embezzled by him.
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7. The scheme of the 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.
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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.
8. Admittedly, the present applicant was the
Chairman of the Institute-in-question, namely, College of
Advance of Technology, Roorkee, District Haridwar.
During the investigation, it is found that the said Institute
had not provided the scholarship amount, obtained from
the Social Welfare Department, to all the actual
beneficiaries. Most of the Scheduled Castes students
informed that they had not obtained any scholarship and
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no education had been taken in the said Institute by some
of the alleged students. During the course of the
investigation, it is found that the present applicant being
the Chairman of the said Institute was account-holder of
the Institute and scholarship amount was withdrawn by
him. According to the charge-sheet, Rs.44,79,345/- of the
scholarship amount was embezzled by the present
applicant. From the perusal of the evidence, collected
during the investigation, it prima facie appears that the
present applicant was involved in this scholarship scam.
9. In the case of Siddharam Satlingappa Mhetre
vs. State of Maharashtra, (2011) 1 SCC 694, the
Hon'ble Supreme Court, after considering its earlier
judgment, laid down certain factors and parameters to be
considered while considering application for an anticipatory
bail.
"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
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of sections 34 and 149 of the Indian 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."
10. Social Justice is recognized by the Preamble of
the Constitution of India. The provision of Social Justice is
also made in Clause (4) of Article 15 of the Constitution of
India. This Clause prescribes, protection and safeguards of
any socially and educationally backward classes of citizens
or of Scheduled Castes and the Scheduled Tribes. Clause
(4) of Article 15 makes a special application of the
principle of reasonable classification. Under this Clause,
the State is empowered to make special provisions for the
Scheduled Castes and the Scheduled Tribes. The State of
Uttarakhand had issued Government Orders, whereby the
process of scholarship had been fixed to be given by the
Department of Social Welfare to the students belonging to
the Scheduled Castes, the Scheduled Tribes, Backward
Classes and Minority Classes. These scholarships are given
to encourage the parents from these Classes to send their
wards to schools and colleges, and to ensure that
education is not denied due to the poor financial condition
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of their families. The object of this scholarship scheme is
to support the parents of these Classes for educating their
wards.
11. In Niranjan Hem Chandra Sashittal Vs.
State of Maharashtra, (2013)4 SCC 642, the Hon'ble
Apex 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.
12. In Asian Resurfacing of Road Agency
Private Limited and another Vs. Central Bureau of
Investigation, (2018)16 SCC 299, the Hon'ble
Supreme 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.
13. In Nimmagadda Prasad Vs. Central Bureau
of Investigation, 2014 (1) CCSC 120, the Hon'ble Apex
Court observed unfortunately, in the last few year, the
country has been seeing an alarming rise in white collar
crimes, which has affected the fiber of the country's
economic structure. In controvertibly, economic offences
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have serious repercussions on the development of the
country as a whole.
14. In the case of Jai Prakash Singh vs. State of
Bihar and another, 2012 (2) CCSC 588 (SC), the
Hon'ble Supreme 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.
15. Being an extra-ordinary remedy, it should be
resorted to only in a special case. The evidence, collected
during the investigation, prima facie indicates involvement
of the present applicant in the offence-in-question. The
applicant has not established any special circumstance. No
reason is found to falsely implicate the present applicant.
16. Therefore, looking into the gravity of the
offence, this Court is of the view that the anticipatory bail
application has no merit and is liable to be rejected.
17. Consequently, the application for anticipatory
bail is rejected.
18. 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 the case.
___________________
ALOK KUMAR VERMA, J.
Dt: 27th August, 2021 JK/Neha