Uttarakhand High Court
Geeta Ram Nautiyal vs State Of Uttarakhand And Others on 17 October, 2019
Equivalent citations: AIRONLINE 2019 UTR 805
Bench: Ramesh Ranganathan, Alok Kumar Verma
RESERVED
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (Criminal) No. 774 of 2019
Geeta Ram Nautiyal ..........Petitioner
Vs.
State of Uttarakhand and others ........Respondents
with
Writ Petition (Criminal) No. 969 of 2019
Geeta Ram Nautiyal ..........Petitioner
Vs.
State of Uttarakhand and others ........Respondents
Presents:
Mr. A.S. Rawat, Senior Advocate, assisted by Mr. Gopal K. Verma, Advocate for the petitioner.
Mr. Pratiroop Pandey, A.G.A. for the State.
Coram : Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Kumar Verma, J.
Reserved on: 30.09.2019 Delivered on: 17.10.2019 Per : Alok Kumar Verma, J.
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 issued Government Order dated 28.06.2006 and Government Order dated 25.07.2006, 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.
2These 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 of their families. The object of this scholarship scheme is to support the parents of these Classes for educating their wards. This scheme is collectively funded by the Central and the State Governments.
2. One Shri Rajkumar had complained to various constitutional and other authorities on 19.12.2015 in respect of illegality and irregularity in distributing these scholarships to students of the Scheduled Castes and the Scheduled Tribes by various private Institutions in collusion with the persons of the Department of Social Welfare. A Special Investigation Team (SIT, for short), headed by the 4th respondent, had been constituted by the State Government. The SIT enquired into the matter and, after enquiry the 3rd respondent, In-charge Inspector/a member of SIT, lodged a First Information Report on 01.12.2018 at Police Station SIDCUL, District Haridwar, stating that the SIT was constituted for enquiry against various self-funded educational Institutions with regard to embezzlement of scholarship funds. During enquiry, the documents which had been received from different sources were thoroughly perused. In the first instance, it was found that various self-financed educational institutions had misused the State exchequer for their own benefit, and for the purpose of harming the Government. The distribution of scholarship to the Scheduled Castes and the Scheduled Tribes had been illegally shown by various institutions. These various self-financed educational institutions had not provided the scholarship, obtained from the State of Uttarakhand, to the actual beneficiaries, i.e. the Scheduled Castes and the Scheduled Tribes students. They used the said scholarship fund for their own use. The following irregularities were found 3 :- (1) on many occasions, it was seen that the Bank Accounts of students, allegedly belonging to the Scheduled Castes and the Scheduled Tribes, were opened in the same Bank. (2) In many cases, the same mobile numbers had been used in the Bank Accounts of many students. (3) In many cases, students had been admitted in two educational institutes in the same session. (4) In many cases, it had been observed that no education had been taken in the educational institutions by the related students. (5) In many cases, the scholarship of the students were deposited in the accounts of the institutes instead of depositing the same in the account of the students, however, these amounts had been shown as distributed in cash by the institutions. From the initial enquiry, it was found that the various self-financed educational institutions had not provided the scholarship obtained from the State of Uttarakhand to the actual beneficiaries, e.g. the students belonging to the Scheduled Castes and the Scheduled Tribes. It was revealed, in the first instance, that the scholarship money was misused, and thereby harm was caused to the State Government. The said FIR was registered as Crime No. 0496 of 2018 under Sections 420, 120-B and 409 of the Indian Penal Code against unknown persons. The matter is still under investigation.
3. Writ Petition (PIL) No. 228 of 2018 was filed before the Division Bench of this Court seeking a writ of mandamus to appoint the CBI, or to initiate a judicial enquiry, for taking appropriate action in accordance with law and to also monitor and supervise the entire investigation in this scholarship scam, involving various education institutions in the State of Uttarakhand, which had resulted in several hundred crores of rupees of public funds, meant to be paid as scholarship to the Scheduled Caste and the Scheduled Tribe students, being swindled by these institutions and they, along with brokers 4 and touts, had siphoned-off several hundred crores of rupees earmarked as scholarship for these socially and educationally backward class students belonging to the Scheduled Castes and the Scheduled Tribes category, and the entire issue was now sought to be hushed up by senior bureaucrats and ministers in the State Government. The Division Bench of this Court had noted the contents of the report of the Additional Secretary, Social Welfare Department dated 27.03.2017, which disclosed that even on a random sampling, for the years 2011- 2012 to 2014-2015, of the scholarship amounts paid to the Scheduled Caste students, in the two districts of Dehradun and Haridwar, serious financial irregularities had come to light, and it was necessary for a detailed enquiry to be caused, on this extremely serious issue, by a High Power Committee. The Chief Minister of the State had, in April, 2017, directed an enquiry to be caused by the SIT. The Division Bench, while observing that no investigation had commenced for more than 20 months from April, 2017 till the date of lodging FIR No.0496 on 01.12.2018 requested the Chief Secretary, Government of Uttarakhand to examine the issue and submit his report to the Court. The Division Bench also noted the submission of the in-charge of the SIT that, despite several letters having been addressed by him to the District Social Welfare Department and Joint Director, no response was forthcoming necessitating his having to register an FIR based on the documents received from the private individuals examined by him. While expressing its suspicion that attempts were being made, by certain officials of the Social Welfare Department, to stonewall a probe into these grave and serious allegations of misappropriation of public funds, the Division Bench had observed that non-cooperation by the Social Welfare Department was a matter of grave and serious concern, since the very purpose of constituting the SIT, to 5 investigate into this scam of monumental proportions, would be defeated thereby. The Division Bench, after taking note of the attempts made by the Government to change Dr. T.C. Manjunath as the Chairman of the SIT, opined that the change in the SIT was only to stonewall a probe into the grave and serious allegations of misuse and misappropriation of public funds. The SIT, headed by Dr. Manjunath, Superintendent of Police, was directed to continue with its investigation and the concerned officials in the Social Welfare Department and elsewhere in the Government of Uttarakhand, as also the private institutions, were directed to extend full co- operation to the investigation being caused by the SIT, and not to cause any hindrance thereto. In the said PIL, the Division Bench had further observed that the investigation, directed to be caused into this scam allegedly running into several hundred crores, did not brook delay; amounts, meant to be paid as scholarship to students belonging to the Scheduled Castes and the Scheduled Tribes, were allegedly misappropriated by the college management, middlemen, and some government officials; the Scheduled Castes and the Scheduled Tribes students belonging to the State of Uttarakhand, and studying in several private colleges both within the State of Uttarakhand and in five other States, were deprived of the scholarship to which they were entitled to; copies of the agreements, placed on record, indicated that the loot was agreed to be shared, in the ratio of 60:40, between the colleges and the middlemen; and the lack of progress in investigation, into such a grave and serious matter, was disconcerting.
4. The petitioner herein filed Writ Petition (Criminal) No.774 of 2019 before a learned Single Judge of this Court. The learned Single Judge recorded the submissions of the State Counsel that all matters, arising from FIR No.0496 of 2018, were being heard along with WP(PIL) No.228 of 2018, 6 and directed that the matter be listed before the appropriate bench. Questioning the said order, the petitioner herein filed Special Leave to Appeal (Criminal) No.5169 of 2019. In its order dated 10.06.2019, the Hon'ble Supreme Court opined that it found no ground to interfere at that stage, and dismissed the Special Leave Petition making it clear that the application filed by the petitioner in the High Court for interim protection be considered and disposed of on its own merits as expeditiously as possible.
5. The petitioner, thereafter submitted a representation dated 02.07.2019 to the National Commission for Scheduled Tribes and, by its order passed on the same day i.e. 02.07.2019, the National Commission, while informing various officials including the Superintendent of Police, Haridwar (head of the SIT for Dehradun and Haridwar Districts) to submit facts and information in the matter, and the action taken on the allegations/matters, to the Commission within 07 days of receipt of the notice for appraisal of the Chairman of the Commission, also informed that the Chairman of the Commission desired that no action be taken against the petitioner as the matter was under
examination. They were also informed that, in case the Commission did not receive a reply from them within the stipulated time, it may exercise the powers of a Civil Court, conferred upon it under Clause (8) of Article 338A of the Constitution of India, and issue summons for their appearance in person before the Commission. As a result of the order passed by the Commission, no action was taken thereafter against the petitioner.
6. Writ Petition (PIL) No.129 of 2019 was filed before a Division Bench of this Court seeking a writ of certiorari to quash the order dated 02.07.2019 passed by the National 7 Commission for Scheduled Tribes and a writ of prohibition directing the said Commission not to proceed further in relation to the representation dated 02.07.2019, filed by the petitioner herein. In the said Writ Petition (PIL) No.129 of 2019, the Division Bench observed that it was evident from a bare reading of the representation of the petitioner herein, that, while requesting the Commission to stop his being arrested, the petitioner herein had suppressed the fact that he had already filed Writ Petition (Criminal) No.774 of 2019 before this Court on 21.05.2019, and the Special Leave to Appeal (Criminal) No.5169 of 2019 filed by him was dismissed by the Hon'ble Supreme Court on 10.06.2019. After hearing both the parties, the Division Bench had, by its order dated 17.09.2019, quashed the order of the National Commission for Scheduled Tribes dated 02.07.2019.
7. The petitioner, Joint Director, Social Welfare Department, had filed Writ Petition (Criminal) No.774 of 2019 under Article 226 of the Constitution of India seeking a writ of certiorari to quash FIR No.0496 of 2018, and a writ of mandamus to direct the respondents not to arrest him in the said FIR. While questioning the competence of the Investigating Officer to investigate into this matter, the petitioner had stated in this writ petition that he was posted presently as Secretary, Uttarakhand Scheduled Caste Commission, Dehradun; he joined service in the year 1999 as a District Social Welfare Officer; he was promoted as the Deputy Director Social Welfare in the year 2013; the present dispute emanated from a complaint made by one Rajkumar S/o Mohkam Singh, addressed to various constitutional and other authorities in respect of usurping of the scholarship, to be granted to the students of the Scheduled Castes and the Scheduled Tribes, by various private institutes imparting Higher Education in collusion with the Social Welfare 8 Department by showing fake admissions and other irregularities in respect of Higher Educational Institutes and ITI's situated in the District Saharanpur, U.P; in the complaint it was further stated that illegality had been done pertaining to students shown to be admitted from District Saharanpur, Dehradun and Haridwar and as such the said misappropriation of scholarship of these students runs into a massive scam of the tune of Hundreds of Crores; the said complaint was in respect of 23 Private Higher Educational Institutes and 7 ITI's imparting professional education; the said complaint was received by the State of Uttarakhand; the Social Welfare Department had constituted a Committee under the Chairmanship of Mr. Y.K. Rawat, Joint Director, Tribal Welfare Department, comprising of Mr. Santosh Sheel, O.S.D. in the Tribal Welfare Department and Mr. G.R. Nautiyal, Deputy Director, Social Welfare Department; and after examining the record in respect of the complaint, the Committee gave its finding that no illegality or infirmity was found in respect of the scholarship granted to the students, who were resident of District Haridwar and District Dehradun, but studying in Higher Educational Institutes at District Saharanpur. The petitioner further stated that, dissatisfied with the finding of the Committee, the State Government constituted another two member committee, which submitted its report to the State Government; the Chief Minister of the State of Uttarakhand had directed an enquiry in the matter by SIT; the Principal Secretary Home, State of Uttarakhand issued Government Order dated 17.04.2018 directing that an enquiry/investigation be conducted by a SIT in respect of misappropriation of Crores of Rupees by Private Educational Institutes situated in District Haridwar and Dehradun; the constituted SIT is illegal since it is against the Government Order dated 17.04.2018; in spite of submitting an enquiry 9 report to the State Government, the 4th respondent lodged a FIR through the 3rd respondent; the petitioner received a notice dated 15.05.2019 signed by the 5th respondent, designating himself as the Investigating Officer of the SIT; the petitioner was posted in the District Haridwar in the year 2011-12 (21.05.2011 till 31.07.2012); the 5th respondent is not a member of the SIT; in Writ Petition (PIL) No.228 of 2018, the 4th respondent filed an affidavit before this Court, in which it was stated that the 4th respondent had not got the record in the matter; if the record was not available with the 4th respondent, it was not known how he could have conducted the enquiry, and without submitting the enquiry report, how could have got a First Information Report lodged as FIR No.0496 of 2018; the said FIR was lodged under Sections 420 and 408 IPC; during investigation Section 409 of IPC was added by the Inspector Kamal Kumar Lunthi, who was not a member of the SIT; the 5th respondent is conducting investigation though he has no authority to do so; the Government Order dated 25.07.2006, in its para no.4, categorically states, that the students studying in classes above Standard IX, are entitled for scholarship, and their scholarship amount will be transferred in the account maintained by their respective institute; there was no provision to pay the scholarship amount directly in the account of the students; the Chief Secretary and Additional Chief Secretary, Social Welfare Department had categorically stated in their affidavits, filed in WP (PIL) No.228 of 2018, that the scholarship amount of the student above IXth class shall be transferred to the account of the concerned school; there was no provision or direction for officials of the Social Welfare Department to have inquired or ask for affiliation of Institutions from the respective Institute; the petitioner had, however, taken the Recognition Letters/Orders in respect of 10 the course being run by these Institutes, and after verifying each and every recognition pertaining to the course, only then the scholarship amount was disbursed; there is no provision for collecting the Government Approved Fee Structure; the existing directions, at that particular point of time, were the Government Order dated 25.07.2006; the fee structure of all the 18 Institutes were collected by the petitioner; Mr. Kanti Ram Joshi and Mr. Nand Kishore Sharma, officials of the Social Welfare Department, with Mr. Chandra Shekhar Kargeti, Advocate, were trying to influence the investigation; there could not be any role of the District Social Welfare Officials in the commission of the crime; and the petitioner cannot be deprived of the benefit of the law laid down by Hon'ble Apex Court in the case of Arnesh Kumar vs. State of Bihar and others, 2014 (8) SCC 243.
8. The respondents State filed its counter affidavit, wherein it is stated that the investigation in the present matter is still going on; the investigation revealed the role of the petitioner; the petitioner had grossly violated various Government Orders, and caused benefit to various colleges; the petitioner had endorsed, and had issued scholarship amount directly to the colleges without verifying the admission of the students; the petitioner had used his authority, and had put pressure on his subordinates to carry out verification in a wrong way, and had also disbursed scholarship to the colleges without even checking their recognition status; and the petitioner had grossly abused and misused his position and power, and had caused huge and undue benefits to various private colleges to the tune of crore of rupees.
9. In this scholarship scam, the petitioner moved representations dated 24.05.2019, 27.05.2019 and 01.06.2019 and filed Writ Petition (Criminal) No.969 of 2019 11 under Article 226 of the Constitution of India, which was connected with the Writ Petition (Criminal) No.774 of 2019 by the order of this Court dated 20.09.2019. This writ petition was filed by the petitioner seeking a writ of mandamus commanding respondent No.14 not to conduct investigation of FIR No.0496 of 2018, as respondent No.14 had no authority of law to investigate the matter; a writ of mandamus directing the respondent Nos. 1 to 4 to decide the representations dated 24.05.2019. 27.05.2019 and 01.06.2019 of the petitioner; and a writ of mandamus directing respondent Nos.6 and 14 not to take any coercive measures against the petitioner till his abovementioned representations were decided by respondent Nos.1 to 4.
10. The conduct of the petitioner is also relevant. At the time of arguments, the learned counsel for the State submitted that the petitioner had concealed the fact in Writ Petition (Criminal) No. 969 of 2019 that he had already filed Writ Petition (Criminal) No.774 of 2019; and the petitioner had earlier suppressed facts before the National Commission for Scheduled Tribes that he had already filed Writ Petition (Criminal) No. 774 of 2019 before this Court. In the light of these submissions, the learned Senior Advocate appearing for the petitioner submitted that the petitioner does not want to press for the adjudication of Writ Petition (Criminal) No.969 of 2019.
11. The first step of the Investigating Officer, conducting an investigation under Chapter XII of the Code of Criminal Procedure, 1973 (for short 'the Code'), is to enter his proceedings in the investigation day by day in the case diary, and to note the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and the statement of the circumstances ascertained through his investigation. The 12 Investigating Officer is bound to include the statements of the witnesses in the case diary recorded during the course of examination under Section 161 of the Code. Therefore, the case diary must contain the particulars required by Section 172 of the Code in sufficient detail to enable the Courts/Supervising Officer to appreciate the facts.
12. In its order in Criminal Appeal No. 1340 of 2019 dated 05.09.2019, i.e. P. Chidambaram vs. Directorate of Enforcement, the Hon'ble Apex Court, after referring to its earlier decisions in Balakram vs. State of Uttarakhand and others, (2017) 7 SCC 668, Sidharth and others vs. State of Bihar, (2005) 12 SCC 545, Naresh Kumar Yadav vs. Ravindra Kumar and others, (2008) 1 SCC 632, Malkiat Singh and others vs. State of Punjab, (1991) 4 SCC 341 and Mukund Lal vs. Union of India and another, 1989 Supplementary (1) SCC 622, has observed that it is well settled that the Court can peruse the case diary/materials collected during investigation by the prosecution even before the commencement of the trial inter-alia in circumstances like:-
(i) to satisfy its conscience as to whether the investigation is proceeding in the right direction, (ii) to satisfy itself that the investigation has been conducted in the right lines and that there is no misuse or abuse of process in the investigation, (iii) whether regular or anticipatory bail is to be granted to the accused or not, (iv) whether any further custody of the accused is required for the prosecution, and (v) to satisfy itself as to the correctness of the decision of the High Court/trial court which is under challenge. However, these instances are only illustrative and not exhaustive and where the interest of justice required, the Court has the powers, to receive the case diary/materials collected during investigation.13
13. We heard Mr. A.S. Rawat, Senior Advocate, assisted by Mr. Gopal K. Verma, Advocate for the petitioner and Mr. Pratiroop Pandey, A.G.A., for the State, we went through the case diary and other materials available on record.
14. The learned Senior Advocate, appearing for the petitioner, contended that the FIR was lodged against unknown persons, whereas, the on going investigation against the petitioner is mala fide with the intention to harass him.
15. Rebutting the allegations of malafides, the learned counsel appearing for the State submitted that, on the basis of the on going investigation, a clear case of cheating, criminal breach of trust, criminal conspiracy and criminal misconduct, worth hundreds of crores of rupees, and loss to the State exchequer, was also made out against the petitioner; and, hence, no cogent ground exists for quashing the FIR. The learned counsel for the State further submitted that serious irregularities and illegalities committed by the petitioner are found so far in the on going investigation; and, therefore, no case for quashing the FIR and stay of arrest are made out.
16. The learned Senior Advocate, appearing for the petitioner, submitted that the petitioner does not also wish to press for an adjudication of relief No.1 in W.P. (Criminal) No.774 of 2019 to quash FIR No.0496 of 2018; the petitioner would fully and whole heartedly co-operate with the investigation; and his prayer in this writ petition is confined to the relief that he not be arrested or be subjected to custodial interrogation. Learned Senior Advocate submits that, if no cognizable offence is disclosed, the police would have no authority to undertake an investigation; the FIR must disclose, prima facie, that a cognizable offence has been committed; the gravity of the evil to the community, resulting from anti-social activities, can 14 never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure establish by the Constitution and the laws, since the liberty and property of any individual is sacred; where the investigation is ex-facie, unfair, tainted, malafide and smacks of foul play, the courts would set aside such an investigation and direct fresh or de novo investigation and, if necessary, even by another independent investigating agency. In support of these submissions, the learned Senior Advocate relied upon the judgment in State of West Bengal and others Vs. Swapan Kumar Guha and others, AIR 1982 SC, 949 and Vinay Tyagi Vs. Irshad Ali alias Deepak and others (2013)5 SCC, 762. The learned Senior Advocate submitted that the inherent power must be exercised by the High Court where proceedings have been initiated illegally, vexatiously or without jurisdiction. In support of his submission, the learned Senior Advocate relied upon the judgment in Asian Resurfacing of Road Agency Private Limited and another Vs. Central Bureau of Investigation, (2018)16 SCC, 299. Learned Senior Advocate further submitted that no one, including the newspaper, shall interfere with the investigating agency and, in support of this submission, he relied upon the judgment in Rajeshwar Singh Vs. Subrata Roy Sahara and others, (2011)14 SCC, 365.
17. In State of West Bengal Vs. Swapan Kumar Guha (Supra), the Hon'ble Apex Court has held that whether the complaint/FIR discloses the commission of a cognizable offence or not must necessarily depend on the facts and circumstances of each particular case.
18. In Pepsi Food Limited Vs. Special Judicial Magistrate and others, 1998(36) ACC 20, the Hon'ble Apex Court has observed that the power conferred on the High 15 Court under Article 226 and 227 of the Constitution of India, and under Section 482 of the Code have no limits, but more the power more due care and caution is to be exercised in invoking these powers.
19. In Adri Dharan Das Vs. State of West Bengal, AIR 2005 SC 1057, the Hon'ble Apex Court has held that the powers and functions of the police and the Courts is clearly demarcated, and the Court will not ordinarily intervene with the investigation of a crime or with the arrest of the accused in a cognizable case, which is the province of the police.
20. In P. Chidambaram (Supra) the Hon'ble Apex Court observed that there is a well-defined and demarcated function in the field of investigation, and its subsequent adjudication; it is not the function of the Court to monitor the investigation process; so long as the investigation does not violate any provision of law, it must be left to the discretion of the investigating agency to decide the course of investigation; if the Court were to interfere at each and every stage of the investigation, and the interrogation of the accused, it would affect the normal course of investigation; and it must be left to the investigating agency to proceed in its own manner in interrogation of the accused, the nature of questions put to him and the manner of interrogation of the accused.
21. The Hon'ble Apex Court further observed that if the power of investigation has been exercised by an investigating officer malafide, or in non-compliance of the provisions of the Criminal Procedure Code in the conduct of the investigation, it is open to the Court to quash the proceedings where there is a clear case of abuse of power; the Court can always issue appropriate direction, at the instance of an aggrieved person, if the High Court is convinced that the power of investigation 16 has been exercised by the investigating officer mala fide and not in accordance with the provisions of the Criminal Procedure Code; however, the power is to be exercised in rare cases where there is a clear abuse of power, and non- compliance of the provisions falling under Chapter XII of the Code of Criminal Procedure requiring interference of the High Court; in the initial stages of investigation where the Court is considering the question of grant of regular bail or pre-arrest bail, it is not for the Court to enter into the demarcated function of the investigation and collection of evidence/ materials for establishing the offence and interrogation of the accused and the witnesses.
22. The learned Senior Advocate, appearing for the petitioner, has submitted that the judgment passed in P. Chidambaram (Supra) is per-in-curium in the light of the judgment passed by the Constitution Bench of the Hon'ble Supreme Court in Shri Gurbaksh Singh Sibbia and other Vs. State of Punjab, (1980)2 SCC 565. We do not agree with this submission of the learned Senior Advocate. In P. Chidambaram (Supra), after noticing several of its earlier judgments, the Hon'ble Apex Court passed the judgment. We are, hence, bound by the law laid down by the Hon'ble Apex Court in P. Chidambaram (Supra).
23. The learned Senior Advocate, appearing for the petitioner, submitted that the 14th respondent in Writ Petition (Criminal) No. 969 of 2019, has no authority to investigate the matter of FIR No.0496 of 2018 since the 14th respondent is not a part of the SIT.
24. Rebutting the above contention of the learned Senior Advocate, the learned counsel for the State submitted that, during investigation, Section 409 of IPC and Section 17 13(1) and 13(2) of the Prevention of Corruption Act were added; the SIT was constituted by the State Government, headed by the 4th respondent (in WP(Crl.) 774 of 2019) to inquire into the matter; and, thereafter, permission was granted by Government Order dated 19.06.2019 (Social Welfare Department) to the 14th respondent to conduct investigation of FIR No.0946 of 2018.
25. The learned Senior Advocate, appearing for the petitioner, has contended that the real intention of implicating the petitioner in this matter was the genesis of one department rival, namely N.K. Sharma, who had been instrumental in browbeating the petitioner by using various tactics including filing Writ Petition (S/B) No.349 of 2014 i.e. N.K. Sharma Vs. State of Uttarakhand and others, in which one Shri Chandra Shekhar Kargeti, Advocate was the front man in such a nefarious design; in order to blackmail the officers of the Social Welfare Department and the Bahuddeshiya Vitt Evam Vikas Nigam, the said advocate had filed another PIL against the officers of the Nigam making wild allegations against them in the discharge of their duties; the petitioner has also been subjected to such wild allegations; the said PIL is pending; and Mr. Chandra Shekhar Kargeti had published slanderous material against the petitioner.
26. Mr. N.K. Sharma and Mr. Chandra Shekhar Kargeti are not party-respondents in either of these two writ petitions. In the absence of their being arrayed as respondents in the writ petitions, this Court could not be justified in examining the allegations of malice behind their back, or record any finding of malafides without giving them an opportunities of being heard. (State of Bihar vs. P.P. Sharma, 1991 AIR SC 1260). Further, there is no cogent and positive evidence on record to show that the petitioner has been falsely implicated 18 in the ongoing investigation with an intention to harass him due to the alleged rivalry with Mr. N.K. Sharma and Mr. Chandra Shekhar Kargeti.
27. The learned Senior Advocate, appearing for the petitioner, has submitted that the case against the petitioner is based on a misinterpretation of the Government Order dated 25.06.2006 by the SIT, that the petitioner had violated the said Government Order, whereas the Chief Secretary in his counter affidavit, and the Additional Secretary in his supplementary affidavit, filed in WP(PIL) No.228 of 2018 have interpreted the said Government Order otherwise. According to the learned Senior Advocate, the stand of the Social Welfare Department was that, as per the said Government Order, the District Social Welfare Officers were requested to deposit the Post Metric Scholarship in the accounts of the Institutions/Colleges and thereafter the Principal of the Institutes/Colleges were required to transfer the scholarships in the accounts of the eligible students through bank by account payee cheques and bank advise. The learned Senior Advocate contended that the petitioner was posted for a little more than a year i.e. 2011-2012 in District Haridwar, where such a process of transferring the scholarship amount, in the account of the institution, was adopted in all the 13 districts of the State.
28. Rebutting the same arguments, the learned counsel for the State has submitted that the contentions of the petitioner regarding the interpretation of Government Order dated 25.06.2006 by the Chief Secretary and Additional Secretary are absolute incorrect; and such submissions have been put forth by the petitioner just to mislead the Court.
1929. The learned counsel for the State further submitted that, in the ongoing investigation, it is found that the petitioner disbursed the scholarship during his tenure in Haridwar to Motherhood Institute of Technology, Bhagwanpur, Roorkee, District Haridwar, Techworld WGVS, Canal Road, Manglour, District Haridwar, Amrit Law College, Amrit College of Education, District Haridwar, and fake Scheduled Caste and Scheduled Tribe students admissions were endorsed by the petitioner. In the ongoing investigation it was found that most of these students, who were shown as admissions, were never enrolled. Analysis of the results show that many of these students never sat for examinations. When these students were traced to their addresses, and their statements were recorded, it was revealed that they never took admissions in these colleges, neither had they studied there nor had they taken the examination. They also had no knowledge regarding any scholarships being paid or issued in their names. It is also revealed that the petitioner had disbursed scholarship in Techworld WGVS, Canal Road, Manglour, District Haridwar without even checking its recognition status. This college did not even have recognition from the University. The petitioner disbursed scholarship to PGDM courses in Techworld WGVS, Canal Road, Manglour, District Haridwar. This course was neither recognized nor was it approved for being extended scholarship to the students, by the Government in 2012-13 and 2013-14. It was also found that many of these students admission shown in this course were fake admissions. The petitioner had violated various Government Orders. The scholarship disbursed by the petitioner are highly suspicious and these scholarships were disbursed by him to benefit the institutes/owners by using his power and his position as the District Social Welfare Officer.
2030. The Learned counsel for the State further submitted that, in the ongoing investigation, 128 more private colleges in District Haridwar were identified where, prima facie, gross irregularities in scholarship disbursal was found; in the ongoing investigation, it is revealed so far that the petitioner used his authority and put pressure on his subordinates to carry out verification in a wrong way; and he had disbursed scholarship to the colleges without even checking their recognition status. In this way, the petitioner had abused and misused his position and power, and had caused huge and undue benefit to various private colleges to the tune of hundreds of crores of rupees; a perusal of the case diary would reveal that the investigating officer had issued notices to the petitioner to be present for investigation and for detailed interrogations on 20.09.2019 and 22.09.2019, but the petitioner did not co-operate; thereafter the petitioner is not available at any of his known addresses; also his mobile number is switched off; and he is not reachable in any form.
31. The learned Senior Advocate, appearing for the petitioner, submitted that the FIR and the allegations of the State Counsel are factual incorrect.
32. It is wholly impermissible for this Court to enter into the factual arena to adjudge the correctness of the allegations in the FIR and the facts gathered during the course of investigation. The Court would not also examine the genuineness of the allegations made in the FIR during the course of investigation, since the Court does not function as a Court of Appeal or Revision; and the Court cannot act like an Investigating Agency while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India.
2133. In this matter, the FIR discloses the commission of a cognizable offence and it cannot be said that there are no allegations and evidence against the petitioner which, prima facie, constitute the ingredients of the offences of cheating, criminal breach of trust, criminal conspiracy and criminal misconduct. Several hundreds of Crores, to be paid as scholarship for students from the Scheduled Castes and the Scheduled Tribes, is suspected to have been siphoned off by private colleges in collusion with middlemen and with the active support of certain government officials. The petitioner is suspected to be one such. In such a scam of monumental proportions, a detailed and painstaking investigation is necessary to identify all the culprits. While the investigation so far has identified several of such institutions, we are told that this is just the tip of the iceberg. In matters such as these, it is for the Investigating officer to determine whether custodial interrogation of a suspect is necessary. For the entire truth to be unravelled by the Investigation Agency, judicial restraint is in order.
34. It is true, that arrest should not be mechanical. The exercise of power of arrest requires reasonable belief about a person's complicity, and also about the need to effect arrest. Arrest may be justified if there is credible information or reasonable suspicion, and arrest is necessary to prevent further offence or for proper investigation or to check interference with the evidence. In P. Chidambaram (Supra), the Hon'ble Apex Court has held that, ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but for several other purposes also. The privilege of pre-arrest bail should be granted only in exceptional cases. There may be circumstances in which the accused may provide information leading to discovery of 22 material facts and relevant information. The Hon'ble Apex Court has observed that the economic offences stand as a different class as they affect the economic fabric of society.
35. The learned Senior Counsel appearing for the petitioner, has submitted that, since the remedy of anticipatory bail is not available in the State of Uttarakhand, therefore, this Court, to meet the ends of justice, should grant the ancillary relief of stay of arrest to the petitioner; the nature of relief of stay of arrest and the relief of anticipatory bail are the same; and, therefore, the petitioner is entitled to this ancillary relief. The learned Senior Advocate appearing for the petitioner, relied upon the judgment of the Hon'ble Apex Court in Bhadresh Bipin Bhai Sheth Vs. State of Gujarat and another (2016)1 SCC 152.
36. Grant of anticipatory bail, and the relief of stay of arrest, are not the same. Section 438 of the Code directs that if the person, in whose favour an order of anticipatory bail is issued, and thereafter he is arrested on the accusation in respect of which the direction is issued, he shall be released on bail. On the other hand, grant of stay of arrest is a part of the extraordinary power of the Court, and it provides immunity from arrest. It is necessary for the accused to fill up bonds in the light of the order of anticipatory bail, which is a better guarantee to ensure his presence in the investigation or during trial, compared to an unconditional order staying arrest under Article 226 of the Constitution of India. In Directorate of Enforcement Vs. Ashok Kumar Jain (1998)2 SCC 105, the Hon'ble Apex Court has held that, in economic offences, the accused is, ordinarily, not entitled to anticipatory bail.
2337. Therefore, it is not permissible to introduce the concept of anticipatory bail by taking recourse to Article 226 of the Constitution of India for staying arrest, or for quashing the FIR (which prayer the petitioner has given up), more so as the case on hand is not covered under any of the categories referred to in paragraph 102 of the judgment of the Hon'ble Apex Court in State of Haryana and others Vs. Bhajan Lal and others (1992) Supplementary (1) SCC 335.
38. In State of Haryana and others Vs. Bhajan Lal (Supra), the Hon'ble Apex Court examined the extraordinary power under Article 226 of the Constitution of India and also the inherent powers under Section 482 of the Code. Para 102 of the judgment of Hon'ble Apex Court reads as follows:-
"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482 of the code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.24
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
39. In the facts and circumstances of this particular case the petitioner is not entitled to the benefit of the judgment in Bhadresh Bipin Bhai Sheth (Supra). The present case does not fall under any of the categories set out by the Hon'ble Apex Court in State of Haryana and other Vs. Bhajan Lal and others. As noted hereinabove, the petitioner has given up the main relief of quashing the FIR. The relief of stay of arrest is an ancillary relief. In the light of the law declared by the Supreme Court in the State of Orissa Vs. Madan Gopal Rungta, 1952, AIR 12, an ancillary relief can be granted only in aid of and pursuant to the grant of the main relief. Article 226 of the Constitution of India cannot be used for the purpose of granting the ancillary relief as the only and final relief sought in the writ petition.
40. 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, 25 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.
41. 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.
42. In Asian Resurfacing (Supra), the 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.
43. In the course of argument, the learned counsel appearing for the State opposed the claim of the petitioner for stay of arrest and contended that the petitioner had not co- operated with the investigating agency so far. The case diary of this matter discloses that the Investigating Officer required attendance of the petitioner for eliciting information, but the petitioner did not come. Therefore, a non-bailable warrant was issued by the concerned Additional District & Sessions Judge. In the light of these submissions, the learned counsel for the State submitted that, for proper investigation into these serious allegations of corruption, that too in disbursal of 26 scholarships to the socially backward classes, custodial interrogation is necessary.
44. Miranda Rule originated from "Miranda Vs. Arizona, 384 U.S. 436(1966)". In that case, custodial interrogation has been said to mean "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."
45. While serious allegations of corruption are no doubt made against the petitioner, the observations made by us in this order may not be understood as our having expressed any opinion on the involvement of the petitioner in this scam allegedly running into several hundred crores of rupees, for the investigation is still in progress, and our jurisdiction has been invoked by the petitioner seeking stay of arrest. In view of the aforesaid analysis, the relief of stay of arrest cannot be legally granted. Therefore, the Writ Petition (Criminal) No.774 of 2019 is dismissed as without merit, and Writ Petition (Criminal) No.969 of 2019 is dismissed as not pressed. No order as to costs.
(Alok Kumar Verma, J.) (Ramesh Ranganathan, C.J.) 17.10.2019 JKJ