Uttarakhand High Court
SABA/5/2022 on 6 June, 2022
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
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
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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.
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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
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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.,
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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
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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
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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;
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(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.
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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
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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.
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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
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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/