Uttarakhand High Court
ABA/97/2021 on 25 June, 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. 97 of 2021
25th JUNE, 2021
Between:
Shivmurti. ...Applicant
and
State of Uttarakhand. ...Respondent
Counsel for the Applicant : Mr. Navneet Kaushik.
Counsel for the Respondent : Mr. T.C. Agarwal, learned
Deputy Advocate General
for the State.
Hon'ble Alok Kumar Verma,
Apprehending his arrest, the applicant moved an
application for anticipatory bail before the learned Special
Judge (Anti-Corruption)/First Additional District and
Sessions Judge, Nainital in connection with FIR no.0285 of
2019, registered with Police Station Jaspur, District Udham
Singh Nagar for the offence under Sections 409, 420, 467,
468, 471, 120-B of IPC and Section 13 (1)(d) read with
Section 13 (2) of the Prevention of Corruption Act, 1988.
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The learned Special Judge vide order dated 22.05.2021
rejected the application for anticipatory bail.
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. Heard Mr. Navneet Kaushik, the learned counsel
for the applicant and Mr. T. C. Agarwal, the learned
Deputy Advocate General for the State through video
conferencing.
4. Counter affidavit has not been filed.
5. Mr. T. C. Agarwal, the learned Deputy Advocate
General for the State requested further two weeks' time to
file counter affidavit.
6. Mr. Navneet Kaushik, the learned counsel for the
applicant requested to consider to grant interim protection
to the applicant.
7. According to the present case, the owner,
manager, officers and employees of Monad University and
the officers and employees of the Social Welfare
Department had embezzled Rs.4,77,800/- of the
scholarship by showing the admissions of students in the
college by collusion and preparing fake documents. The
FIR was registered on 15.10.2019 against the owner,
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manager, officers, employees of Monad University and
officers and employees of the Social Welfare Department.
8. Mr. Navneet Kaushik, the learned counsel for the
applicant submitted that the applicant was posted as
Personal Assistant/Senior Personal Assistant at Rudrapur,
District Udham Singh Nagar in the Office of the District
Social Welfare Officer, District Udham Singh Nagar from
August, 2004 to 26.06.2019; the concerned students were
paid the scholarship amount by means of account payee
cheque in their names, which were disbursed under the
signature of the then District Social Welfare Officer and in
the said disbursement, there was no role of the applicant;
in respect of the said Institute, which was situated outside
the State of Uttarakhand, there was no policy prior to
15.07.2015 for physical verification of the students and on
15.07.2015, for the first time, a policy was brought
forward by the Government Order for physical verification
of the students studying outside the State of Uttarakhand
and the duty of doing physical verification was that of the
Assistant Social Welfare Officer; then District Social
Welfare Officer disbursed the scholarship amount through
account payee cheque with a direction that if a student
was not found eligible for the scholarship, the college
would be responsible for the same; entire case rests on
the documentary evidence and entire documents are in
possession of the Investigating Agency; the applicant
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undertakes that he will co-operate with the Investigating
Agency.
9. 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;
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(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.
10. 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
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according to the peculiar facts and circumstances of the
case.
11. 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 merit of the case, this court directs that in the
event of arrest, the applicant-accused Shivmurti shall be
released on bail on furnishing a personal bond of
Rs.30,000/- with two reliable sureties, each in the like
amount to the satisfaction of the Investigating
Officer/Arresting Officer with the following conditions:-
(i) The applicant shall make himself available at
the time of interrogation by a police 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 the case so as to
dissuade him from disclosing such facts to the Court
or to any police officer;
(iii) The applicant shall not leave India without
the previous permission of the Court;
12. List on 12.07.2021 for arguments on the
application of anticipatory bail. Meanwhile, counter
affidavit may be filed.
___________________
ALOK KUMAR VERMA, J.
Dt: 25th June, 2021 Neha/JKJ