Uttarakhand High Court
ABA/71/2022 on 24 February, 2023
Author: Alok Kumar Verma
Bench: Alok Kumar Verma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
24TH FEBRUARY, 2023
ANTICIPATORY BAIL APPLICATION NO. 71 of 2022
Between:
Shishir Singh. .....Applicant
and
State of Uttarakhand and Another. .....Respondent
Counsel for the Applicant : Mr. Sagar Kothari,
Advocate.
Counsel for the State : Mr. Pratiroop Pandey,
A.G.A with Mrs. Shivangi
Gangwar, Brief Holder.
Hon'ble Alok Kumar Verma,J.
Apprehending his arrest, the present applicant- accused had moved an Application (Anticipatory Bail Application No.51 of 2022) before the District and Sessions Judge, Haridwar in connection with the First Information Report No. 405 of 2019, registered with Police Station SIDCUL, District Haridwar for the offence under Sections 409, 420, 467, 468 and Section 471 of the Indian Panel Code, 1860. The said application has been rejected on 13.01.2022.
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2. The present Application has been filed by the applicant under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of his arrest.
3. Facts, to the limited extent necessary, are that in the scholarship scam matter, in compliance of the letter dated 17.04.2018 of the Principal Secretary, Home of the State of Uttarakhand, a Special Investigation Team (SIT) was constituted. After inquiry, Sub-Inspector Rajendra Singh Kholia, a member of the said SIT, lodged the First Information Report against the owner of U.P. College, Polytechnic for Research, Kamalpur, District Saharanpur. During the investigation, it was found that a sum of Rs.30,27,600/- (Rupees thirty lakh twenty seven thousand six hundred), scholarship amount for 92 students, was embezzled by the present applicant. After completion of the investigation, charge-sheet has been filed against the present applicant-accused.
4. Heard Mr. Sagar Kothari, learned counsel for the applicant-accused and Mr. Pratiroop Pandey, learned A.G.A. with Mrs. Shivangi Gangwar, learned Brief Holder for the State.
5. Mr. Sagar Kothari, learned counsel for the applicant, submitted that the applicant-accused has falsely 3 been enroped in the alleged crime. He is the Secretary of U.P. College, Polytechnic for Research. He further submitted that some of the concerned students had left the college after taking admission because they had failed in the examination. That's why the scholarship amount could not be paid to them; other concerned students were paid scholarship amount. However, he fairly accepted that no proof of giving scholarship to the students or returning the scholarship amount to the concerned department has been produced by the applicant.
6. On the other hand, learned counsel appearing for the State submitted that the applicant-accused was the Secretary of the said College. During the investigation, the concerned students have stated that they have not received any scholarship. The present applicant-accused had embezzled a sum of Rs.30,27,600/- scholarship amount, which was received from the Social Welfare Department. He further submitted that an Application under Section 482 of the Code of Criminal Procedure, 1973 was filed by the applicant, which has already been dismissed by the Coordinate Bench.
7. The scheme of Section 438 of the Code of Criminal Procedure is introduced by the State of 4 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.
5Explanation: 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. In Jai Prakash Singh vs. State of Bihar, (2012) 4 SCC 379, the Hon'ble Supreme Court has held, "para 19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief 6 the court must record the reasons therefore.
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 crime and would not misuse his liberty. (See D. K. Ganesh Babu vs. P.T. Manokaran and Others, (2007) 4 SCC 434, State of Maharashtra and Another vs. Mohd. Sajid Husain Mohd. S. Husain and Others, (2008) 1 SCC 213, and Union of India vs. Padam Narain Aggarwal and Others, (2008) 13 SCC 305)."
9. 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.
10. 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.
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11. 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.
12. 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.
13. The Anticipatory Bail Application (No. 71 of 2022) is hereby rejected.
14. 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 this case.
___________________ ALOK KUMAR VERMA, J.
Dt: 24th February, 2023 Neha 8