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Ruchir Gupta v/s State of Uttarakhand


    Anticipatory Bail Application No. 122 of 2021

    Decided On, 27 August 2021

    At, High Court of Uttarakhand

    By, THE HONOURABLE MR. JUSTICE ALOK KUMAR VERMA

    For the Applicant: Navneet Kaushik, Counsel. for the Respondent: T.C. Aggarwal, learned Deputy Advocate General, P.S. Uniyal, Advocate.



Judgment Text

1. 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.

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 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.

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.

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 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 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 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

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been seeing an alarming rise in white collar crimes, which has affected the fiber of the country’s economic structure. In controvertibly, economic offences 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.
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