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2015 DIGILAW 420 (JK)

Sudershan Kumar Gupta v. State of J&K

2015-08-19

TASHI RABSTAN

body2015
ORDER 1. Through the medium of this Bail Application under Section 498 Cr.P.C., applicant-accused is seeking bail in case FIR No. 36/2013 registered against him in Police Station, Crime Branch, Jammu, for the commission of offences punishable under Sections 420, 471 and 120-B RPC read with Section 5(2) of J&K Prevention of Corruption Act, Samvat 2006. 2. It is contended by the petitioner that he is an educated person, having 62 years of age and he remained academician through out his career. He further claims that due to qualification and teaching experience in the field of education, he, after his retirement, started B.Ed. College at Lakhanpur in District Kathua under the name and style of M/s. Vivekananda College of Education, Lakhanpur, Kathua. Petitioner further claims that apart from B.Ed College, he also started ETT Institute at Kathua after getting the same duly affiliated with the Jammu and Kashmir Board of School Education, Jammu and obtaining necessary permission from the State Government. It is further contended that Joint Secretary, Legal, Kashmir Division, Jammu and Kashmir Board School Education has submitted the inquiry report to IGP, Crime Branch, Jammu alleging therein that various ETT Institutes operating in the State of Jammu and Kashmir are indulging in different mal-practices and the promoters of these Institutes have been committing violations and manipulations with regard to undertaking ETT courses in their Institutes. The petitioner further submitted that based on the inquiry report, FIR aforesaid came to be registered with the Crime Branch and investigation into the matter came to be conducted as against various ETT Institutes including the one established by the petitioner. It is submitted that the main allegation as alleged against the petitioner is that there had been certain irregularities with regard to admission made to the Institute of petitioner. 3. Learned counsel appearing for petitioner contends that even if the investigation conducted by the Crime Branch is taken to be correct on its face value that would only entail action against ETT Institute established by the petitioner which may include de-recognition/de-affiliation. However, the irregularities and violation of the provisions of law governing establishment of ETT Institute, as alleged, did not amount to criminal offence for which either the petitioner is required to be prosecuted or subjected to custodial interrogation. Learned counsel further submitted that on the basis of alleged irregularities the petitioner has been arrested in the aforesaid FIR. 4. However, the irregularities and violation of the provisions of law governing establishment of ETT Institute, as alleged, did not amount to criminal offence for which either the petitioner is required to be prosecuted or subjected to custodial interrogation. Learned counsel further submitted that on the basis of alleged irregularities the petitioner has been arrested in the aforesaid FIR. 4. Per contra, Mr. Khajuria, learned AAG while elaborating the irregularities and violations contended that neither registration of candidates was being done nor classes were being started in time or hostel facilities were provided to the candidates. It is alleged that the amount ranging between Rs. 45,000/- to Rs. 80,000 was being taken from each student each year for the two year course through touts for providing them the degrees/certificates by the erring institutes which even do not fulfil the basic norms and standards laid down by the National Council for teachers Education (NCTE). It is contended that the investigation is at its initial stage and the same is being monitored by the High Court. Further, it is contended that as the allegations against the petitioner are serious in nature, he, therefore, does not deserve the concession of bail at this stage. 5. I have heard learned counsel appearing for the parties and perused the record. 6. Earlier the petitioner moved an application for grant of bail before the learned Special Judge, Anti Corruption, Jammu, who vide its order dated 16.07.2015 rejected the same. 7. Instant application has been filed on the ground that the trial Court has failed to appreciate that the petitioner has not committed any offence as alleged against him and has been wrongly implicated. It is contended in the bail application that if there was any irregularity or violation in establishing the ETT Institute by the petitioner, it may result in de-recognition/de-affiliation of the institute of petitioner by the competent authority, but, the same cannot tantamount to criminal offence. It is contended that the petitioner was arrested on 10.07.2015 and since then he is in police custody. He claims that he is co-operating with the investigation and would continue to do so; even there is no allegation from the prosecution side. It is contended that the continuous detention of petitioner is visiting him with penal consequences, inasmuch as without committing any offence he is being treated as a hardcore criminal. He claims that he is co-operating with the investigation and would continue to do so; even there is no allegation from the prosecution side. It is contended that the continuous detention of petitioner is visiting him with penal consequences, inasmuch as without committing any offence he is being treated as a hardcore criminal. In short, it is contended that the instant case does not call for custodial interrogation nor his detention is required by the respondent. It is also contended that the trial Court did not take note of various landmark judgments delivered by the Apex Court on the subject while rejecting the bail of petitioner. 8. The principles which generally govern the grant of bail are relatable to following things:- i. seriousness of the allegations, severity of punishment, the character of evidence on which the charge is proposed to be sustained, possibility of tampering and intimidating the witnesses and chances of running away from the trial. ii. false implication of the accused, allegations levelled not believable and wrecking vengeance for political or business reasons. 9. The above principles are required to be kept in mind while exercising powers under Section 498 Cr.P.C. It is also to be noted that at the stage of considering the application for grant of bail, the Court has only to go into the limited question as to whether a prima-facie case is established against the accused. It cannot go into the evidentiary value, creditability and reliability of the witnesses. However, while examining the bail plea of the accused, the circumstances under which crime is alleged to have been committed, the character and behaviour of the accused person is also to be examined. 10. While going through the file it reveals that the pleas, which have been taken by the petitioner in this application, had also been taken before the trial Court and the trial Court after considering all these aspects and perusing the relevant record rejected the bail of petitioner. 11. Although FIR in the case came to be registered in the year 2013, but there was slackness on the part of Investigating Agency to investigate the matter with promptitude. It was only after this Court in PIL No. 201/2011 intervened in the matter and decided to monitor the investigation, the investigation was activated and the petitioner amongst other was apprehended. Although FIR in the case came to be registered in the year 2013, but there was slackness on the part of Investigating Agency to investigate the matter with promptitude. It was only after this Court in PIL No. 201/2011 intervened in the matter and decided to monitor the investigation, the investigation was activated and the petitioner amongst other was apprehended. Therefore, taking note of the fact that investigation is yet to be taken to its logical conclusion and keeping in view the nature and seriousness of the allegations, as alleged by the investigating agency, and the fact that there is no change of circumstances either pleaded or discernable from the record after rejection of bail application by the trial Court, I do not find any reason to allow the application at this stage. 12. The plea of the petitioner that he is in custody since 10.07.2015 is no ground to grant bail in view of the above discussed facts. The allegations levelled against the petitioner are required to be thoroughly investigated. Investigating Agency, as claimed by it, is still investigating the involvement of other conspirators to unearth the scam in the field of education in which various other Institutes and even officers/officials of the Board and Government could be possibly involved. Moreso, when investigation is being monitored by this Court in PIL No. 201/2011, which has put the Investigating Agency on wheels so as to conclude the investigation without any wastage of time, the grant of bail at this stage may dilute the purpose of PIL. 13. However, it needs to mention here that the objections filed by the respondent-State in this application are general in nature, because the same very objections have been filed in other bail applications also. Although the respondent-State has specifically claimed that the petitioner was involved in all sorts of malpractices and that he was a part of huge scandal where money in hundreds of crore exchanged hands as bribe, yet nothing specific is spelt out from the record as regards the petitioner except he enrolled 651 students for the session 2003-05, when he is already in custody of the Investigating Agency since 10.07.2015. The Interrogation Reports of petitioner and one Bashir Ahmad Dar submitted by the Investigating Agency only reveal that it was Bashir Ahmad Dar, Director Academics, who on his own and in connivance with other officers of the Board of School Education issued the permission for setting up ETT Institutes in Jammu and Kathua Districts without framing any rules and regulations/norms. As per the report, Mr. Dar further admitted that neither inspection of these ETT Institutes was ever conducted nor counselling was conducted by the BOSE, even enrolment of such huge number of students was a fraud. However, since the investigation in this case is being monitored by this Court in PIL No. 201/2011 and keeping in view the fact that many officers/officials of BOSE are involved in this huge scam, I do not find any reason to allow the bail application at this stage. 14. With these observations, this application is found without any merit and is, accordingly, dismissed along with connected MP(s). However, the petitioner is at liberty to approach the trial Court for grant of bail at appropriate stage and in such eventuality it is made clear that any observation made hereinabove shall not come in the way of the trial Court in considering the prayer of the petitioner. 15. Registry to send copy of this order to learned trial Court forthwith.