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Himachal Pradesh High Court · body

2016 DIGILAW 1304 (HP)

Ravi Kumar v. State of H. P.

2016-07-07

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. The present application has been instituted under section 438 of the Code of Criminal Procedure seeking pre-arrest bail in case FIR No. 235/15 dated 5.12.2015 for offence under section 420 of the Indian Penal Code registered at Police Station, Dharamshala, District Kangra. 2. Status report and record produced by the respondent-State is perused. 3. According to the averments made in the petition, an institute in the name of “Interactive Fashion Designing” provides for professional degree and diploma in fashion designing. It was affiliated to “Ideal Educare Institute of Management and Technology” having affiliation with “Karnataka State Open University” and “Excelsior Interactive Solutions Private Limited”. The authorization was given in the name of Rakesh Rana. The petitioner was merely working as Manager with the Institute and has nothing to do with the authorization/running of the institute or other institutions. Petitioner filed earlier an application on 9.3.2016 before the learned Sessions Judge, Kangra at Dharamshala under section 438 of the Code of Criminal Procedure. He passed the following order on 9.3.2016: “Office report seen. It be registered. This interim bail application under section 438 Cr.P.C. has been filed by the bail applicant for interim bail in case FIR which is stated to have registered against him in police station, Dharamshala for commission of the offence punishable under section 420 IPC. The FIR number is not known at this stage. The learned P.P. has taken notice of the bail application on behalf of the State and its copy has been supplied to him today in the court. He shall file detailed reply/report concerning the said case FIR if any in this court on 21.3.2016 till then in the event of arrest of the bail applicant/accused he shall be released on bail on his furnishing personal and surety bonds each in the sum of Rs. 20,000/- each to the satisfaction of SHO police station Dharamshala. However, bail applicant/accused shall join investigation and appear before SHO police station, Dharamshala on 10.3.2016 at 11.00 a.m. and thereafter he shall keep on joining further investigation as per directions of the I.O. of the case. Be now pout up for reply/report of the State on 21.3.2016.” 4. Thereafter, the matter was taken on 21.3.2016 and the following order was passed: “Case file has been produced by SI Des Raj of P.S. Dharamshala. Reply filed. Copy given. Be now pout up for reply/report of the State on 21.3.2016.” 4. Thereafter, the matter was taken on 21.3.2016 and the following order was passed: “Case file has been produced by SI Des Raj of P.S. Dharamshala. Reply filed. Copy given. The verification of the affiliation has to be made from Gurgaon and from Karnataka for which at least one month time is required. Adjournment prayed is allowed. Now fresh status report be filed on 21.4.2016. Till then interim bail order is extended.” 5. The matter again came up before the Sessions Judge on 3.5.2016. He passed the following order on 3.5.2016: “Reply/status report has been placed on record by SI Nanak Ram. Copy supplied. The perusal of the report shows that the recovery from the bail applicant/accused is yet to be procured and he had joined the investigation only once when he produced some of the record, but thereafter he ahs never reported for investigation. Since the bail application/ accused is not present himself and he has not been joining further investigation and the recovery from him is yet to be procured, therefore, for non co-operation in the investigation and for not being present today the bail application is dismissed. Be consigned to the record room.” 6. It is evident from the order dated 3.5.2016 that the petitioner has not joined further investigation and the recovery from him was yet to be procured. Thus, the bail application was dismissed. 7. It is evident from the status report that the police has carried out investigation and the Interactive Fashion Designing was neither affiliated with Ideal Educare Institute of Management and Technology having affiliation with Karnataka State Open University nor with Excelsior Interactive Solutions Private Limited. 8. This Court had directed the I.O. to ascertain the bank accounts details wherein the accused and co-accused have deposited the money. It is evident from the status report that the petitioner was maintaining Accounts in PNB bearing No. 3373000101048082, 33730001010262448 and 337300JH00000587. A sum of Rs. 27,31,551/- was deposited in two accounts and Rs. 27,30,057/- were withdrawn from these accounts. Petitioner has also maintained bank accounts in Canara Bank bearing No. 2062201005735 and 2062101010401. A sum of Rs. 24,65,399/- was deposited in these accounts also. Substantial amount was withdrawn from these accounts. Petitioner has also raised loan of Rs. five lakhs. Thus, total sum of Rs. 27,31,551/- was deposited in two accounts and Rs. 27,30,057/- were withdrawn from these accounts. Petitioner has also maintained bank accounts in Canara Bank bearing No. 2062201005735 and 2062101010401. A sum of Rs. 24,65,399/- was deposited in these accounts also. Substantial amount was withdrawn from these accounts. Petitioner has also raised loan of Rs. five lakhs. Thus, total sum of Rs. 51,96,950/- was found deposited in the bank accounts of the petitioner and substantial amount was withdrawn by him. It has also come on record that 69 students have deposited money with the “Interactive Fashion Designing” institute towards admission, tuition fee etc. The receipts are still to be taken into possession by the police. Petitioner is not disclosing whereabouts of the money received from the students and he has not accounted for the money withdrawn from the bank accounts, which was received by him for admission, tuition fee etc. from the students for providing degrees and diploma in fashion designing. It has also come on record that Rakesh Rana is also at the helm of affairs of the “Interactive Fashion Designing institute”, as per the record made available during hearing of the petition. According to the averments made in the petition, he was being shielded by the police at the behest of the politicians. Petitioner has also placed on record copy of affidavit sworn in by Rakesh Rana claiming himself to be Managing Director of M/s Interactive Education, Kachehri Adda, Dharamshala. 9. Prima facie case is also made out against Rakesh Rana son of Malkiat Singh. The Court is of the prima facie view that accused as well as Rakesh Rana have defrauded the students by receiving huge money towards admission, tuition fee etc. for providing degrees and diplomas in fashion and designing. It has come on record, as noticed hereinabove, that the Interactive Fashion Designing institute is neither affiliated with Ideal Educare Institute of Management and Technology having affiliation with Karnataka State Open University nor with Excelsior Interactive Solutions Private Limited. 10. Petitioner was granted pre-arrest bail by the learned Sessions Judge, Kangra at Dharamshala, but he has not associated in the investigation. The police has yet to recover receipts and details of the money, therefore, he is not entitled to be enlarged on bail. The petitioner and co-accused are hand in glove and they cannot be permitted to take advantage by confusing the nomenclature of the institutions. The police has yet to recover receipts and details of the money, therefore, he is not entitled to be enlarged on bail. The petitioner and co-accused are hand in glove and they cannot be permitted to take advantage by confusing the nomenclature of the institutions. They have allured the students to deposit huge amount of admission, tuition fee etc. knowing fully well that the institutions managed by them were not recognized/affiliated. 11. Accordingly, there is no merit in the application and the same is dismissed. It is made clear that the observation made hereinabove above shall have no bearing on the merits of the main case. 12. Before parting with the judgment, it is pertinent to note that the I.O. has failed to discharge his statutory duty by not carrying out investigation in accordance with law. He has failed to collect necessary facts after the registration of FIR on 5.12.2015 till date. The Court can take judicial notice of the fact that if investigation is delayed, material evidence disappears. Thus, the Superintendent of Police, Kangra at Dharamshala is directed to change the I.O. in FIR No. 235/2015 dated 5.12.2015 for offence under section 420 of the Indian Penal Code registered at Police Station, Dharamshala and handover the investigation to the CIA to be carried out by an officer not below the rank of Inspector. The I.O./Inspector shall investigate the FIR registered against petitioner bearing No. 235/2015 and also carry out investigation to ascertain prominent role played by Rakesh Rana son of Malkiat Singh Rana by registering FIR against him also in this episode. The I.O. is directed to attach the bank accounts of the petitioner and Rakesh Rana forthwith. He is further directed to collect the details of the money received by them and where they have invested or deposited the same. 13. The Court can also take judicial notice of the fact of mushrooming private institutions, which are run in shops and are also not affiliated/recognized by the Universities/Boards or the State Government. These institutions allure the gullible students by giving advertisements in the leading Newspapers and collect huge amount of money from them. It is the duty of the State Government to ensure that no fake/bogus intuitions are run throughout the State of Himachal Pradesh and to trace out them and close them down. These institutions allure the gullible students by giving advertisements in the leading Newspapers and collect huge amount of money from them. It is the duty of the State Government to ensure that no fake/bogus intuitions are run throughout the State of Himachal Pradesh and to trace out them and close them down. All the Superintendents of Police throughout the State of Himachal Pradesh are directed to find out fake/bogus institutions run within their respective jurisdiction and register case against them against the relevant provisions of law, seal their premises and also seize their bank accounts in the interest of students of Himachal Pradesh. The Superintendents of Police shall also ensure that the money illegally collected by these institutions be got refunded to the students. The record be returned to the I.O. under proper receipt.