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2021 DIGILAW 325 (UTT)

Shivmurti v. State of Uttarakhand

2021-06-22

ALOK KUMAR VERMA

body2021
JUDGMENT : Alok Kumar Verma, J. 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.0035 of 2020, registered with Police Station I.T.I., District Udham Singh Nagar for the offence under Sections 409, 420, 466, 467, 468, 471, 120-B of IPC and Section 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988. The learned Special Judge vide order dated 19.04.2021 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 Himalayan College of Education, Sunder Nagar Mandi, Himachal Pradesh were colluded by a middleman Uday Raj and by preparing fake documents, the admission of the students was shown in the said college in the academic year 2011-12 and thus all of them together embezzled Rs.4,08,850/- of the scholarship. The FIR was registered on 25.01.2020 against Uday Raj, a middleman, owner, manager, officers and employees of the said Institute. 8. Mr. The FIR was registered on 25.01.2020 against Uday Raj, a middleman, owner, manager, officers and employees of the said Institute. 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; as per the averments of the FIR, there was no allegations against the applicant; 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 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. 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 any 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. (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 according to the peculiar facts and circumstances of the case. 11. 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 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 07.07.2021 for arguments on the application of anticipatory bail. Meanwhile, counter affidavit may be filed.