TMI Blog2020 (9) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... lving all the private educational institutes. To obviate the compulsion under Section 167(2) Cr.PC, final report has been presented on 30.03.2020 under Section 173(2) Cr.PC only regarding K.C. Group of Institutions, Pandoga, District Una by keeping the investigation open under Section 173(8) Cr.PC. - Even in this challan, twelve persons have been named as accused, out of which six belong to Directorate of Higher Education, Himachal Pradesh, including the petitioner. Five accused persons, who were Drawing Disbursing Officers posted in different capacities in the Directorate of Higher Education at the relevant time and responsible for various transactions in issue, have not been arrested. This is despite the fact that all of them are facing the same FIR for the same offences and it has been alleged that all of them had conspired together. Hon'ble Apex Court in [2013 (5) TMI 920 - Supreme Court], titled Nimmajadda Prasad Versus CBI , while observing that white collar crimes were on the rise affecting development of the country as a whole, held that while granting bail, the Court has to keep in mind the nature of accusations, nature of evidence in support thereof, severity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has already been suspended from government service. It is not disputed that he is a local resident and owns immovable properties in the State. The apprehensions expressed by respondent can be taken care of while imposing conditions for enlargement on bail. In the given facts and circumstances of the case, continued custodial interrogation of the petitioner is not necessary Enlargement of petitioner on bail subject to stringent conditions will not pose any threat to society. The present bail petition is allowed and the petitioner is ordered to be released on bail subject to conditions imposed. - Cr.MP(M) No.1040 of 2020 - - - Dated:- 24-9-2020 - Ms. Jyotsna Rewal Dua, J. For the Petitioner: Mr. Satyen Vaidya, Senior Advocate with Mr. Vivek Sharma, Advocate, through Video Conference. For the Respondent: Mr. Anshul Bansal. Jyotsna Rewal Dua, Where, based on alleged, prima facie, strong evidence, serious allegations of siphoning of student scholarship funds, cheating, criminal breach of trust, criminal misconduct, forgery, conspiracy and corruption etc. are levelled against a government official, then should he be granted regular bail on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered on 07.05.2019 at CBI, ACB, Shimla under Sections 409, 419, 465, 466 and 471 of the Indian Penal Code against unknown persons. After entrustment of FIR, CBI carried out investigations. Noticing the complicity of public servants of Directorate of Higher Education, Bank Officials and Officials of the private educational institutions, Section 120-B of IPC and 13(2) read with 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988, were added in the case. CBI conducted searches of 22 private institutions, which had disbursed the scholarships, w.e.f. 13.05.2019 to 16.05.2019 at 22 locations in the States of Himachal Pradesh, Haryana, Punjab and Union Territory of Chandigarh. Following table gives the macro view of post- matric scholarship funds alleged to have been illegally siphoned off through private institutions:- Total Scholarship Claims 2.37 Lakhs 84,897 (Pre-Matric Claims) 1,53,072 (Post Matric Claims) Total Scholarship Amount Total Scholarship Amount ₹ 16,66,45,720 ₹ 2,49,65,04,745 ₹ 16,58,35,220 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scholarship proposals received from the institutes suo moto without any marking of senior officers. Petitioner allegedly had the knowledge that the proposals were false. He had conspired with the owners of private institutions in approving the proposals and disbursing the scholarship funds. ii). Petitioner was responsible for putting up files of scholarship claims after due verification of student records from 'hp-e-pass' as well as from the records of the Directorate of Higher Education, Himachal Pradesh. However, after receiving the claims directly from the private institutions, which though were addressed to the Director Higher Education, he processed the same without any diary or marking and got the payments released to the institutions on the basis of the documents, which to his knowledge were false and forged. iii). It is further alleged that the petitioner got the payments of K.C. Group of Institutions approved despite having knowledge of the fact that most of the mobile numbers mentioned in 'hp-e-pass' were of seven to nine digits and streams of courses, names of institutes, category of students and dates of birth were also changed. The changes were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2020. 4. Submissions:- 4(i). Learned Senior Counsel for the petitioner prayed for release of the petitioner on bail. His precise submissions are:- 4(i)(a). FIR was registered on 16.11.2018. It was entrusted to CBI on 20.03.2019. As per its own showing, CBI has to investigate 22 private educational institutes in all, whereas even after more than a year and four months from the date of registration of the case, CBI has been able to file charge-sheet only with respect to one institute, i.e. K.C. Group of Institutions, Pandoga, District Una. This charge-sheet was filed on 30.03.2020 by keeping the investigations open under Section 173(8) Cr.PC only to come out of the provisions of Section 167(2) of Cr.PC. 4(i)(b). Pace of investigation in the case is very slow. As per its own admission, CBI is yet to investigate dozens of private educational r institutes. Petitioner cannot be incarcerated in custody for an uncertain period of time, which may traverse to years together. 4(i)(c). The charge-sheet filed by the respondent in respect of K.C. Group of Institutions, Pandoga, District Una, reveals that out of twelve accused persons named therein, six belong to the Education D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner, aged about 42 years, is a suspended government servant. He has landed property in the State. He has deep roots in the society and will not flee from justice. He is not in a position to tamper with the prosecution evidence or influence the prosecution witnesses. He will abide by all the terms conditions, which may be imposed upon him by this Court and will join the investigation as and when the respondent directs him to do so. 4(ii). Learned Special Prosecutor for the CBI opposed the bail plea on the grounds that:- 4(ii)(a). Investigation in the FIR is still going on. Around 17 private educational institutes are still to be investigated. No timeline can be given for completion of investigation. As of now, investigation into K.C. Group of Institutions at Pandoga, District Una, has been completed and charge-sheet regarding that has already been presented before the competent Court on 30.03.2020 while keeping open the investigation under Section 173(8) Cr.PC. 4(ii)(b). Investigation conducted so far has practically proved the petitioner to be guilty of grave socio-economic offence as not only substantial financial loss has been caused to the State Government, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigation of one private institute, i.e. K.C. Group of Institutions at Pandoga, District Una. It is yet to formally complete the investigation into K.C. Group of Institutions at Nawanshahr, Punjab. 5(iv). Present is not a case where multiple FIRs were registered with respect to different institutes. One FIR has been registered involving all the private educational institutes. To obviate the compulsion under Section 167(2) Cr.PC, final report has been presented on 30.03.2020 under Section 173(2) Cr.PC only regarding K.C. Group of Institutions, Pandoga, District Una by keeping the investigation open under Section 173(8) Cr.PC. Even in this challan, twelve persons have been named as accused, out of which six belong to Directorate of Higher Education, Himachal Pradesh, including the petitioner. Five accused persons, who were Drawing Disbursing Officers posted in different capacities in the Directorate of Higher Education at the relevant time and responsible for various transactions in issue, have not been arrested. This is despite the fact that all of them are facing the same FIR for the same offences and it has been alleged that all of them had conspired together. 5(v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 45 thereof, which has overriding effect on general provisions of Cr.PC, it was held that economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and are considered as grave offences affecting the economy of the country as a whole. It was also expounded that at the stage of considering the bail application, it requires to be seen whether the accused had requisite mensrea. A balance has to be maintained between a judgment of acquittal and conviction and an order granting bail. The duty of Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. 5(v)(5). It will also be appropriate to take note of (2012) 1 SCC 40, titled Sanjay Chandra Versus Central Bureau of Investigation, wherein Hon'ble Apex Court dealing with the issue of grant of bail in an economic offence of formidable magnitude, observed that deprivation of liberty must be considered a punishment unless it is required to ensure that the accused would stand trial when called upon and that Courts owe more than verbal respect to the principle that punishment begins after conviction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 24. In the instant case, as we have already noticed that the pointing finger of accusation against the appellants is `the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led P. Chidambaram v. Central Bureau of Investigation, CBI had opposed the bail plea on the grounds of:- (i) flight risk; (ii) tampering with evidence; and (iii) influencing witnesses. The first two contentions were rejected by the High Court. But bail was declined on the ground that possibility of influencing the witnesses in the ongoing investigation cannot be ruled out Hon'ble Apex Court after considering (2001) 4 SCC 280, titled Prahlad Singh Bhati v. NCT, Delhi and another; (2004) 7 SCC 528, titled Kalyan Chandra Sarkar v. Rajesh Ranjan and another; (2005) 2 SCC 13, titled Jayendra Saraswathi Swamigal v. State of Tamil Nadu and (2005) 8 SCC 21, titled State of U.P. through CBI v. Amarmani Tripathi, observed as under:- 26. As discussed earlier, insofar as the flight risk and tampering with evidence are concerned, the High Court held in favour of the appellant by holding that the appellant is not a flight risk i.e. no possibility of his abscondence . The High Court rightly held that by issuing certain directions like surrender of passport , issuance of look out notice , flight risk can be secured. So far as tampering with evidence is concerned, the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghtly contended by the learned Senior counsel for the appellant, no material particulars were produced before the High Court as to when and how those two material witnesses were approached. There are no details as to the form of approach of those two witnesses either SMS, email, letter or telephonic calls and the persons who have approached the material witnesses. Details are also not available as to when, where and how those witnesses were approached. 31. It is to be pointed out that the respondent - CBI has filed remand applications seeking remand of the appellant on various dates viz. 22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019, 05.09.2019 and 19.09.2019 etc. In these applications, there were no allegations that the appellant was trying to influence the witnesses and that any material witnesses (accused) have been approached not to disclose information about the appellant and his son. In the absence of any contemporaneous materials, no weight could be attached to the allegation that the appellant has been influencing the witnesses by approaching the witnesses. The conclusion of the learned Single Judge ...that it cannot be ruled out that the petitioner will not influence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of grave offence and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. Grant of bail cannot be thwarted merely by asserting that offence is grave and therefore, petitioner should remain in custody till the investigation of all 22 private educational institutes is completed, regarding timeline of which, respondent apparently has no clue. 5(xi). Even in cases involving economic offences, where there is strong, prima facie, evidence against the accused, it cannot be said by way of an abstract principle that bail should invariably be refused. It is impossible to hold that an accused should not be granted bail during pendency of whole of investigation. 5(xii). The principle laid down by Hon'ble Apex Court in Sanjay Chandra's case, supra, and in various other pronouncements cannot be lost sight of that punishment begins after conviction and that every man is deemed innocent until duly tried and proved guilty. Detention of the petitioner, an under-trial prisoner, for an indefinite period would amount to violation of Article 21 of the Constitution Consequences of pre-trial detention are grave. 5(xiii). The offending acts are already complete and reflected as such in the records. As per status report, voluminous record has already been sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner in any case will report to the Trial Court and the investigating officer, once in a fortnight till the investigation in the case is completed in entirety. (iii). Petitioner shall surrender his passport to the Trial Court, if not surrendered already. He shall not leave India without prior permission of the Court. Petitioner shall intimate the . investigating agency about the place, where he shall reside during the investigations and the trial. Any change in his place of residence shall be immediately notified by him to the investigating agency. (iv). Petitioner shall furnish a cell number to the investigating officer on which he can be contacted at any time. He shall also ensure that the number remains active and switched on at all times. He shall submit details of his Aadhar Card and other proofs of identity with the investigating agency. (v). Petitioner shall not temper with the prosecution evidence or hamper the investigation in any manner whatsoever. (vi). Petitioner shall not make any inducement, threat or promise directly or indirectly to the investigating officer, to the witnesses or to any other person acquainted with the facts of the case to dissuade ..... X X X X Extracts X X X X X X X X Extracts X X X X
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