Point of Law: Grant of Bail - Scholarship misappropriation under fake admission documents - 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.

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. 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. 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 Co