Bhaskar Raj Pradhan ORDER
Bhaskar Raj Pradhan, J.
1. The locus classicus on the concept of "anticipatory bail" vis--vis the concern for personal liberty under Article 21 of the Constitution of India is the Constitutional Bench judgment in re: Shri Gurbaksh Singh Sibbia & Ors. v. State of Punjab MANU/SC/0215/1980 : (1980) 2 SCC 565. The said judgment and the comparatively recent rendition of the Supreme Court in re: Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. MANU/SC/1021/2010 : (2011) 1 SCC 694 were relied upon by Mr. A.K. Upadhyaya, learned Senior Advocate for the Applicant who apprehends imminent arrest in view of the lodgment of First Information Report (FIR) No. 0004 dated 16.03.2019 at the office of the Crime Branch (CID), Police Headquarter, Gangtok for alleged offences committed by unknown person under Section 419, 468, 471, 420, 120B of the Indian Penal Code, 1860 (IPC) as well as Section 66 (C) and Section 66(D) of the Information Technology Act, 2000 (IT Act).
2. Emphasizing the need to preserve the personal liberty of the Applicant the learned Senior Counsel submitted that the Applicant was not involved in any crime for which punishment prescribed was death or imprisonment for life. He pointed out the order dated 04.06.2019 passed by the learned Judicial Magistrate, 1st Class, East Sikkim and submitted that the co-accused had already been granted regular bail. He would draw this Courts attention to a certificate issued by Katihar Medical College, Bihar dated 25.05.2019 and emphasise that he was a sick person. The learned Senior Counsel stressed that the Applicant hails from a respectable family. His father Dr. Saibal Gupta is presently a Professor and Head of the Department of Forensic Medicine, Katihar Medical College, Bihar and also its Medical Superintendent and Vice Principal. The Applicant himself is a Doctor by profession and running a Nursing Home at Malbazar, Jalpaiguri, West Bengal. The Applicant's mother works in a school in Katihar and his wife is also a medical graduate associated with running the Nursing Home with her husband. The learned Senior Counsel drew the attention of this Court to the order dated 30.05.2019 passed by the learned Sessions Judge, East Sikkim at Gangtok in Criminal Misc. Case (Bail) No. 20 of 2019. This was on an application for anticipatory bail filed by the Applicant in anticipation of his arrest for the same FIR for which, after its rejection, the Applicant seeks protection from this Court. One of the main contentions, much emphasised by the learned Senior Counsel, is that the Applicant was not implicated in the FIR.
3. The State is being represented from the date of the first hearing itself. Mr. S.K. Chettri, learned Assistant Public Prosecutor for the Respondent vehemently objected to the grant of anticipatory bail to the Applicant. It was submitted that substantial materials have been collected which directly implicate the Applicant. The said materials were placed before this Court for its perusal along with the case diary. The learned Assistant Public Prosecutor submitted that the Petitioner is also involved in yet another case for which another FIR bearing no. 201/2018 dated 21.09.2018 (previous FIR) under Section 419 IPC has been registered in the Sadar Thana, East District at Gangtok against the Applicant. It was pointed out that the previous FIR also reflects identical modus operandi as involved in the present FIR for defrauding aspirants for medical seats in Sikkim Manipal Institute of Medical Sciences (SMIMS). It was stated that although attempts have been made to arrest the Applicant he has been evading it. The learned Assistant Public Prosecutor relied upon the judgment of this Court in re: Susanta Kumar Sahoo v. State of Sikkim MANU/SI/0021/2014 and submitted that an absconder is not entitled to anticipatory bail.
4. As held by the Constitutional Bench of the Supreme Court in re: Gurbaksh Singh Sibbia (supra) Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C.) which is concerned with personal liberty cannot be whittled down by reading restrictions and limitation into it. In order to meet the challenge of Article 21 of the Constitution of India the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Gurbaksh Singh Sibbia was a Minister in the Congress Ministry of the Government of Punjab. Grave allegations of political corruption were made against him. The matter travelled to the Supreme Court from the judgment of a full Bench of the High Court of Punjab and Haryana dismissing the application for anticipatory bail.
5. The Constitutional Bench noticed that the Cr.P.C. did not contain any specific provision corresponding to the present Section 438 Cr.P.C. It was also noticed that the Law Commission of India, in its 41st report dated September 24, 1969 pointed out the necessity of introducing a provision for grant of anticipatory bail. The necessity for granting anticipatory bail, it was observed in the report arose mainly because sometimes influential persons try to implicate their rivals in getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, these tendencies were showing signs of steady increase. It was observed that apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. It was observed that it would not be practicable to lay down conditions under which alone anticipatory bail could be granted and Superior Courts would undoubtedly exercise their discretion properly.
6. The Supreme Court held in re: Gurbaksh Singh Sibbia (supra) that in regard to anticipatory bail, if the proposed accusation appears to stem not from motive of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the Applicant by having him arrested, a direction for the release of the Applicant on bail in the event of his arrest would generally be made. However, besides making a statement that he is innocent and not involved in the alleged commission of offence the Applicant herein has neither pleaded nor placed any material to show that from some ulterior motive to injure and humiliate him he was sought to be arrested.
7. The Constitutional Bench of the Supreme Court also held that on the other hand, if it appears likely, considering the antecedents of the Applicant, that taking advantage of the order of anticipatory bail he will flee from justice such an order would not be made. The submissions of the learned Assistant Public Prosecutor were focused on the fact that in spite of the two FIRs the Applicant has been fleeing from justice.
8. The fact that the Applicant was aware of similar accusation made against him in the previous FIR but did not disclose about it in the application before this Court does not auger well with his claim of innocence.
9. Mr. A.K. Upadhayaya submitted that although the Applicant had in fact approached the Sessions Court for anticipatory bail apprehending arrest in connection with the same FIR there was no impediment in law to approach the High Court for anticipatory bail once again as he was approaching a higher Court.
10. Section 438 Cr.P.C. permits any person who has reason to believe that he may be arrested on accusation of having committed a non-bailable offence to approach the High Court or the Court of Session for anticipatory bail.
11. The Applicant approached the Sessions Court under Section 438 Cr.P.C. which was rejected vide order dated 30.05.2019. The Applicant has not filed copy of the application for anticipatory bail preferred before the Sessions Court. The order dated 30.05.2019 reflects that the Applicant had sought to impress the learned Sessions Judge that there is every possibility of him being arrested in connection with the present FIR and that there is no material against him. It was submitted that the CID is determined to arrest the Applicant only to humiliate and harass him. As argued by Mr. A.K. Upadhayaya before this Court it was also submitted before the learned Sessions Judge that Section 438 Cr.P.C. confers ample powers to protect the Applicant from unjustified arrest when there is no material against him.
12. The said application for anticipatory bail before the Sessions Court was objected to by the learned Public Prosecutor. It was submitted that the offence is of wide magnitude having great adverse impact on the society in as much as large number of gullible students and their parents were cheated by the Applicant on the false promise of securing admission in the medical institute. It was pointed out that clinching materials pointing directly towards the involvement of the Applicant were available. Though FIR was registered on 16.03.2019 the Applicant had been evading the Investigating Officer and thus proper investigation has not been possible. The involvement of the Applicant could also be seen from other documentary evidence. It was also pointed out that the Applicant was involved in a similar matter earlier and therefore his custodial interrogation was required and if released on bail there was every possibility of the Applicant abusing his liberty.
13. The learned Sessions Judge examined the case materials, including the statements of witnesses, case diary and rejected the application for anticipatory bail. It was held that the alleged offences could not be viewed lightly and the same are of great magnitude affecting not only the education system but the society at large. The role of the Applicant was prima facie direct in the commission of the alleged offence. Nothing convincing was put forward to suggest false implication. No explanation was forthcoming regarding the involvement in similar incidents on earlier occasion although the learned Public Prosecutor had submitted that he was involved. Since the registration of the case it has not been possible for the investigating agency to contact the Applicant.
14. The rejection of anticipatory bail application by the learned Sessions Judge is not in appeal or revision. The present application for anticipatory bail is an independent application filed on 07.06.2019 barely one month after the rejection of the anticipatory bail application by the learned Sessions Judge.
15. A three Judge Bench of the Rajasthan High Court in re: Ganesh Raj v. State of Rajasthan MANU/RH/0044/2005 while answering the question whether second or subsequent bail application under Section 438 Cr.P.C. is maintainable or not held:
"25. In the ultimate analysis, placing reliance on the ratio indicated in Kalyan Chandra Sarkar's case (supra), we hold that second or subsequent bail application under section 438 Cr.P.C. can be filed if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete...."
16. One ground which has not been dealt with by the learned Sessions Judge is the ground of illness pressed before this Court. The certificate of the Katihar Medical College, Bihar is dated 25.05.2019. The said certificate advices bed rest for the Applicant for a period of four weeks. The period of four weeks expired on 22.06.2019. The application for anticipatory bail was disposed by the learned Sessions Judge on 30.05.2019 on which date the said medical certificate dated 25.05.2019 ought to have been available and if desired pressed before the Sessions Court. However, there is no mention about any claim for bail on the ground of illness before the Sessions Court. The certificate dated 25.05.2019, it is noticed, has been issued by the same Medical College in which the Applicant claims his father is the Professor and Head of the Department of Forensic Medicine as well as the Medical Superintendent and Vice Principal. In any case it is quite evident that the Applicant has had more than his share of rest needed for his ailment, if at all. This ground therefore, would not per se entitle him for anticipatory bail.
17. The next contention which needs to be addressed is the claim of parity as the co-accused in the FIR had been granted bail by the learned Judicial Magistrate vide order dated 04.06.2019. The order dated 04.06.2019 was passed on an application for regular bail. The learned Judicial Magistrate thought it fit to grant bail to the Petitioner therein on the ground that the offence is not punishable with death or imprisonment for life and that there was nothing on record to show that the Petitioner shall abscond or tamper with evidence and witnesses for the prosecution. In the present case the case diary reflects that the Applicant fled when sought to be apprehended. In spite of knowledge of two FIRs lodged against him the record reflects that the Applicant has failed to join the investigations. A perusal of the order dated 30.05.2019 passed by the learned Sessions Judge reflects that the Applicant had filed another bail application no. 3 of 2015 before this Court in yet another case. The learned Assistant Public Prosecutor submits that the failure of the Applicant to join in the investigation has hampered the investigation. In the circumstances, no parity can be claimed for an order of anticipatory bail on the ground that the co-accused has secured regular bail. No further change in circumstance or changes in the law have been pleaded by the Applicant.
18. Mr. A.K. Upadhayaya strenuously urged that if granted anticipatory bail he would join in the investigation. The fact that he had moved the Sessions Court for anticipatory bail more than a month prior to approaching this Court does reflect that the Applicant is aware of the accusation of the commission of cheating by personation; forgery for the purpose of cheating; using as genuine forged document or electronic record; cheating and dishonesty inducing delivery of property; criminal conspiracy; identity theft and cheating by personation by using computer resource made against him. It is also evident that the Applicant was made aware of lodgement of the previous FIR at least during the hearing of his anticipatory bail application before the Sessions Court. The case diary however, reflects that he has not only evaded arrest but fled from justice when sought to be apprehended.
19. This Court is strongly of the opinion that this is therefore not a fit case for exercising discretion under Section 438 Cr.P.C. in favour of the Applicant. It does not sound to reason to arm the Applicant with anticipatory bail when pitted against such grave allegation of defrauding young medical aspirants with the lure of admission in SMIMS. The fact that there are more than one FIR registered for similar offences reveal the gravity of the situation. In such circumstances, custodial interrogation may be a necessity and consequently it would greatly harm the investigation and impede the prospect of further investigation if the Applicant is granted anticipatory bail.
20. On the touchstone of the law declared by the Supreme Court in re: Siddharam Satlingappa Mhetre (supra) while considering the prayer for grant of anticipatory bail the balance in favour of the investigating agency to ensure free fair and full investigation, far outweighs all other consideration sought to be projected in favour of the Applicant. In any case no ground to satisfy the reason for which Section 438 was originally incorporated in Cr.P.C. has been urged or made out by the Applicant. Per contra, both Gurbaksh Singh Sibbia (supra) and Siddharam Satlingappa Mhetre (supra) were relating to alleged political rivalry. Unless the investigating agency is given a free hand in the light of the allegations made against the Applicant the absolute truth may not surface. The materials collected by the investigating agency so far placed for perusal before this Court does reflect prima facie involvement of the Applicant in the offences alleged. The lodging of more than one FIR for commission of similar offences for different periods of time also reflects accusation of repeated commission of similar offences. Considering the conduct of the Applicant which has definitely not been amenable for investigation thus far the question of granting anticipatory bail does not arise.
21. The application for anticipatory bail is rejected.
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