TaxTMI 
TaxTMI 
2020 (9) TMI 1163
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Allegations:- 2(i). An FIR No.133 of 2018 was registered on 16.11.2018 at Police Station East, Shimla. FIR was registered on the basis of a complaint made by the State Project Officer, State Project Monitoring and New Initiative Unit, Department of Higher Education, Himachal Pradesh, Shimla. It was alleged in the FIR that various complaints were received in the Education Department regarding non-receipt of scholarships by the students under the State and Centrally Sponsored Schemes for SC/ST/OBC/MC students. Preliminary inquiry conducted by the State Project Officer revealed mis-appropriation of scholarship funds on large scale with complicity of officials working in the Education Department, Central Government, Banks and Private Institutions. It was further alleged in the FIR that income/caste certificates of students were not verified and did not appear to be genuine. Through single application, disbursement of scholarships under two different categories of SC & ST also came to light. Many loopholes were detected in 'hp-e-pass' software used by the State Education Department, whereby the same mobile and bank account numbers were accepted for more than one applicatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sp; Rs. 2,49,65,04,745 Rs. 16,58,35,220 Rs. 8,03,750 Rs. 39,51,52,580 Rs. 2,09,93,53,223 Disbursed by Disbursed by Disbursed by Disbursed by Govt. Institutions Private Institutions Govt. Institutions Private Institutions 2(iii). According to the status report, investigation is being conducted institution-wise. 22 private educational institutions in all are under investigation. Investigation of one of the institute, i.e. K.C. Group of Institutions, Pandoga, District Una, has been completed. Charge-sheet for embezzlement of scholarship funds of Rs. 13....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssed 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 allegedly made to avoid detection by 'hp-e-pass'. iv). It has also been alleged that the petitioner received 10% amount of the scholarship claim as bribe from K.C. Group of Institutions. v). It has also been alleged that petitioner's wife was shown as partner in ASA Marketing Solutions, having a share of 33.33%, allegedly owned by two other partners, who are also the owners of eight institutes including four National Institute of Electronics & Information Technology (NIELIT) Centres at Chamba, Nurpur, Una, Nahan and two ASAMS Education Group at Fatehpur & Nahan and two SDS Education Group at Una and....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Department, namely:- (i) Petitioner, the then dealing hand-cum-Superintendent Grade-II, Scholarship Branch, Directorate of Higher Education, Shimla. (ii) Smt. Mala Mehta, the then DDO-cum-Assistant Director, Scholarship Branch, Directorate of Higher Education, H.P., Shimla. (iii) Sh. Shriram Sharma, the then Superintendent Grade-I-cum-DDO, Scholarship Branch, Directorate of Higher Education, H.P., Shimla. (iv) Sh. Surinder Mohan Kanwar, the then Superintendent Grade-I-cum-DDO, Scholarship Br....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a 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, but the students of weaker sections of society have also been deprived of their legitimate due. In the event of conviction of the petitioner, severe punishment has been prescribed in law. 4(ii)(c). The respondent has strong apprehension that in case of enlargement on bail, the petitioner will tamper with the evidence, influence the witnesses and can also abscond. In support of these submissions, reliance upon various judgments was placed. 5. Observations:- It is well settled that grant of bail in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng 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)(1). In (2017) 13 SCC 751, titled State of Bihar and another Versus Amit Kumar @ Bachcha Rai, Hon'ble Supreme Court held that bail cannot be granted in a mechanical manner to the alleged kingpin of 'Bihar Toppers Scam' on the ground that accused was in custody for long time. Socio-economic offences constitute a class apart and need to be visited with different approach in matter of bail. 5(v)(2). Hon'ble Apex Court in (2013) 7 SCC 466, titled Nimmajadda Prasad Versus CBI, while observing that white col....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction 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 that every man is deemed to be innocent until duly tried and found guilty. Object of bail is neither punitive or preventive. Hon'ble Court sounded a caveat that it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him taste of imprisonment as a lesson. Discretionary jurisdiction to grant bail to an accused pending trial has to be exercised with car....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al 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 tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Court rightly held that the documents relating to the case are in the custody of the prosecuting agency, Government of India and the Court and there is no chance of the appellant tampering with evidence. 28. So far as the allegation of possibility of influencing the witnesses, the High Court referred to the arguments of the learned Solicitor General which is said to have been a part of a "sealed cover" that two material witnesses are alleged to have been approache....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 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 the witnesses directly or indirectly....." is not substantiated by any materials and is only a generalised apprehension and appears to be speculative. Mere averments that the appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant; more so, when the appellant has been in custody for nearly two months, co-o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance 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 legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ple 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 seized by CBI during raids conducted by it in 22 private institutes, though investigation is still going on. In such situation, no purpose is going to be served by keeping the petitioner in judicial custody.. 5(xiv). Investigation should not be carried out indefinitely and forever without any regard to time, considering the interests of all involved. Nonetheless it is open to the respondent to continue to investigate into the matter,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 him from disclosing such facts to the Courts or any Police Officer. Petitioner shall not maintain any direct or indirect contact with officials of bank/ education department/private educational institutions concerned with the case. Petitioner shall not deal with any record relevant to the case. He shall not prejudice the proceedings in the matter. (vii). Petition....