Suraj Bhan Kataria & Anr. v. State of Haryana

Mr.S.S.Mor, Sr.DAG, Haryana. Mr.Kuldeep Tiwari, Advocate, for the complainant. **** ORDER The present petition under Section 438 Cr.P.C. for grant of anticipatory bail has been filed on behalf of Suraj Bhan Kataria and Bansi Lal in case FIR No. 426 dated 19.8.2009 registered under Sections 406/420/467/468/471 and Section 120-B IPC has been added later on, at Police Station City Thanesar, District Kurukshetra. Notice of motion was issued in the case on 2.2.2010 and while issuing notice of motion, the following order was passed: “ Leaned counsel for the petitioners contends that due to certain reason, admission forms of 50 students including the forms of the complainant were rejected by Madhyamik Shiksha Mandal, Madhya Pradesh, for which the petitioners were not responsible. Learned counsel for Crl.Misc. No.2981 of 2010 [2] the petitioners contends that previously also, the petitioners were ready to deposit an amount of Rs.50,000/- and even today they are ready to deposit the amount. Notice of motion to Advocate General, Haryana subject to the condition that an amount of Rs.50,000/- is deposited by the petitioners with the trial Court within a period of ten days from today for 5.3.2010. In the event of arrest of the petitioners, they shall be released on interim anticipatory bail to the satisfaction of the Investigating Officer. They shall join the investigation as and when required by the investigating officer. They shall also comply with the conditions as envisaged under Section 438(2) Cr.P.C., which are as under:- (1)that the petitioners shall make themselves available for interrogation by a police officer as and when required; (2)that the petitioners 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; (3)that the petitioners shall not leave India without the pervious permission of the Court Crl.Misc. No.2981 of 2010 [3] However, it is made clear that the said amount will be subject to the decision of the present case.” In compliance of the order dated 2.2.2010, the petitioners have brought 2 demand drafts which were to be deposited before the Investigating Officer. It was brought to the notice of the Court by the counsel for the complainant as well as the State that the petitioners were running an Institute and accepted money not only from the complainants but from many students and after devoting 2 years of career, students were not allowed to appear in the examination. Many opportunities were granted to deposit the amount which was accepted by the accused, but in spite of that, no amount was deposited. The petitioners were directed to join the investigation again on 8th March, 2010 but they did not join investigation. It was brought to the notice of the Court that the petitioners were not in a position to join investigation because of pendency of several cases against them and have not deposited documents like admission register, fee register etc which were required by the Investigating Officer. Ultimately, the case came up for hearing on 15.7.2010. Learned counsel for the petitioners submitted that petitioner No.1 has joined the investigation and has also deposited the principal amount. Petitioner No.2 did not join the investigation. Learned counsel for complainant as well as State submit that the petitioners have accepted money from many students and the students could not appear in the examination because of the fault of the petitioners Crl.Misc. No.2981 of 2010 [4] and 2 years of their career were wasted due to the action of the petitioners. Learned counsel for the complainant as well as learned counsel for the State were agreed that if the total amount along with interest accepted by the petitioners from the complainant is returned, they would not have any objection with regard to grant of bail. Initially, the petitioners were also agreed to deposit the amount received by them along with interest but the amount was not deposited. Only petitioner No.1 has joined investigation but not co-operated in the investigation and petitioner No.2 did not join the investigation in spite of granting various opportunities. Keeping in view the fact that since the petitioners have neither joined the investigation nor co-operated in the investigation, specific allegations are there against them as petitioners have played with the career of the students and had collected fees and students were not allowed to appear in the examination and moreover petitioners gave assurance to the Court to return the amount accepted by them. They are not entitled to the concession of anticipatory bail as inspite of giving many opportunities. Petitioner No.1 did not deposit the whole amount inspite of assurance to the Court and petitioner No.2 did not join the investigation. The petitioners do not deserve the concession of bail. It is a settled principle of law that anticipatory bail is an extra ordinary remedy. The Hon'ble Supreme Court has laid down in case Adri Dharam Dass Vs. State of West Bengal 2005(2) R.C.R (Criminal) 32 that powers exercisable under Section 438 Cr.P.C. are somewhat extra ordinary in character and is only in exceptional cases where it appears that a person may be falsely implicated. So, the petitioner in order to seek the relief of Crl.Misc. No.2981 of 2010 [5] anticipatory bail in this case is required to make out a special case in his favour or the case appears to be false or where the applicant is likely to be harassed unnecessarily due to some extraneous reasons. Similarly, in Bal Chand Jain v. State of M.P. AIR 1977 SC 366, the Hon'ble Apex Court has laid down the following proposition with regard to grant of anticipatory bail:- “(i) The power under Section 438 Cr.P.C. is of an extraordinary character and must be exercised sparingly and in exceptional cases only. (ii)The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 437 Cr.P.C., are implicit therein and must be read into Section 438 as well. (iii)In addition to the limitations imposed in Section 437, the petitioner must further make out a special case for the exercise of the power to grant anticipatory bail.” So, keeping in view the facts and circumstances of the case, and the gravity and seriousness of the offence, no ground is made out for granting anticipatory bail to the petitioner. Under these circumstances, the present petition anticipatory bail is hereby dismissed. (DAYA CHAUDHARY) JUDGE July 15, 2010. raghav