# Hemant Kumar @ Hemant Kumar Saraswat v. State of U.P. & Anr

- **Citation:** (2022) 3 ILRA 70
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 18604 of 2021
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hemant-kumar-hemant-kumar-saraswat-v-state-of-u-p-anr-47601
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 438 - Indian
Penal Code,1860 - Section 420, 467, 468 &
471 - application-rejection-termination of
applicant being beneficiary of a forged
B.Ed marksheet who was appointed as
Assistant Teacher and continued to work
for about 10 years-privilege of the prearrest bail should be granted only in
exceptional cases-arrest is a part of the
investigation intended to secure several
purposes-cusodial interrrogation may be
necessary to reach the roots of the crimebail order granted to other persons are not
binding
on
the
court-Moreso,
one
deserving candidate has lost his seat for
lifetime by the act of the applicantWhether to grant or not is a matter of
discretion-Hence,
applicant
cannot
be
granted bail keeping in mind gravity and
nature of offence.(Para 1 to 23)

B. Ordinarily, arrest is a part of the
process
of
investigation
intended
to
secure several purposes. the accused may
have to be questioned in detail regarding
various facets of motive, preparation,
commission and aftermath of the crime.It
may be necessary to curtail his freedom in
order to enable the investigation to
proceed without hindrance and to protect
witnesses and persons connected with the
victim
of
crime,
to
prevent
his
disappearance, to maintain law and order
in the locality. For these or other reasons,
arrest may become an inevitable part of
the process of investigation.The legality of
the proposed arrest cannot be gone into in
an application under Section 438 of the
Code. The role of the investigator is well
defined and the jurisdictional scope of
interference by the court in the process of
investigation
is
limited.The

court
ordinarily will not interfere with the
investigation of a crime or with the arrest
of
the
accused
in
a
cognizable
offence.(Para 11 to 18)

The application is rejected. (E-6)

List of Cases cited:
3 All. Hemant Kumar @ Hemant Kumar Saraswat Vs. State of U.P. & Anr.
71

## Text

70 INDIAN LAW REPORTS ALLAHABAD SERIES

(iv) The applicant shall remain
present, in person, before the Trial Court on
dates fixed for (1) opening of the case, (2)
framing of charge and (3) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the Trial Court absence of
the applicant is deliberate or without
sufficient cause, then it shall be open for
the Trial Court to treat such default as
abuse of liberty of bail and proceed against
him in accordance with law.

15. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

16. It is made clear that observations
made in granting bail to the applicant shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.
----------
(2022)03ILR A70
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.12.2021

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 18604 of 2021

Hemant
Kumar
@
Hemant
Kumar
Saraswat ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Surya Bhan Singh, Sri Brijesh Kumar
Verma, Sri Swapnesh Singh, Sri Akshay
Gupta, Sri Shiv Nath Singh (Sr. Advocate)

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 438 - Indian
Penal Code,1860 - Section 420, 467, 468 &
471 - application-rejection-termination of
applicant being beneficiary of a forged
B.Ed marksheet who was appointed as
Assistant Teacher and continued to work
for about 10 years-privilege of the prearrest bail should be granted only in
exceptional cases-arrest is a part of the
investigation intended to secure several
purposes-cusodial interrrogation may be
necessary to reach the roots of the crimebail order granted to other persons are not
binding
on
the
court-Moreso,
one
deserving candidate has lost his seat for
lifetime by the act of the applicantWhether to grant or not is a matter of
discretion-Hence,
applicant
cannot
be
granted bail keeping in mind gravity and
nature of offence.(Para 1 to 23)

B. Ordinarily, arrest is a part of the
process
of
investigation
intended
to
secure several purposes. the accused may
have to be questioned in detail regarding
various facets of motive, preparation,
commission and aftermath of the crime.It
may be necessary to curtail his freedom in
order to enable the investigation to
proceed without hindrance and to protect
witnesses and persons connected with the
victim
of
crime,
to
prevent
his
disappearance, to maintain law and order
in the locality. For these or other reasons,
arrest may become an inevitable part of
the process of investigation.The legality of
the proposed arrest cannot be gone into in
an application under Section 438 of the
Code. The role of the investigator is well
defined and the jurisdictional scope of
interference by the court in the process of
investigation
is
limited.The

court
ordinarily will not interfere with the
investigation of a crime or with the arrest
of
the
accused
in
a
cognizable
offence.(Para 11 to 18)

The application is rejected. (E-6)

List of Cases cited:
3 All. Hemant Kumar @ Hemant Kumar Saraswat Vs. State of U.P. & Anr.
71
1. Siddharam Satlingappa Mhetre Vs St. of
Mah.(2011) 1 SCC 694

2. Niranjan Hemchandra Sashittal Vs St. of Mah.
(2013) 4 SCC 642

3. Asian Resurfacing of Road Agency Pvt. Ltd.Vs
CBI (2018) 16 SCC 299

4. Jai Prakash Singh Vs St. of Bih. (2012) 4 SCC
379

5. Sushila Aggarwal Vs St.(NCT of Delhi) (2020)
5 SCC 1

6. P. Chidambaram Vs ED (2019) 9 SCC 24

7.
Supreme
Bhiwandi
Wada
Manor
Infrastructure (P) Ltd. Vs St. of Mah. (2021) 8
SCC 753

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Shiv Nath Singh, learned
Senior Advocate assisted by Sri Swapnesh
Singh, Advocate holding brief of Sri Surya
Bhan Singh, learned counsel for the
applicant and Sri Vinod Kant, Senior
Advocate, learned Additional Advocate
General, assisted by Sri Sanjay Kumar
Singh, learned Additional Government
Advocate for the State of U.P. and perused
the records.

2. This second anticipatory bail
application under Section 438 of Code of
Criminal Procedure, 1973 has been filed by
the applicant Hemant Kumar @ Hemant
Kumar Saraswat, seeking anticipatory bail,
in the event of arrest in Case Crime No.
0067 of 2021, under Sections 420, 467,
468, 471 IPC, Police Station Manth,
District Mathura.

3.

The
first
anticipatory
bail
application being Crl. Misc. Anticipatory
Bail Application No. 11802 of 2021
(Hemanth Kumar Vs. State of U.P. and 2
others) was rejected by Hon'ble Vivek
Agarwal, J. vide order dated 15.06.2021.
The said order is quoted herein-below:

"None for the applicant though
the link was sent to the learned counsel for
the applicant. Sri Vinod Kant, learned
Additional Advocate General for the State.

This
application
seeking
anticipatory bail has been filed by the
applicant being aggrieved of registration of
a criminal case registering Case Crime No.
0067 of 2021 at Police Station- Manth,
District- Mathura, under Sections 420, 467,
468, 471 IPC. Allegation on the applicant
is that he is a beneficiary of a forged
marksheet,
which
he
had
allegedly
obtained from Agra University, showing
him to have qualified the B.Ed Examination
in the academic session 2004-05, whereas
according to the applicant neither his
marksheet is forged nor there is any
manipulation.

Learned counsel for applicant
submits that on the strength of this
marksheet, he was appointed as 'Assistant
Teacher' in a primary school where he had
joined his services on 29.12.2010 and he
continued to work for about 10 years when
his service was terminated. It is submitted
that applicant is innocent and under
similar facts and circumstances in Criminal
Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 8248 of 2021 (Lokendra
Pal Singh and 17 Others) benefit of
anticipatory bail has been extended.

Learned A.A.G., in his turn,
submits
that
interim
protection
was
afforded in case of Lokendra Pal Singh
because learned A.G.A. in that case had not
produced instructions and therefore, matter
was thought to be considered on a later
date and interim protection was granted till
27.04.2021. Sri Vinod Kant submits that his
instructions are complete. There is a racket
72 INDIAN LAW REPORTS ALLAHABAD SERIES
going on in the State of Uttar Pradesh
where beneficiaries are obtaining forged
marksheets
in
connivance
with
the
middleman and the main conspirators, who
are having thorough knowledge of the
system,
operationalized
in
various
universities.

It is submitted that authorities
are deliberately trying to protect the
concerned officials of the university, who
in collusion with certain other persons,
manipulated with the marksheet and
cheated innocent persons like applicant.

Applicant has directly come to
this Court because F.I.R. was lodged on
20.04.2021. Therefore, applicant has
been able to make out an extraordinary
circumstances in the light of the judgment
of Five Judges Bench of this Court in
case of Ankit Bharti Vs. State of U.P. and
another; 2020 (3) ADJ 165 (F.B.)., by
directly approaching this Court.

After hearing learned counsel
for the parties and going through the
record, it is evident that applicant is a
beneficiary of a forged marksheet. It is a
matter of investigation as to whether
applicant had actually appeared in the
examination conducted by the university
and had obtained a genuine marksheet or
whether he is a party to the offence or is
a victim of the offence, committed by
certain other influential accused persons,
which may include officials of the
university. In view of such facts, it is
necessary that applicant surrender before
the Court and cooperate with the
Investigating Officer, inasmuch as, the
chain of beneficiary, middleman and
mastermind is long and unless and until,
they are all subjected to investigation for
which sometimes custodial investigation
may also be necessary to reach the roots
of the crime, which is paralyzing the
fabric of the society and also attacking on
the roots of the education system, may not
be exposed.

In view of such facts, there being
no parity vis-a-vis case of Lokendra Pal
Singh and Others, in the present case, I am
of the opinion that for the present,
applicant has failed to make out a case for
grant of anticipatory bail, thus, application
fails and is dismissed."

4. The present anticipatory bail
application has been filed with the
following prayer:-

"It is therefore most respectfully
prayed that this Hon'ble Court may
graciously be pleased to allow this
Anticipatory Bail Application and enlarge
the applicant on bail in Case Crime No.
0067 of 2021, under Sections 420, 467, 468
and 471 IPC at Police Station Manth,
District Mathura, otherwise the applicant
shall suffer irreparable loss and injury."

5. Learned counsel for the applicant
argued that the applicant was appointed as
Assistant Teacher in Junior Basic School
during the period 2008-2011 after obtaining
his B.Ed. Degree during the Session 200405 from Dr. B.R. Ambedkar University,
Agra. He joined his services on 29.12.2010
and continued to work their for about ten
years after which his services have been
terminated. It was alleged that the B.Ed.
mark-sheet and degree which was one of
the
required
qualifications
for
the
appointment was found to be forged and as
such the present First Information Report
has been lodged.

6. Learned counsel for the applicant
has further argued that the controversy with
regards to the B.Ed. mark-sheet and degree
of Agra University for the year 2004-05
was the subject matter of a writ petition
3 All. Hemant Kumar @ Hemant Kumar Saraswat Vs. State of U.P. & Anr.
73
which was converted into a Public Interest
Litigation No. 2906 of 2013 (Sunil Kumar
Vs. Dr. Bhimrao Ambedkar University and
another) in which the matter was directed
to
be
investigated
by
a
Special
Investigating Team which submitted its
report on 14.08.2017 alleging therein that
there were around 3500 mark-sheets/degree
from which about 1000 mark-sheets/degree
had been tampered. It is argued that the
termination of the applicant vide order
dated 18.12.2019 was challenged before
this Court in Writ A No. 20784 of 2019
(Hemant Kumar Saraswat Vs. State of U.P.
and 4 others). Since large number of
candidates were affected whose services
were terminated they had also preferred
writ petitions before this Court which were
all clubbed together and Writ A No. 190 of
2020 (Smt. Neelam Chauhan Vs. State of
U.P. and others) was made a leading writ
petition
which
was
dismissed
vide
judgment and order dated 29.04.2020 by
this Court. The order of dismissal was
challenged in a Special Appeal (Defective)
No. 634 of 2020 (Kali Charan and 10
others Vs. State of U.P. and 4 others) before
a Division Bench of this Court in which
vide order dated 21.09.2020, the effect and
operation of the judgment and order dated
29.04.2020 was stayed, and thereafter, the
appellants were permitted to continue in
their services. The said special appeal was
renumbered as Special Appeal No. 488 of
2020 and was decided vide judgment and
order dated 26.02.2021 in a bunch of cases
in which Special Appeal No. 326 of 2020
(Smt. Kiran Lata Singh Vs. State of U.P.
and others) was the leading case. Against
the said judgment and order, a Special
Leave to Appeal (C) No. 7157-7160 of
2021 (Rajesh Kumar Chaturvedi etc. Vs.
State of U.P. and others) was filed before
the Apex Court in which vide order dated
01.07.2021, the order passed by the
Division Bench in the Special Appeal and
also the order passed in the writ petition
was stayed and it was directed that the
respondents shall pay the current salary to
the appellants. Due to non compliance of
the said order, a contempt petition was
filed.

7. Learned counsel for the applicant
argued that the applicant is one of the
appellants before the Apex Court and he is
the petitioner No.103 in the array of
petitioners therein. The contempt petition
was ordered to be closed vide order dated
01.10.2021, in view of the statement made
in the matter on behalf of the State that they
are ready and willing to pay the current
salary to the petitioners from the date of
passing of the order.

8. Learned counsel has argued that in
identical matters, other teachers have been
granted
anticipatory
bail/interim
anticipatory bail by co-ordinate Benches of
this Court. The order of the Apex Court has
been considered in some of the matters and
anticipatory bail has been granted to them.
Learned counsel has placed before this
Court annexure 7 to the affidavit in support
of the anticipatory bail application and has
placed the orders of other persons who
have been granted anticipatory bail/interim
anticipatory bail. It is argued that as such
the applicant is also entitled to be released
on anticipatory bail as the same is a new
and fresh ground now.

9. Per contra, learned Additional
Advocate General ably assisted by learned
Additional
Government
Advocate
appearing for the State of U.P. have argued
that the first anticipatory bail application of
the applicant was rejected by a detailed
order on merits. It is argued that even the
ground of parity with some of the persons
74 INDIAN LAW REPORTS ALLAHABAD SERIES
being Lokendra Pal Singh and 17 others
was considered by the said court. It is
argued that the applicant is not cooperating
in the investigation at all. He has been
called upon to provide the documents but
he has till date not provided any document
which would let the investigation proceed.
It is argued that left with no other option
the Investigating Officer has moved various
applications before the concerned trial
court for issuance of non bailable warrant
against the applicant but no order has been
passed till date by the said court.

10. It is argued that due to non
cooperation of the applicant, the investigation
in the matter is pending. The applicant is even
not responding to the call of the Investigating
Officer to provide the documents to him
which would let the investigation proceed
and conclude. It is argued that even in parcha
No.11 dated 08.06.2021, the Investigating
Officer has made a note about persuasion of
his application for issuing non bailable
warrant against the applicant.

11. The Section 438 of the Code of
Criminal Procedure, 1973 as introduced in
the State of Uttar Pradesh on 06.06.2019
reads as follows:--

"438. (1) Where any person has
reason to believe that he may be arrested
on accusation of having committed a nonbailable 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 Court in respect of any
cognizable offence;

(iii)
the
possibility
of
the
applicant to flee from justice; and

(iv) where the accusation has
been made with the object of injuring or
humiliating the applicant by having him so
arrested, either reject the application
forthwith or issue an interim order for the
grant of anticipatory bail:

Provided that where the High Court
or, as the case may be, the Court of Session,
has not passed any interim order under this
sub-section or has rejected the application for
grant of anticipatory bail, it shall be open to
an officer in-charge of a police station to
arrest, without warrant, the applicant on the
basis of the accusation apprehended in such
application.

(2) Where the High Court or, as the
case may be, the Court of Session, considers it
expedient to issue an interim order to grant
anticipatory bail under sub-section (1), the
Court shall indicate therein the date, on which
the application for grant of anticipatory bail
shall be finally heard for passing an order
thereon, as the Court may deem fit, and if the
Court passes any order granting anticipatory
bail, such order shall include inter alia the
following conditions, namely:--

(i) that the applicant shall make
himself available for interrogation by a
police officer as and when required;

(ii) that the applicant 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;

(iii) that the applicant shall not
leave India without the previous permission
of the Court; and

(iv) such other conditions as may
be imposed under sub - section (3) of
3 All. Hemant Kumar @ Hemant Kumar Saraswat Vs. State of U.P. & Anr.
75
section 437, as if the bail were granted
under that section.

Explanation : The final order
made on an application for direction under
sub - section (1); shall not be construed as
an interlocutory order for the purpose of
this Code.

(3) Where the Court grants an
interim order under sub - section (l), it shall
forthwith cause a notice being not less than
seven days notice, together with a copy of
such order to be served on the Public
Prosecutor and the Superintendent of Police,
with a view to give the Public Prosecutor a
reasonable opportunity of being heard when
the application shall be finally heard by the
Court.

(4) On the date indicated in the
interim order under sub - section (2), the
Court shall hear the Public Prosecutor and
the applicant and after due consideration of
their contentions, it may either confirm,
modify or cancel the interim order.

(5) The High Court or the Court of
Session, as the case may be, shall finally
dispose of an application for grant of
anticipatory bail under sub-section (l), within
thirty days of the date of such application.

(6) Provisions of this section shall
not be applicable,--

(a) to the offences arising out of, -
-

(i)
the
Unlawful
Activities
(Prevention) Act, 1967;

(ii) the Narcotic Drugs and
Psychotropic Substances Act, 1985;

(iii) the Official Secrets Act,
1923;

(iv) the Uttar Pradesh Gangsters
and Anti Social Activities (Prevention) Act,
1986.

(b) in the offences, in which death
sentence can be awarded.

(7) If an application under this
section has been made by any person to the
High Court, no application by the same
person shall be entertained by the Court of
Session."

12. In the case of Siddharam
Satlingappa
Mhetre
v.
State
of
Maharashtra : (2011) 1 SCC 694, the
Apex Court, after considering its earlier
judgments, laid down certain factors and
parameters
to
be
considered
while
considering application for an anticipatory
bail. In para 112 it has been held as under:

"112. The following factors and
parameters can be taken into consideration
while dealing with the anticipatory bail:

(i). The nature and gravity of the
accusation and the exact role of the
accused must be properly comprehended
before arrest is made;

(ii). The antecedents of the
applicant including the fact as to whether
the accused has previously undergone
imprisonment on conviction by a Court in
respect of any cognizable offence;

(iii).
The
possibility
of
the
applicant to flee from justice;

(iv).
The
possibility
of
the
accused's likelihood to repeat similar or the
other offences;

(v). Where the accusations have
been made only with the object of injuring
or humiliating the applicant by arresting
him or her;

(vi).
Impact
of
grant
of
anticipatory bail particularly in cases of
large magnitude affecting a very large
number of people;

(vii). The courts must evaluate the
entire available material against the
accused very carefully. The court must also
clearly comprehend the exact role of the
accused in the case. The cases in which
accused is implicated with the help of
sections 34 and 149 of the Penal Code,
76 INDIAN LAW REPORTS ALLAHABAD SERIES
1860 the court should consider with even
greater
care
and
caution
because
overimplication in the cases is a matter of
common knowledge and concern;

(viii).
While
considering
the
prayer for grant of anticipatory bail, a
balance has to be struck between two
factors namely, no prejudice should be
caused
to
the
free,
fair
and
full
investigation
and
there
should
be
prevention of harassment, humiliation and
unjustified detention of the accused;

(ix).
The
court
to
consider
reasonable apprehension of tampering of
the witness or apprehension of threat to the
complainant;

(x).
Frivolity
in
prosecution
should always be considered and it is only
the element of genuineness that shall have
to be considered in the matter of grant of
bail and in the event of there being some
doubt as to the genuineness of the
prosecution, in the normal course of events,
the accused is entitled to an order of bail."

13.

In
Niranjan
Hemchandra
Sashittal v. State of Maharashtra : (2013)
4 SCC 642, the Apex Court observed in
para 26 as follows:

"26: That corruption is not to be
judged by degree, for corruption mothers
disorder,
destroys
societal
will
to
progress,
accelerates
undeserved
ambitions, kills the conscience, jettisons
the glory of the institutions, paralyses the
economic health of a country, corrodes
the sense of civility and mars the
marrows of governance. It is worth
noting that immoral acquisition of wealth
destroys
the
energy
of
the
people
believing in honesty, and history records
with agony how they have suffered. The
only redeeming fact is that collective
sensibility respects such suffering as it is
in
consonance
with
constitutional
morality."

The
observation
was
on
intolerance to any kind of corruption
bereft of its degree.

14. In Asian Resurfacing of Road
Agency Private Limited v. Central
Bureau of Investigation : (2018) 16 SCC
299, the Apex Court observed that the
cancer of corruption has, as we all know,
eaten into the vital organs of the State.
Cancer is a dreaded disease which, if not
nipped in the bud in time, causes death.

15. In the case of Jai Prakash
Singh v. State of Bihar, (2012) 4 SCC
379, (though the judgement was partly
overruled
in
the
case
of
Sushila
Aggarwal Vs. State (NCT of Delhi :
(2020) 5 SCC 1 but on a different count)
the Apex Court has held that anticipatory
bail being an extra-ordinary privilege
should be granted only in exceptional
cases. The judicial discretion conferred
upon the Court has to be properly
exercised after proper application of mind
to decide whether it is a fit case for grant
of anticipatory bail. It is further held that
"parameters for grant of anticipatory bail
in a serious offence are required to be
satisfied and further while granting such
relief, the Court must record the reasons
therefor. Anticipatory bail can be granted
only in exceptional circumstances where
the Court is prima facie of the view that
the applicant has falsely been enroped in
the crime and would not misuse his
liberty."

16. In the case of P. Chidambaram v.
Directorate of Enforcement : (2019) 9
SCC 24, the Apex Court has held that the
power under Section 438 Cr.P.C. is an
extraordinary power and the same was to
3 All. Hemant Kumar @ Hemant Kumar Saraswat Vs. State of U.P. & Anr.
77
be exercised sparingly. It is also held that
privilege of the pre-arrest bail should be
granted only in exceptional cases.

17. The importance and relevance of
custodial interrogation of the accused in a
case and also that the Courts should be
slow in grant of bail / prearrest bail has
been elaborated by the Apex Court in P.
Chidambaram's case (supra) which is as
follows:

"74. Ordinarily, arrest is a part of
the process of the investigation intended to
secure several purposes. There may be
circumstances in which the accused may
provide information leading to discovery of
material facts and relevant information.
Grant of anticipatory bail may hamper the
investigation. Pre-arrest bail is to strike a
balance between the individual's right to
personal freedom and the right of the
investigating agency to interrogate the
accused as to the material so far collected
and to collect more information which may
lead to recovery of relevant information. In
State v. Anil Sharma [State v. Anil Sharma,
(1997) 7 SCC 187 : 1997 SCC (Cri) 1039] ,
the Supreme Court held as under : (SCC p.
189, para 6)

"6.
We
find
force
in
the
submission
of
CBI
that
custodial
interrogation
is
qualitatively
more
elicitation-oriented than questioning a
suspect who is well-ensconced with a
favourable order under Section 438 of the
Code. In a case like this, effective
interrogation of a suspected person is of
tremendous advantage in disinterring many
useful informations and also materials
which would have been concealed. Success
in such interrogation would elude if the
suspected person knows that he is well
protected and insulated by a pre-arrest bail
order during the time he is interrogated.
Very often interrogation in such a condition
would reduce to a mere ritual. The
argument that the custodial interrogation is
fraught with the danger of the person being
subjected to third-degree methods need not
be countenanced, for, such an argument
can be advanced by all accused in all
criminal cases. The Court has to presume
that responsible police officers would
conduct
themselves
in
a
responsible
manner and that those entrusted with the
task of disinterring offences would not
conduct themselves as offenders."

75. Observing that the arrest is a
part of the investigation intended to secure
several purposes, in Adri Dharan Das v.
State of W.B. [Adri Dharan Das v. State of
W.B., (2005) 4 SCC 303 : 2005 SCC (Cri)
933] , it was held as under : (SCC p. 313,
para 19)

"19. Ordinarily, arrest is a part of
the process of investigation intended to
secure several purposes. The accused may
have to be questioned in detail regarding
various facets of motive, preparation,
commission and aftermath of the crime and
the connection of other persons, if any, in
the crime. There may be circumstances in
which the accused may provide information
leading to discovery of material facts. It
may be necessary to curtail his freedom in
order to enable the investigation to proceed
without hindrance and to protect witnesses
and persons connected with the victim of
the crime, to prevent his disappearance, to
maintain law and order in the locality. For
these or other reasons, arrest may become
an inevitable part of the process of
investigation. The legality of the proposed
arrest
cannot be
gone
into
in
an
application under Section 438 of the Code.
The role of the investigator is well defined
and the jurisdictional scope of interference
by the court in the process of investigation
is limited. The court ordinarily will not
78 INDIAN LAW REPORTS ALLAHABAD SERIES
interfere with the investigation of a crime
or with the arrest of the accused in a
cognizable offence. An interim order
restraining arrest, if passed while dealing
with an application under Section 438 of
the Code will amount to interference in the
investigation, which cannot, at any rate, be
done under Section 438 of the Code."

76. In Siddharam Satlingappa
Mhetre v. State of Maharashtra : (2011) 1
SCC 694, the Supreme Court laid down the
factors and parameters to be considered
while dealing with anticipatory bail. It was
held that the nature and the gravity of the
accusation and the exact role of the
accused must be properly comprehended
before arrest is made and that the court
must evaluate the available material
against the accused very carefully. It was
also held that the court should also
consider whether the accusations have
been made only with the object of injuring
or humiliating the applicant by arresting
him or her.

77. After referring to Siddharam
Satlingappa
Mhetre
judgment
and
observing that anticipatory bail can be
granted only in exceptional circumstances,
in Jai Prakash Singh v. State of Bihar, the
Supreme Court held as under : (SCC p.386,
para 19)

"19. Parameters for grant of
anticipatory bail in a serious offence are
required to be satisfied and further while
granting such relief, the court must record
the reasons therefor. Anticipatory bail can
be
granted
only
in
exceptional
circumstances where the court is prima
facie of the view that the applicant has
falsely been enroped in the crime and
would not misuse his liberty. (See D.K.
Ganesh Babu v. P.T. Manokaran : (2007) 4
SCC 434, State of Maharashtra v. Modh.
Sajid Husain Mohd. S. Husain : (2008) 1
SCC 213 and Union of India v. Padam
Narain Aggarwal : (2008) 13 SCC 305.)

18. In the latest case of Supreme
Bhiwandi Wada Manor Infrastructure (P)
Ltd. v. State of Maharashtra : (2021) 8
SCC
753,
the
Apex
Court
while
considering the powers of High Court in
grant of anticipatory bail has observed as
follows:-

"25. The High Court, in granting
anticipatory bail under Section 438 CrPC
in the first two appeals and following that
order in disposing of the challenge to the
order of the Sessions Judge in the
companion appeals, has evidently lost sight
of the nature and gravity of the alleged
offence. This Court in Sushila Aggarwal v.
State (NCT of Delhi) [Sushila Aggarwal
v.State (NCT of Delhi), (2020) 5 SCC 1 :
(2020) 2 SCC (Cri) 721] has enunciated
the considerations that must govern the
grant of anticipatory bail in the following
terms : (SCC p. 110, para 92)

"92.3.... While considering an
application (for grant of anticipatory bail)
the court has to consider the nature of the
offence, the role of the person, the
likelihood of his influencing the course of
investigation, or tampering with evidence
(including
intimidating
witnesses),
likelihood of fleeing justice (such as
leaving the country), etc. ...

92.4.
Courts
ought
to
be
generally guided by considerations such as
the nature and gravity of the offences, the
role attributed to the applicant, and the
facts of the case, while considering whether
to grant anticipatory bail, or refuse it.
Whether to grant or not is a matter of
discretion; equally whether and if so, what
kind of special conditions are to be imposed
(or not imposed) are dependent on facts of
3 All. M/s V.K. Traders Vs. U.O.I.. & Ors.
79
the case, and subject to the discretion of the
court."

19. Anticipatory bail being an extraordinary remedy, should be resorted to only
in a special case. The case prima facie
indicates involvement of the applicant in
the offence-in-question as he was the
beneficiary by making use of the forged
mark-sheet/degree. The applicant has not
established any special circumstance. No
reason is found to falsely implicate the
present applicant.

20. It is settled principle of law that
departmental and criminal proceedings are
distinct and have different standards of
proof. The two proceedings, criminal and
departmental, are entirely different. They
operate in different fields and have
different objectives. The issue drawing
attention of the Apex Court is with regards
to the termination of the applicant. The
present First Information Report is with
regards to the filing of the forged document
being the B.Ed. mark-sheet/degree on the
basis of which employment was sought and
was given. The matter of termination and
lodging of the First Information Report /
the investigation / trial if any, are altogether
two different proceedings and are not in
any manner linked with each other.

21. By the act of the applicant of
seeking appointment on the basis of a
forged mark-sheet/degree, one deserving
candidate has lost his seat and chance of
appointment and it may be a life long loss
for many reasons like crossing the bracket
of prescribed age and many other factors.

22. After having heard learned
counsels for the parties and perusing the
records, it is evident that the first
anticipatory
bail
application
of
the
applicant was rejected on 15.06.2021 on
merits. In so far as, the orders of the other
persons are concerned who have been
granted
anticipatory
bail/interim
anticipatory bail, the same are not binding
on this Court. While rejecting the first
anticipatory bail application, the Court was
of the opinion that during investigation
even at times custodial interrogation may
be necessary to reach the roots of the crime,
the same cannot be overlooked. Therefore,
looking into the gravity of the offence,
nature of offence and the legal position
enumerated above, this Court is of the view
that the anticipatory bail application has no
merit and is liable to be rejected.

23. Accordingly, the anticipatory bail
application is rejected.
----------
(2022)03ILR A79
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.03.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 19059 of 2021

M/s V.K. Traders ...Applicant
Versus
U.O.I. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Atiqur Rahman Siddiqui, Ms. Vishakha
Pande, Sri Rakes Pande

Counsel for the Opposite Parties:
Sri Krishna Agarawal, Sri Dileep Chandra
Mathur, Sri Suresh Kumar Maurya

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 438 - Central
Goods and Service Tax Act, 2017-Section
132(1)(a)(b)(c)(d)(i)-application-seeking