Savita Pathak vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 8317 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 16
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2115 of 2023
 

 
Applicant :- Savita Pathak
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Civil Sectt. Lko.
 
Counsel for Applicant :- Praveen Kumar Shukla,Pradeep Kumar Rai
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Subhash Vidyarthi J.
 
    1.

Heard Sri Pradeep Kumar Rai, the learned counsel for the applicant, and Sri Jayant Singh Tomar, the learned Addl. Government Advocate-I for the State.

2. By means of the instant application, the applicant Savita Pathak W/o Yagya Dutt Pathak seeks bail in Case Crime No. 163 of 2020, under Sections 506, 386, 388, 419, 420, 467, 468, 471, 120-B, I.P.C., P.S. Gomti Nagar Extension (Vistar), District Lucknow.

3. The aforesaid case has been registered on the basis of an F.I.R. lodged on 17.09.2020 against (i) Gayatri Prasad Prajapati, Former Minister, (ii) Anil Kumar Prajapati S/o Gayatri Prasad Prajapati, and (iii) Savita Pathak - the applicant and (iv) an unknown person, stating that the informant was a Director in a company of co-accused Gayatri Prasad Prajapati; that the applicant had lodged an F.I.R. bearing Case Crime No. 29 of 2017 alleging rape committed by the co-accused Gayatri Prasad Prajapati, and that because of opposition of the applicant, the bail granted to Gayatri Prasad Prajapati by the trial court was cancelled by the High Court. To save himself from the aforesaid case, Gayatri Prasad Prajapati, through his son- co-accused Anil Kumar Prajapati, entered into a settlement with the applicant and he asked the informant to act as per his instructions. Co-accused Anil Kumar Prajapati had handed over a sale-deed dated 29.02.2016 of a property, which is currently worth Rs. 2.5 crores and two cheques for Rs. 2 crores each and on instructions of co-accused Anil Kumar Prajapati, the informant had got executed two sale-deeds on 19.07.2018 and 01.08.2018 in favour of the applicant in respect of properties worth Rs.45 lacs and Rs. 48 lacs.

4. The F.I.R. further states that after execution of the two sale-deeds, the applicant made a further demand of more properties, whereupon the co-accused persons Gayatri Prasad Prajapati and Anil Kumar Prajapati asked the informant to transfer a land owned by the informant and his wife, in favour of the applicant and when the informant declined, they threatened him. Under fear, the informant executed a sale-deed in favour of the applicant on 04.08.2018. Thereafter, Gayatri Prasad Prajapati directed the informant to sell a property that had been purchased by him Benami and to hand over the sale-consideration to the applicant, because transferring excessive properties in favour of the applicant would have raised doubts. The informant has further stated that he arranged the money and handed it over to the applicant. After taking money and properties from the former Minister, the applicant turned hostile in the rape case and she started speaking in favour of the Minister. The informant has also alleged that the applicant had threatened to get him entangled in the rape case, in which her statement under section 164 Cr.P.C. was yet to be recorded. 

5. Regarding the co-accused Gayatri Prasad Prajapati it is alleged in the F.I.R. that he removed the informant from the post of Director, without paying his salary and that he forcibly made the informant sign several cheques. He further threatened the informant not to present the two cheques that had been handed over to him by the Minister's son. 

6. A copy of the sale-deed dated 04.08.2018 executed in favour of the applicant has been annexed with the affidavit, which mentions the market value to be Rs. 26,97,769/- and the sale-consideration to be Rs. 25 lacs and the sale-consideration is said to have been paid through two cheques for Rs. 13 lacs and Rs. 12 lacs each. Upon a specific query made by the Court as to whether the amount of sale consideration was actually paid to the seller, Sri P. K. Rai, learned counsel for the applicant stated that the seller did not present the cheques to his Bank. Thus, it is clear that the property was transferred to the applicant without actual payment of any sale-consideration.

7. Sri Rai has submitted that subsequently on 05.12.2019 Regular Suit No. 3188 of 2019 has been filed in the Court of Civil Judge (Jr. Div.), Hawali, Lucknow, for cancellation of the sale-deed dated 04.08.2018.

8. A copy of the statement of the informant recorded on 03.09.2020 under section 164, Cr.P.C. in connection with Case Crime No. 104 of 2019 under sections 376, 354, 328, 420, 342, 506, I.P.C., P. S. Gautampalli, Lucknow, has been annexed with the affidavit, which indicates that the applicant had stated that she had been elected as a Corporator in Nagar Palika Chitrakoot in the year 2012 and in the year 2017 she had contested elections for the post of Chairman. The applicant's husband had left her about 14 years ago; that in the year 2015 she developed friendship with one Ram Singh and Ram Singh made physical relations with her forcibly; that although she did not want to marry Ram Singh, Ram Singh applied Sindur to her. She implicated one Ashish Shukla also as a person who too had made physical relations with her. She further alleged that Ram Singh had committed a misdeed with her daughter also. The applicant stated that in Case No. 29 of 2017 she had made a statement against Ashish Shukla only and Ram Singh used to pressurize her and her daughter to implicate Gayatri Prasad Prajapati in that case. Her statement was recorded in POCSO Court, Lucknow, on 11th, 12th and 13th June, 2018. At this stage she stated that Ram Singh, the informant of the present case Brij Bhawan Chaube and one Dinesh Chandra Tripathi, Advocate had entered into a conspiracy and they had removed the applicant's daughter Tanya from her house at Chitrakoot for putting pressure on the applicant.

9. Sri Rai has further submitted that the co-accused Anil Kumar Prajapati has been granted bail by means of an order dated 06.03.2021 passed by the Special Judge, M.P./M.L.A./Addl. Sessions Judge, Court No. 19, Lucknow.

10. In para-13 of the affidavit, the applicant's criminal history of four cases has been disclosed, in all of which the applicant has already been granted bail.

11. The learned counsel for the applicant has submitted that the applicant is a woman and she is languishing in jail for more than 6 months and, therefore, she is entitled to be enlarged on bail.

12. A counter affidavit has been filed by the State opposing the bail-application, annexing therewith the statements of the witnesses recorded during investigation.

13. Sri. Jayant Singh Tomar, the learned Addl. Government Advocate-I has vehemently opposed the bail application. He has submitted that the allegations against the applicant are of a serious nature, the offences alleged carry a maximum punishment for imprisonment upto life and the previous conduct of the applicant also disentitled her to be granted any discretion by this Court. The applicant has a criminal history of three cases. She had filed Case Crime No. 29/2017 alleging commission of rape against her and thereafter she received valuable properties from the accused persons and became hostile. Even after the applicant has become hostile, the co-accused Gayatri Prasad Prajapat, Ashok Tiwari and Ashish Shukla have been convicted for commission of offences in Case Crime No. 29 of 2017 by means of the judgment and order dated 12.11.2021 passed by the M.P./M.L.A. Court/A.D.J. Court No. 19, Lucknow.

14. When after hearing the submissions of learned counsel for the parties, the Court started dictating the order after disclosing its view that the bail application is liable to be rejected, the learned counsel for the applicant sought time for filing a rejoinder affidavit. A copy of the counter affidavit was served upon the learned Counsel for the applicant on 24.02.2023. In case there was a need for filing a rejoinder affidavit, the same ought to have been filed promptly and in any case, before commencement of the arguments. It is not at all appropriate on the part of the learned Counsel for the applicant to have advanced his submissions and have taken a chance of getting a favourable order from the Court and when it appeared that the order would be unfavourable for the applicant, make a prayer for giving an opportunity to file a rejoinder affidavit. Therefore, the prayer made at this stage for giving an opportunity for filing a rejoinder affidavit is declined.

15. I have considered the facts and circumstances of the case and the submissions made by the learned counsel for the parties.

16. In the case of Dataram Singh v. State of U.P., (2018) 3 SCC 22, the Hon'ble Supreme Court has held that: -

"5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India: 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab: (1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King-Emperor: AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson: AIR 1931 All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.

6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory."

(Emphasis supplied)

17. What prima facie appears from the material placed on record before the Court at this stage is that in the year 2017 the applicant had lodged an F.I.R. alleging an offence of rape committed by co-accused Gayatri Prasad Prajapati against her. Two sale deeds were executed in favour of the applicant in favour of two properties, on 19.07.2018, 01.08.2018. Another sale deed was executed in her favour on 04.08.2018 for a sale-consideration of Rs. 25 lacs, which is said to have been paid through cheques, and it is the case of the applicant herself that the cheques were not presented before the Bank for payment of the amount and apparently, property which was worth Rs. 26,97,769/- even as per the circle rate prescribed by the District Magistrate, has been transferred in favour of the applicant without actual payment of any sale-consideration. In Case Crime No. 104 of 2019 under sections 376, 354, 328, 420, 342, 506 I.P.C., P.S. Gautampalli, District Lucknow, the informant was not named as an accused and his name has not been mentioned even in the applicant's statement under section 161 Cr.P.C. His name was included for the first time in the statement recorded under section 164, Cr.P.C. on 03.09.2020.

18. Regarding the submission made by Sri. P. K. Rai, the learned Counsel for the applicant, that the F.I.R. was lodged on 17.09.2020, whereas the statement under Section 164, Cr.P.C. had already been recorded on 03.09.2020 and, therefore, the allegation levelled in the F.I.R. that the applicant was threatening the informant to entangle him by making a statement under section 164, Cr.P.C., is baseless, suffice it to say that the sale deed in favour of the applicant had been executed on 04.08.2018 without actual payment of any sale consideration, which prima facie indicates that the sale deed was executed for some ulterior reason. Moreover, it cannot be lost sight of that numerous sale deeds have been executed in favour of the applicant after she lodged Case Crime No. 29 of 2017.

19. Therefore, although no finding of fact is to be recorded at this stage and that would be done by the Trial Court after examining the evidence, what prima facie appears is that the allegation that the applicant was threatening the persons connected with the aforesaid case and that the sale deeds have been executed in favour for the aforesaid reason and for this reason she became hostile and started speaking in favour of the accused Gayatri Prasad Prajapati, appears to have substance.

20. Regarding the claim for grant of bail on the ground of parity, there were no such allegations against the co-accused Anil Kumar Prajapati, as have been levelled against the applicant and, therefore, her case does not stand on a similar footing and she is not entitled to be released on bail on the ground of parity.

21. The offences alleged to have been committed by the applicant are punishable with imprisonment up to life and it is also relevant that the applicant has a criminal history of three more cases.

22. In view of the aforesaid discussion, this Court is of the view that the present case is not such, as warrants the exercise of discretion of this Court in favour of the applicant by enlarging her on bail.

23. The bail application is accordingly rejected.

(Subhash Vidyarthi, J.)

Order Date :- 22.3.2023

A.Nigam