Bhanu Pratap Singh vs State Of U.P.
2023 Latest Caselaw 27377 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:192847
 
Reserved on 27.09.2023
 
Delivered on 06.10.2023
 
Court No. - 78
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8866 of 2023
 
Applicant :- Bhanu Pratap Singh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajan Srivastava,Pooja Srivastava,Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Rajan Srivastava and Ms Pooja Srivastava, learned counsel for the applicant and learned A.G.A. for the State.

2. The present application has been moved seeking anticipatory bail in Case Crime no. 213 of 2014, under Sections 409, 419, 420, 467, 468, 471, 120-B IPC and Section 13(2) Prevention of Corruption Act, P.S. Chetganj (E.O.W.), District Varanasi, with the prayer that in the event of arrest, applicant may be released on bail.

3. It has been argued by the learned Senior counsel for the applicant that applicant is innocent and he has an apprehension that he may be arrested in the above-mentioned case, whereas, there is no credible evidence against him. The applicant has no criminal antecedents. There is long and inordinate delay in lodging of the first information report and the allegations levelled against the applicant are wholly false. It was submitted that the applicant had been posted as Finance Officer of Sampurnanand University from 31.07.2009 to 30.06.10. As soon as the applicant took charge, he came to know that some embezzlement of funds has taken place and inquiry revealed that the alleged embezzlement took place during the posting of late Harishchandra, the then Director publication. As per provisions of the Sampurananand University Act, the recovery was made from the superannuation funds of Harishchand Tripathi. The applicant has replied the questionnaire of investigating agency. The applicant has written a letter to the Vice Chancellor for physical verification of books and stocks and he has also written another letter for inquiry from independent agency. It was submitted that all these facts indicate that applicant has no involvement in alleged misuse of public funds.

4. Learned Senior Advocate further submitted that during inquiry, it was found that out of total payment of Rs 957000/, the payment of Rs 568,000/ was wrongly made. During tenure of applicant, only an amount of Rs 40816/ was made to daily news paper Amar Ujala for advertisement and regarding that payment no fault was found. In departmental inquiry only censure entry was made against applicant. The sanction for prosecution of applicant has not been granted in accordance with law and the same has already been challenged by filing a writ petition.

5. Replying to the averments of the counter-affidavit, it was submitted that it was duty and responsibility of the Director of publication departmental headed by late Harishchandra Tripathi, who was authorised to use the grant and select printing agency. There is no evidence that the alleged payments attributed to the applicant, were made by the applicant. There are huge discrepancies in the amount shown in the counter affidavit. Further, the counter affidavit does not specify that any illegal payment was made by the applicant. The payments made by the applicant were after due approval from the Vice Chancellor. Counter affidavit clearly states that payment of Rs 1581180/ was made on the endorsement of late Harishchandra Tripathi. Referring to the departmental inquiry, it was submitted by the learned Senior Advocate that in view of law laid down in case of Ashoo Surendranath Tewari V. Dy. Superintendent of Police MANU/SC/0777/2020, no case for criminal prosecution of applicant is made out. Co-accused Diwakar Tripathi, Ravi Prakash Pandya, Satish Kumar Patel and Ramesh Kumar Patel have already been granted bail, however, anticipatory bail of some of the co-accused persons have been rejected. The non-bailable warrants were issued during pendency of the anticipatory bail application before the Sessions court and this court. It was submitted that applicant no criminal history and he undertakes to co-operate during investigation and trial and he would appear as and when required by the investigating agency or Court. It has been stated that in case, the applicant is granted anticipatory bail, he shall not misuse the liberty of bail.

6. Learned A.G.A. has opposed the application for anticipatory bail and argued that at the relevant time, the applicant was working as Finance Officer in Sampurnanand Sanskrit University, Varanasi. The said university was provided a grant of Rs. 10,20,22,000/- for publication of rare manuscripts and scriptures and out of that grant, payment of Rs. 5,68,23,642/- was made to various printing concerns / publishers and book binders without getting any printing/publication or binding work and that applicant was also involved in conspiracy of misappropriation of said funds. The applicant is named in the first information report.

7. Learned AGA submitted that applicant has worked as Finance officer of the university from 31.07.2009 to 30.06.2010 and he has made payment of Rs 1620,976/ to various printing concerns. It was stated that the applicant, along with co-accused persons, has embezzled an amount of Rs 1620,976/ from the said grant. In the investigation, it was found that applicant and co-accused were involved in the embezzlement of public funds provided for printing and publication of rare manuscripts. The applicant is not co-operating during investigation and thus, non-bailable warrants have already been issued against the applicant. It was submitted that role of co-accused persons, who have been granted regular bail, is different from the role of applicant and thus, applicant cannot claim parity with those co-accused persons. Anticipatory bail applications of similarly placed co-accused persons have already been rejected. Referring to facts of the matter, it was submitted that there are serious allegations against the applicant and huge public funds are involved in the matter.

8. In the instant matter, the case of prosecution is that from financial year 2000-2001 to 2009-2010, the Government has provided an aid/grant of Rs. 10,20,22,000/- to Sampurnanand Sanskrit University, Varanasi for printing/publication and binding work of rare manuscript and scriptures but out of that amount, payment of Rs. 5,68,23,642/- was made to various printing concerns/publishers and book binders without any printing/publishing or binding work and the said funds were embezzled. As per prosecution, the applicant has remained posted as Finance officer of the university from 31.07.2009 to 30.06.2010 and he was involved in illegal payment of Rs 1620,976/ to various printing concerns and said funds were embezzled by the applicant and co-accused persons.

9. In case of Ashoo Surendranath Tewari V Dy. Superintendent of Police (supra), referred by the learned counsel is concerned, the Hon'ble Apex Court held as under:

"7, A number of judgments have held that the standard of proof in a departmental proceeding, being based on preponderance of probability is somewhat lower than the standard of proof in a criminal proceeding where the case has to be proved beyond reasonable doubt. In P.S. Rajya vs. State of Bihar, (1996) 9 SCC 1, the question before the Court was posed as follows:-

"3. The short question that arises for our consideration in this appeal is whether the respondent is justified in pursuing the prosecution against the appellant under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission." This Court then went on to state:

"17. At the outset we may point out that the learned counsel for the respondent could not but accept the position that the standard of proof required to establish the guilt in a criminal case is far higher than the standard of proof required to establish the guilt in the departmental proceedings. He also accepted that in the present case, the charge in the departmental proceedings and in the criminal proceedings is one and the same. He did not dispute the findings rendered in the departmental proceedings and the ultimate result of it." This being the case, the Court then held:

"23. Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27-3-1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs." In Radheshyam Kejriwal vs. State of West Bengal and Another, (2011) 3 SCC 581, this Court held as follows:-

"26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to prove its case in the adjudication proceedings and the appellant has been exonerated on the same allegation. The appellant is facing trial in the criminal case. Therefore, in our opinion, the determination of facts in the adjudication proceedings cannot be said to be irrelevant in the criminal case. In B.N. Kashyap [AIR 1945 Lah 23] the Full Bench had not considered the effect of a finding of fact in a civil case over the criminal cases and that will be evident from the following passage of the said judgment: (AIR p. 27) "... I must, however, say that in answering the question, I have only referred to civil cases where the actions are in personam and not those where the proceedings or actions are in rem. Whether a finding of fact arrived at in such proceedings or actions would be relevant in criminal cases, it is unnecessary for me to decide in this case. When that question arises for determination, the provisions of Section 41 of the Evidence Act, will have to be carefully examined." xxx xxx xxx

29. We do not have the slightest hesitation in accepting the broad submission of Mr Malhotra that the finding in an adjudication proceeding is not binding in the proceeding for criminal prosecution. A person held liable to pay penalty in adjudication proceedings cannot necessarily be held guilty in a criminal trial. Adjudication proceedings are decided on the basis of preponderance of evidence of a little higher degree whereas in a criminal case the entire burden to prove beyond all reasonable doubt lies on the prosecution.

xxx xxx xxx

31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecution on the same set of facts can be allowed or not is the precise question which falls for determination in this case." After referring to various judgments, this Court then culled out the ratio of those decisions in paragraph 38 as follows:-

"38. The ratio which can be culled out from these decisions can broadly be stated as follows:

(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;

(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;

(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;

(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;

(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;

(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and

(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases." It finally concluded:

"39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court." From our point of view, para 38(vii) is important and if the High Court had bothered to apply this parameter, then on a reading of the CVC report on the same facts, the appellant should have been exonerated.''

10. Thus, it may be seen that in appropriate cases adjudication proceedings and criminal prosecution can be launched simultaneously and the decision in adjudication proceedings is not necessary before initiating criminal prosecution. Adjudication proceedings and criminal proceedings are independent in nature to each other and the finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution. The Court has held that the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. In the instant matter there is nothing to show that applicant has been exonerated in adjudicating proceedings or that the case of the applicant fulfils the yardstick laid down in said case. It is the case of the applicant that he has been awarded censure entry in departmental proceedings. Thus, the above referred case hardly provides any help to the applicant. In the instant matter there are serious allegations of embezzlement of public funds. Further, as per the prosecution, the applicant is not co-operating during investigation and thus, non-bailable warrants have already been issued against the applicant. Question of recovery of amount is also involved and for that purpose custodial interrogation may be required.

11. Considering the submissions of learned counsel for the parties, nature of accusations levelled against the applicant, the quantum of public funds involved in the matter and all attending facts of the case, no case for grant anticipatory bail to the applicant is made out. Hence, the anticipatory bail application of applicant Bhanu Pratap Singh is hereby rejected.

Order Date :- 6.10.2023

Anand