Allahabad High Court

Shakeel Ahmad vs State Of U.P. on 1 August, 2024

Author: Rajeev Misra

Bench: Rajeev Misra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:123975
 
Court No. - 64
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4264 of 2024
 

 
Applicant :- Shakeel Ahmad
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Vidhya Shanker Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Vidhya Shanker Tiwari, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for anticipatory bail has been filed by applicant-Shakeel Ahmad seeking his enlargement on anticipatory bail in Case Crime No. 229 of 2013 under Section 13 (1) (E), 13 (2) of Prevention of Corruption Act 1988, Police Station- Kotwali Siddhartha Nagar,, District-Siddartha Nagar, during the pendency of trial i.e. Sessions Case No. 1166 of 2022 (State Vs. Shakeel Ahmad) under Section 13 (1) (E) readwith Section 13 (2) of Prevention of Corruption Act 1988, Police Station- Kotwali Siddhartha Nagar,, District-Siddartha Nagar.

4. Record shows that an F.I.R. dated 12.03.2013 was lodged by first informant-Surendra Pandey, Sub-Inspector, Anti Corruption Organisation U.P., Gorakhpur and was registered as Case Crime No. Case Crime No. 229 of 2013 under Section 13 (1) (E) read with Section 13 (2) of Prevention of Corruption Act 1988, Police Station- Kotwali Siddhartha Nagar,, District-Siddartha Nagar,. In the aforesaid F.I.R. applicant Shakeel Ahmad has been nominated as solitary named accused.

5. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. Upon completion of investigation, he ultimately submitted the police report in terms of Section 173 (2) Cr.P.C i.e. charge sheet dated 20.01.2022 against applicant whereby applicant has been charge-sheeted under Section 13 (1) (E) read with Section 13 (2) of Prevention of Corruption Act 1988.

6. After submission of aforementioned police report, cognizance was taken upon same by the court concerned in exercise of jurisdiction under Section 190 (1) (b) Cr.P.C. and simultaneously applicant was summoned by court concerned vide Cognizance Taking Order/Summoning Order dated 10.05.2022 passed in Session Case No. 1166 of 2022 (State Vs. Shakeel Ahmad) under Section 13 (1) (E) readwith Section 13 (2) of Prevention of Corruption Act 1988, Police Station- Kotwali Siddhartha Nagar,, District-Siddartha Nagar.

7. Feeling aggrieved by the proceedings of above mentioned criminal case, applicant approached this Court by means of Criminal Misc. Application U/S 482 Cr.P.C. No. 26722 of 2023 (Shakeel Ahmad Vs. State of U.P. and another). The same came to be dismissed by this Court vide order dated 09.08.2023. For ready reference, the same is reproduced herein under:-

"1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. The present application under Section 482 Cr.P.C. has been filed for quashing of the entire proceedings of Session Case No. 1166 of 2022 (State Vs. Shakeel Ahmad), including charge-sheet dated 20.01.2022 and cognizance order order dated 10.05.2022, arising out of Case Crime No. 229/2013, under Section 13(1)(E)/13(2) of Prevention of Corruption Act, Police Station-Siddhartha Nagar, District-Siddhartha Nagar, pending in the Court of learned Additional District Judge/Special Judge (P.C. Act), Court No. 5, Gorakhpur.

3. Learned counsel for the applicant submits that applicant is innocent and he has been falsely implicated in this case and that no prima facie case is made out against the applicant. The applicant was working as Assistant Accountant in Rural Development Department. In the first information report it was alleged that in check period w.e.f. 21.12.1990 to 31.07.2008, the applicant has earned total income of Rs. 15,72,575/-, whereas, during that check period, he has incurred an amount of Rs. 27,39,271/- and thus, an amount of Rs. 11,66,886/- was shown disproportionate to his source of income. Learned counsel submitted that the income of applicant has not been considered by the investigating officer in correct perspective. Before joining the government service, the applicant was doing business of hand-loom and after he has joined the government service, his wife was carrying out the said business. The applicant was also having rental income as well as he was having agricultural land, where, farming was being done. Referring to application sent by the applicant to the Additional Director General of Police, Anti-corruption, Lucknow, it was submitted that in view of several sources of income of the applicant, there was no case of disproportionate funds. The investigating officer has not taken into consideration the source of income of applicant, which was being done from rent, agriculture and business. Further, alleged inquiry regarding assets of the applicant, was initiated at the complaint of one Akeel Ahmad but he has filed an affidavit, stating that he did not file any such complaint.

4. Referring to first information report and facts of the matter, it was submitted that all the sources of income of the applicant has not been considered in correct perspective and that no prima facie case is made out against the applicant.

5. Learned A.G.A. has opposed the application and submitted that while working as Assistant Accountant in Rural Development Department, the applicant has amassed property/earned income of Rs. 15,72,575/- during check period, whereas, he has incurred an amount of Rs. 27,39,271/- during that period and thus, the funds possessed by the applicant as public servant, were disproportionate to the known sources of his income.

6. I have considered rival submissions and perused the record.

7. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases.

8. In the case of R. Kalyani v. Janak C. Mehta and Others reported in 2009 (1) SCC 516, the Hon'ble Apex Court has held as under:

(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.

(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."

9. In the instant matter, during investigation it has been found that the applicant while working as Assistant Accountant in Rural Development Department, he has acquired / amassed assets and properties disproportionate to known sources of his income. As per prosecution version, during check period, the applicant earned total income of Rs. 15,72,575/-from his known and legal sources, whereas, applicant has incurred /amassed assets worth Rs. 27,39,271/- and thus, he possessed assets disproportionate to his legal and known sources of income, in the tune of Rs.11,66,886/-. The perusal of record shows that the conclusions of investigating officer regarding alleged disproportionate assets of applicant-accused are based on documentary evidence. The investigating officer has made detailed discussion about the income earned by the applicant-accused and the assets acquired / amassed by the applicant-accused. The contentions raised by the learned counsel for the applicant or documents, which have been relied upon by the respondents, cannot form the basis of quashing the proceedings. The value and weight to be ascribed to the documents is a matter of trial. The import of Section 13(1)(e) of the Prevention of Corruption Act, 1988 is that it is for the prosecution to establish that the accused was in possession of properties disproportionate to his known sources of income but the term "known sources of income" would mean the sources known to the prosecution and not the sources known to the accused and within the knowledge of the accused. The onus on the accused is to account satisfactorily for the money/assets in his hands. This burden is on the accused, as the said facts are within his special knowledge. The prosecution can rely upon the information furnished by the accused to the authorities under law, rules and orders for the time being applicable to a public servant. The undeclared alleged sources are by their very nature expected to be known to the accused only and are within his special knowledge. In this connection a reference may be made case of State v. R. Soundirarasu, 2022 SCC OnLine SC 1150, decided on 05.09.2022. In the instant matter, in view of material collected during investigation, it can not be said that no prima facie case is made out the applicant-accused.

10. As noted in the case of State of Haryana vs. Bhajan Lal (supra), power of quashing of FIR or proceedings should be exercised sparingly and with circumspection and that too in the rarest of rare cases. In case of Rupan Deol Bajaj v. K.P.S. Gill; reported in (1995) SCC (Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi; reported in (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors; reported in 2000 SCC (Cri) 615, the Apex Court clearly held that if a prima facie case is made out disclosing the ingredients of the offence, Court should not quash the complaint. However, it was held that if the allegations do not constitute any offence as alleged and appear to be patently absurd and improbable, Court should not hesitate to quash the complaint. The note of caution was reiterated that while considering such petitions the Courts should be very circumspect, conscious and careful. Thus, there is no controversy about the legal proposition that in case a prima facie case is made out, the FIR or the proceedings in consequence thereof cannot be quashed. Here it would also be pertinent to mention that questions of fact cannot be examined by this Court in proceedings under Section 482 Cr.P.C.

11. The submissions raised by learned counsel for the petitioners call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court in case a charge sheet is submitted in this case.

12. In view of aforesaid, it is apparent that the instant application under Section 482 CrPC lacks merit, and thus, liable to be dismissed. However, the applicant would be at liberty to move an application for discharge at appropriate stage in accordance with law.

13. With aforesaid observations, the application under Section 482 CrPC, is dismissed.

Order Date :- 9.8.2023 "

8. After aforementioned order dated 09.08.2023 was passed by this Court, applicant approached the court below by filing second application for anticipatory bail No. 1651 of 2024 (Shakeel Ahmad Vs. State of U.P.). The same also came to be rejected by court below vide order dated 05.04.2024. Consequently, applicant has now approached this Court by means of present application for anticipatory bail.

9. Learned counsel for applicant contends that the F.I.R. giving rise to present criminal proceedings was lodged against applicant on 12.03.2013. The police report in terms of Section 173 (2) Cr.P.C. was submitted against applicant on 20.01.2022 i.e. after expiry of a period of more than 8 years and 10 months. Since the police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Since most of the evidence relied upon by the prosecution against applicant is by way of documentary evidence, therefore, in case the applicant is granted the benefit of anticipatory bail then in that eventuality it cannot be said that he shall either terrorize the witnesses or shall hamper the course of trial. To lend legal support to his submission, he has relied upon the judgement of the Supreme Court in Mehdoom Bava Vs. Central Bureau of Investigation, 2023 OnLine SC 299. Upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial.On the above premise, it is thus urged that custodial arrest of applicant is not absolutely necessary for conducting the trial of applicant pending before court below.

10. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Though the police report in terms of Section 173 (2) Cr.P.C. has been submitted against applicant on 20.01.2022, upon which cognizance has also been taken by court below and simultaneously, summoned the applicant, however, no coercive process by way of issuing non-bailable warrant or coercive process under Section 82 Cr.P.C. has been adopted by court below. On the above premise, it is thus urged by the learned counsel for applicant that liberty of applicant is liable to be protected by this Court by granting him the benefit of anticipatory bail.

11. Per contra, the learned A.G.A. has vehemently opposed the present application for anticipatory bail. He submits that since applicant is a named and charge-sheeted accused therefore he does not deserve any indulgence by this Court. It is then contended by the learned A.G.A. that the proceedings of aforementioned criminal case were challenged by applicant by means of Criminal Misc. Application U/S 482 Cr.P.C. No. 26722 of 2023 (Shakeel Ahmad Vs. State of U.P. and another), which was rejected by this Court vide order dated 09.08.2023. Applicant was summoned by court below vide Cognizance Taking Order/Summoning Order dated 10.05.2022. However, after expiry of more than 2 years and two months from the date of cognizance taking order/summoning order, applicant has not yet appeared before court below. As such applicant has failed to honour the summons issued by court below. Referring to the judgement of Apex Court in P. Chidambaram Vs. Directorate of Enforcement, AIR 2019 SC 4198, he submits that exercise of jurisdiction under Section 438 Cr.P.C. should be done in rare cases. No exceptional circumstance has emerged in the case in hand so as to grant anticipatory bail to applicant. Applicant has been avoiding the process of court for the last two years. He therefore does not deserve any indulgence by this Court. As such, this application for anticipatory bail is liable to be rejected.

12. When confronted with above, the learned counsel for applicant could not overcome the same.

13. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record and coupled with the fact that the preliminary objection raised by the learned A.G.A. in opposition to this application for anticipatory bail, as noted herein above, could not be dislodged by the learned counsel for applicant with reference to the record at this stage therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of this application for anticipatory bail, but without making any comment on the merits of the case, this Court does not find any good or sufficient ground so as to enlarge the applicant on anticipatory bail.