Amresh Yadav vs State Of U.P. And Another
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Allahabad High Court

Amresh Yadav vs State Of U.P. And Another on 3 July, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:107543
 
Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12143 of 2023
 

 
Applicant :- Amresh Yadav
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Awadhesh Kumar Mishra,Manoj Kumar,Vimlendu Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Vimlendu Tripathi, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Amresh Yadav, seeking his enlargement on bail in Case Crime No. 1364 of 2020, under Sections 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988, Police Station-Cantt., District-Gorakhpur during the pendency of trial i.e. Special Case No. 441 of 2023 (State Vs. Amresh Yadav), under Sections 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988, Police Station-Cantt., District-Gorakhpur now pending in the Court of Additional District and Sessions Judge/Special Judge (PC Act), Court No.-1, Gorakhpur.

4. Record shows that an FIR dated 04.12.2020 was lodged by first informant Ram Dhari Mishra, Inspector, Ante-Corruption Organization, U.P. and was registered as Case Crime No. 1364 of 2020, under Sections 13(1)(b) and 13(2) of the Prevention of Corruption Act, 1988, Police Station-Cantt., District-Gorakhpur . In the aforesaid FIR, applicant-Amresh Yadav has been nominated as solitary named accused.

5. The gravamen of the allegations made in the FIR is to the effect that for the check period i.e. 01.01.2006 to 31.12.2018, the applicant earned Rs. 52,40,500/- from his known sources of income, whereas, he has made an expenditure of Rs. 1,03,98,388/-. As such, the applicant is alleged to have made an excess expenditure of Rs. 51,57,888/-, which is over and above his known sources of income.

6. Learned counsel for applicant submits that though applicant is a named and charge sheeted accused yet he is liable to be enlarged on bail. Attention of the Court was invited to the chart accompanying the police report dated 21.02.2023 submitted in terms of Section 173(2) Cr.P.C. With reference to above, he submits that the properties, which were purchased/procured by the wife of applicant/father of applicant/brother of applicant/bhabhi of applicant, have also been presumed to be properties of the applicant and on account of above, a false calculation has been made.

7. With further reference to the chart referred to above, the learned counsel for applicant contends that as per the statement accompanying the police report, he submits that Plot No. 65, area 5811.8 sq. feet was purchased by the wife of applicant for a sale consideration of Rs. 50,00,000/-. Out of the said consideration, a sum of Rs. 27,00,000/- was financed by the Bank, whereas the balance of Rs. 23,00,000/- was paid in cash by the wife of applicant, who herself is an income tax assessee from the year, 2011-12. The aforesaid purchase was made on 24.12.2019 i.e. subsequent to she becoming an income tax assessee. It is then submitted that automobiles i.e. Creta Car and Ecco Sport were also purchased by the wife of applicant in the year, 2014-18 respectively, which fact has also been mentioned in her income tax return. The said purchase was made on the basis of loan taken from the bank (Car Loan).

8. With regard to the sale deed dated 10.06.2008, he submits that that part of the land was initially purchases by the bhabhi and the wife of applicant i.e. Survey Plot No. 218, area 0.618 hectare, which is an agricultural land. The half area of aforementioned Survey Plot Number was purchased by the wife and bhabhi of the applicant, vide registered Sale Deed dated 10.06.2008. The said purchase was made on payment of 2,46,000/-, which was paid in cash. Reference was also made to the chart appended along with supplementary affidavit dated 14.03.2023 and with reference to above, the learned counsel for applicant contends that the procurement of the aforesaid immovable/movable property stands duly explained by the applicant. It is thus urged that since the purchase has not been made by the applicant (Benami) inasmuch as, there is no allegation to that effect in the charge sheet, therefore, no offence under Section 13(1)(b) and 13(2) of Prevention of Corruption act, 1988 can be said to made out against applicant. It is further submitted that the purchase made by the wife of applicant were duly disclosed in her income tax return, upon which, assessment orders under Section 143 of Indian Income Tax has been passed. Once the assessment orders have been passed, therefore, the veracity of the income tax return/income so submitted/disclosed by the assessee i.e. the wife of applicant cannot be examined in collateral proceedings.

9. According to Mr. Vimlendu Tripathi, the learned counsel for applicant, the prosecution of a public servant under the provisions of Prevention of Corruption Act has to be tried a common man and the status of the public servant is not required to be looked into while considering the criminality/bail of such an accused. Reference in this regard is made to the judgment of Supreme Court in State of Chhattisgarh Vs. Gurjinder Pal Singh, 2022 SCC OnLine SC 2270 and Sanjay Chandra Vs. CBI, (2012) 1 SCC 40.

10. It is then contended that the applicant is being wrongly prosecuted under the provisions of Prevention of Corruption Act inasmuch as, the property purchased by the wife of applicant has been included in the list of properties belonging to applicant, which is illegal.

11. It is further submitted by the learned counsel for applicant that during course of investigation, the applicant had submitted the Income Tax Returns of his wife as well as the documents pertaining to the purchase of the disputed properties before the Investigating Officer but the same were, neither accepted nor made part of the case diary, by him. A categorical averment to that effect has been made in paragraph 43 of the affidavit filed in support of this application for bail. With reference to above, it is thus urged by the learned counsel for applicant that the procedure adopted by the Investigating Officer is unsustainable in law, in view of the law laid down by Apex Court in State of Andhra Pradesh Vs. J. Satyanarayana, (2017) 6 SCC 628. To buttress his submission, he has further referred to the judgments of Supreme Court in DSP, Chennai Vs. K. Inbasagaran, (2006) 1 SCC 420, Kedari Lal Vs. State of Madhya Pradesh and Others, (2015) 14 SCC 505 and Krishnanand Agnihotri Vs. The State of Madhya Pradesh, (1977) 1 SCC 816.

12. It is lastly submitted by the learned counsel for applicant that the police report in terms of Section 173(2) Cr.P.C. has already been submitted, 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 documentary evidence, therefore, in case, the applicant is enlarged on bail then in that eventuality, it cannot be said that he shall either hamper the course of trial or terrorize the witnesses or tamper with the prosecution evidence.

13. Even otherwise, applicant is a government servant and in case, he is enlarged on bail, there is no likelihood of his fleeing away from the trial. Applicant has one criminal history but he has already been acquitted by the Court concerned in the said criminal case. Applicant is in jail since 17.02.2023. As such, he has undergone more than 1 year and 4 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. In support of above, he has referred to the judgment of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373. On the above conspectus, it is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

14. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that as per the charge sheet, the applicant is guilty of amassing proportionate assets, which are beyond his known sources of income. As such, applicant is guilty of committing an offence, under Sections 13(1)(b) and 13(2) of Prevention of Corruption Act. Admittedly, applicant is a government servant and he is working as Head Constable in U.P. Police. The income tax return submitted by the wife of applicant are doubtful and therefore, the applicant does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

15. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the facts and circumstances of the case as noted herein above, the explained criminal history of the applicant, the period of incarceration undergone, the police report 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, most of the evidence relied upon by the prosecution against applicant is documentary evidence, therefore, in case, the applicant is enlarged on bail, he shall neither hamper the course of trial, terrorize the witnesses nor tamper with the evidence, irrespective of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal (Supra) and State of Chhattisgarh Vs. Gurjinder Pal Singh (Supra), therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

16. Accordingly, the bail application is allowed.

17. Let the applicant-Amresh Yadav, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

18. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 3.7.2024

Vinay