Sanjay Kumar Tiwary vs The State Of Bihar
2021 Latest Caselaw 4199 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
              CRIMINAL MISCELLANEOUS No.24096 of 2021
     Arising Out of PS. Case No.-38 Year-2020 Thana- ARA RAIL P.S. District- Bhojpur
 ======================================================

Sanjay Kumar Tiwary, aged about 57 Years (Male), son of late Bishwanth Tiwary, resident of village and post- Ram Shahar, P.S.- Barahara, District- Bhojpur.

... ... Petitioner/s

Versus

The State of Bihar ... ... Opposite Party/s ====================================================== Appearance :

 For the Petitioner/s     :        Mr. P K Shahi, Senior Advocate with
                                   Mr. Brisketu Sharan Pandey, Advocate
 For the State            :        Mr. Binod Kumar, APP
 For the Informant        :        Mr. Rajendra Nath Sinha, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 21-08-2021

The matter has been heard via video conferencing.

2. The case has been taken up out of turn on the basis

of motion slip filed by learned counsel for the petitioner on

10.08.2021, which was allowed.

3. Heard Mr. P K Shahi, learned senior counsel along

with Mr. Brisketu Sharan Pandey, learned counsel for the

petitioner; Mr. Binod Kumar, learned Additional Public

Prosecutor (hereinafter referred to as the 'APP') for the State

and Mr. Rajendra Nath Sinha, learned counsel for the informant.

4. The petitioner apprehends arrest in connection with

Ara Rail PS Case No. 38 of 2020 dated 09.10.2020, instituted

under Sections 420, 468, 471, 406 and 120-B of the Indian Patna High Court CR. MISC. No.24096 of 2021 dt.21-08-2021

Penal Code.

5. The allegation against the petitioner is that he had

taken Rs. 11,50,000/- in instalments on the pretext of providing

a job as TC in the Railways to the son of the informant, but he

had provided a fake appointment letter and thereafter when the

informant demanded his money back and also sent legal notice,

no reply was received.

6. Learned counsel for the petitioner submitted that he

is an Assistant Sub Inspector in the Railway Police and has been

falsely implicated. It was submitted that the petitioner has no

control over any appointment under the Railways and, thus,

could not have assured of any such employment. Further, it was

submitted that it is hard to believe that the informant, who

himself is a practicing advocate for almost 22 years would be

party to such illegality knowing fully well that one cannot buy a

job under the State/Railways by giving money as there is

specific provision in law for getting such employment. Thus, it

was submitted that the informant himself is the person, who

offered bribe and if it is accepted for the sake of argument

without admitting the same that such money was transacted, the

person giving the bribe is equally guilty, if not more, as the

person, who accepted such bribe. Further, it was submitted that Patna High Court CR. MISC. No.24096 of 2021 dt.21-08-2021

there is natural presumption that the informant being a legal

practitioner for more than two decades would not be so naive

and gullible so as to expect and believe that somebody would

give him a job without complying the required formalities for

obtaining such job under the Railways, which is directly under

the Central Government. Leaned counsel submitted that not a

single piece of evidence has been brought on record to indicate

the petitioner having been given the money and most

surprisingly, the allegation that there are other complaint cases

filed is also not borne out since the petitioner is not aware of

any case against him till date. It was submitted that one Vikash

Kumar Dubey, whose name has also been mentioned in the FIR

and is said to be a relative of the petitioner, who lives in the

village of the informant, has filed a petition before the

Superintendent of Police, Railway, Patna, in which he has stated

that he along with the informant used to indulge in such illegal

business and some money was also transacted between them.

Thus, it is clear that the petitioner has no role and because he is

in employment of the Railways, to exert undue pressure on him

to help in the informant's illegal activities, he has been

implicated in the present case. Learned counsel submitted that

similar issue came before a coordinate Bench in Cr. Misc. No. Patna High Court CR. MISC. No.24096 of 2021 dt.21-08-2021

9428 of 2006 (Vijay Sharma and another Vs. The State of

Bihar), 2011 (1) PLJR 780 and it has been held that no offence

under Section 406 of the Indian Penal Code can be made out if

the allegation is that for employment in government service,

some money was transacted as the agreement itself was to

commit an offence under the Penal Code.

7. Learned APP submitted that the petitioner had

taken money for providing job to the son of the informant and

had given a fake appointment letter and had not even returned

the money.

8. Learned counsel for the informant submitted that

for getting job of his son in the Railways, he had given a huge

amount of money being a man of means, but the petitioner has

cheated him by firstly giving a forged appointment letter and

thereafter not returning the money.

9. On a query to learned counsel for the informant as

to how being a practicing advocate for over 20 years, he could

have given money in the form of bribe for getting job of his son

and now he was agitating in law for non-fulfilment of the

commitment by the petitioner, as the contract/agreement itself

was not only void ab initio, but totally illegal, learned counsel

could not give any reply.

Patna High Court CR. MISC. No.24096 of 2021 dt.21-08-2021

10. Having considered the facts and circumstances of

the case and submissions of learned counsel for the parties, the

Court finds that the allegation itself states that in lieu of money

job was promised to the son of the informant and he being a

practicing advocate for almost 22 years, such allegation raises

serious doubt with regard to its authenticity as the Court is

unable to believe that an advocate of more than 20 years of

standing would be so naive so as to not understand the

implication of giving money to a person for getting a job under

the State. Moreover, there is nothing to show that the petitioner

actually received money and the fact that the co-accused Vikash

Kumar Dubey has himself admitted he and the informant

himself, who were in the said business and there was transaction

of money also, the Court is persuaded to allow the prayer for

pre-arrest bail.

11. Accordingly, in the event of arrest or surrender

before the Court below within six weeks from today, the

petitioner be released on bail upon furnishing bail bonds of Rs.

25,000/- (twenty five thousand) with two sureties of the like

amount each to the satisfaction of the learned Railway Court/

Railway Judicial Magistrate, Bhojpur (Ara) in Ara Rail PS Case

No. 38 of 2020, subject to the conditions laid down in Section Patna High Court CR. MISC. No.24096 of 2021 dt.21-08-2021

438(2) of the Code of Criminal Procedure, 1973 and further (i)

that one of the bailors shall be a close relative of the petitioner,

and (ii) that the petitioner shall cooperate with the Court and the

police/prosecution. Failure to cooperate shall lead to

cancellation of his bail bonds.

12. It shall also be open for the prosecution to bring

any violation of the foregoing conditions of bail by the

petitioner, to the notice of the Court concerned, which shall take

immediate action on the same after giving opportunity of

hearing to the petitioner.

                       13.    The     petition     stands     disposed         of    in    the

            aforementioned terms.


                                              (Ahsanuddin Amanullah, J)

J. Alam/-

AFR/NAFR
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