Ashok Kumar Mishra vs State Of Uttarakhand
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Uttarakhand High Court

Ashok Kumar Mishra vs State Of Uttarakhand on 19 November, 2024

Author: Ravindra Maithani

Bench: Ravindra Maithani

HIGH COURT OF UTTARAKHAND AT NAINITAL

         First Bail Application No.1625 of 2024

Ashok Kumar Mishra                            ........Applicant

                            Versus

State of Uttarakhand                        ........Respondent


Present:-
      Ms. Nitya Rama Krishnan, Senior Advocate assisted by Mr.
      Nalin Saun and Ms. Stuti Rai, Advocates for the applicant.
      Ms. Manisha Rana Singh, AGA with Mr. Vipul Painuli, Brief
      Holder for the State.

Hon'ble Ravindra Maithani, J. (Oral)

The applicant is in judicial custody in

FIR/Case Crime No.11 of 2024, dated 02.07.2024, under

Section 7 of the Prevention of Corruption Act, 1988, Police

Station Vigilance Sector Nainital, Haldwani, District

Nainital. He has sought his release on bail.

2. Heard learned counsel for the parties and

perused the record.

3. According to the prosecution, the applicant

runs a country made liquor shop. He had to take some

liquor from the stock for the previous year i.e. for the year

2023-24 worth `10,21,417/-, where the applicant was the

District Excise Officer, who demanded illegal gratification

@ 12%, which after negotiation settled @ 10% . The

complainant had reported the matter to the Vigilance

Department. Vigilance Department gave a voice recorder

to the complainant. The conversation dated 25.05.2024

and 29.05.2024 were recorded by the complainant. After

verification, a trap was made on 02.07.2024. Post trap

memo was prepared. The conversation that took place at

the time of trap was also recorded. According to the

prosecution, the applicant received `70,000/-. He was

caught red-handed. His hand was turned pink.

4. Learned Senior Counsel appearing for the

applicant would submit that the applicant had undergone

procedure in the past; he is a man of fragile .......; he has

been on bail for 20 days due to infection. Therefore, on

health ground, he is entitled for bail. She has also raised

the following points in her submissions:-

i. Trap proceedings were not done as per the procedure. Section of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides that in such maters audio - videography is essential, which is not done; not only this false statement has been given by the victim in the court that audio- videography has been done; no videography has been shown to the court.

ii. If the complaint was made on 07.05.2024, the trap was done after much delay.

iii. There is no independent shadow witness.

iv. The complainant was in a habit of making unsubstantiative allegations; he has done in the past, therefore, he is a seasonal person in a liquor business.

v. On 07.05.2024, no task was pending before the applicant. For lifting the stock for the previous year, an application was required to be made, such application was moved by the complainant on 27.05.2024 and thereafter, he lifted the liquor worth `5 Lakhs.

vi. According to the prosecution, the trap was made at Haldwani at 02:32 PM, the voice recording given at 02:58 PM at Rudrapur, that distance from Haldwani to Rudrapur cannot be travelled in such a short period. It doubts the prosecution case.

vii. If on 07.05.2024, the complainant had given a compliant to the Vigilance Department, any conversation recorded thereafter, should have been given intervention to the Investigating Agency, which has not done on 25th and 29th of May, 2024, it also doubts the prosecution case.

viii. It is argued that even if, the transcript of the conversation dated 25.05.2024 does not establish any demand.

ix. It is argued that in order to attract the provisions of the Act, there should be a demand and acceptance.

5. In support of her contention, learned Senior

Counsel placed reliance in the principle of law, as laid

down in the case of P. Satyanarayana Murthy vs. District

Inspector of Police, State of Andhra Pradesh and another,

(2015)10 SCC, 152; and Mukhtiar Singh Vs. State of

Punjab, (2017)8 SCC 136. Para 24 of the judgment has

been referred.

6. In the case of Satya Narayan (supra), the

Hon'ble Supreme Court inter alia observed that, "Even if

the evidence of PW 1 S. Udaya Bhaskar is accepted on

the face value, it falls short of the quality and

decisiveness of the proof of demand of illegal

gratification as enjoined by law to hold that the

offence under Section 7 or Sections 13(1)(d)(i) and (ii)

of the Act has been proved."

7. In the case of Mukhtiar Singh (supra), under

the facts of that case, the Hon'ble Supreme Court

observed, "the statement of the complainant and the

Inspector Satpal, the shadow witness in isolation that

the original accused had enquired as to whether

money had been brought or not, can by no means

constitute demand as enjoined in law as an ingredient

of the offence levelled against the original accused.

the statement of the complainant and the Inspector

Satpal, the shadow witness in isolation that the

original accused had enquired as to whether money

had been brought or not, can by no means constitute

demand as enjoined in law as an ingredient of the

offence levelled against the original accused."

8. Learned State counsel would submit that based

on the contents made by the complainant on 07.05.2024,

voice recorder was provided to him. The complaint was

verified on 26.06.2024. Immediately trap could not made

because the applicant was on leave. Therefore, the trap

was made on 02.07.2024.

9. Learned State counsel referred the various

portion of the transcript of conversation dated

25.05.2024, 29.05.2024 and 02.07.2024, that, in fact, in

the instant case, the applicant had demanded illegal

gratification. She would submit that the applicant was the

Recommending Officer for lifting of the previous year

stock. It is also argued that any defect in the gratification

cannot affect the trial. Even such illegality of such does

not vitiate proceedings.

10. In addition to it, it is submitted by the learned

State counsel that the proposition of law has been

clarified by the Hon'ble Supreme Court in the case of

Neeraj Dutta vs. State (Government of NCT of Delhi),

(2023)4 SCC 731.

11. It is the stage of bail. Much of the discussion at

this stage is to be avoided. To the extent of appreciating

the controversy the matter may be examined with the

caveat that any observation made at this stage shall have

no bearing at any subsequent stage of the case.

12. It is true that the applicant is unwell. He is

admitted in the hospital, where he remained for some

period. It is not the case that he is unwell today.

Undoubtedly, demand and acceptance is sine qua non

rule in the matter like instant one. What is demand and

what is acceptance? The position of law has been clarified

by the Constitution Bench of Hon'ble Supreme Court in

the case of Neeraj Dutta (supra). In para 88, the Hon'ble

Supreme Court observed as follows:-

"88. What emerges from the aforesaid discussion is summarised as under:

88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment.

In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act.

88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act.

88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature."

13. Not only this, in para 28 of the judgment, the

Hon'ble Supreme Court in the case of Neeraj Dutta has

referred to Kishan Chand Mangal vs. State of Rajasthan,

(1982)2 SCC 466, wherein it was observed that in the

case of trap, the complainant's visit to the Anti-

Corruption Bureau, his producing currency notes and the

superior officer of the department making a trap

arrangement, and the raiding party going to the house of

the accused indicated that a prior demand for payment

was made by the accused and the same was

circumstantial evidence. Hon'ble Supreme Court observed

as follows:-

"28. Another judgment referred to in the Reference Order [Neeraj Dutta v. State (NCT of Delhi), (2021) 17

SCC 624 : 2019 SCC OnLine SC 2205] which is a case which arises under the 1947 Act is Kishan Chand Mangal v. State of Rajasthan [Kishan Chand Mangal v. State of Rajasthan, (1982) 3 SCC 466 : 1983 SCC (Cri) 92] ("Kishan Chand Mangal"). In the said case, it was observed that it was a case of entrapment where the complainant had given a bribe and the demand of the said bribe was also present. It was observed that the evidence on record, for instance, the complainant's visit to the Anti-Corruption Bureau, his producing currency notes and the superior officer of the department making a trap arrangement, and the raiding party going to the house of the accused indicated that a prior demand for payment was made by the accused and the same was circumstantial evidence."

14. There is no dispute to the fact that the previous

year stock could have been lifted by the applicant by

moving an application. It is also not disputed that such

application is to be recommended by the applicant.

15. At this stage of bail, the Court refrains to make

deeper scrutiny of the transcript. Circumstances in this

case are receipt and the transcript is also be read in

continuity. Reading the transcript dated 25.05.2024 and

29.05.2024, it cannot be said that the demand is not

made. The conversation is, in fact, in continuity of

02.07.2024, when the trap was made.

16. It is true that, as such videography has not

been made. Photographs were taken, but it per se does

not vitiate the entire proceedings. The complainant has

stated that the demand was made from him, which he

recorded. He visited the Vigilance Department, trap was

made. The serial currency notes were given to him. In

fact, prior to that, a voice recorder was given to him, in

which, the conversation dated 25.05.2024 was recorded.

Money was taken by the applicant at the time of trap

where he was caught red handed.

17. Having considered, this Court is of the view

that it is not a case fit for bail and the bail application of

the applicant deserves to be rejected.

18. The bail application is rejected.

(Ravindra Maithani, J.) 19.11.2024 Sanjay

SANJAY

DN: c=IN, o=HIGH COURT OF UTTARAKHAND,

2.5.4.20=e50e50b49596520698eff87e0a08bbd504686 df4d1afc60f54a287831dec46fe, postalCode=263001,

KANOJIA st=UTTARAKHAND, serialNumber=26EEB7122ED0DD23233A255DD8EC45 0A84B515A087CAEFD1B3179A7DEAE40699, cn=SANJAY KANOJIA Date: 2024.11.21 11:04:16 +05'30'