Allahabad High Court
Neeraj Puri Goswami vs State Of U.P. Thru. S.P. Cbi/Acb Lucknow on 23 November, 2020
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 30 Case :- BAIL No. - 12296 of 2019 Applicant :- Neeraj Puri Goswami Opposite Party :- State Of U.P. Thru. S.P. Cbi/Acb Lucknow Counsel for Applicant :- Anuuj Taandon,Brij Mohan Sahai,Jitendra Giri,Purnendu Chakravarty,Ram Charitra Pandey Counsel for Opposite Party :- A.S.G. Hon'ble Rajeev Singh,J.
Heard Mr. Brij Mohan Sahai, Advocate and Mr. Purnendu Chakravarty, learned counsel for the applicant as well as Mr. Anurag Kumar Singh, learned counsel for the C.B.I. and perused the record.
The present bail application has been filed on behalf of the applicant in Case Crime No. RC- 006 2019 A 0003, under Sections 120-B I.P.C. & Section 7 of Prevention of Corruption Act, 1988, Police Station C.B.I./A.C.B., District Lucknow with the prayer to enlarge him on bail.
The submission of learned counsel for the applicant is that the applicant is an innocent person and he is in jail since 10.03.2019.
It is further submitted on behalf of the applicant that applicant has been falsely implicated in the present case. He further submitted that the alleged offence is punishable upto seven years and the charge sheet has already been filed on 08.05.2019. He further submitted that the alleged F.I.R. was registered at Police Station C.B.I./A.C.B., District Lucknow, under Section 120-B I.P.C. & Section 7 of Prevention of Corruption Act, 1988 on the written complaint of one Shri Avadesh Mishra, Project Manager, M/s SHARP Enterprises, 136-A, Luckerganj, Allahabad. He further submitted that the aforesaid written complaint dated 07.03.2019 addressed to the Superintendent of Police, is based on frivolous facts and allegations and on the basis of said allegations, no any offence is made out against the applicant.
Learned counsel for the applicant has further submitted that the C.B.I. without going through the facts and the procedure regarding the measurement of the site working, maintenance of the measurement books etc., lodged the present F.I.R. He further submitted that it is also alleged that Ravindra Kumar Chaudhary, who is not the informant as per the F.I.R., proceeded towards Asha Hospital and parked his vehicle behind the Mahindra Bolero Vehicle standing in front of Asha Hospital and thereafter, he went near the white color Mahindra Bolero and got seated in the middle seat of the said vehicle where 2 persons were already sitting. It is further alleged in the F.I.R. that two packets have been recovered from the said vehicle i.e. one packet has been recovered from the middle seat of the said vehicle containing Rs.6,00,000/- and another packet was recovered from the back pocket of left side front seat cover of the said vehicle. He further submitted that it is undisputed that no personal recovery was made from the possession of both the accused persons as the alleged recovery has been effected from the said vehicle and the same has been planted by Ravindra Kumar Chaudhari.
Learned counsel for the applicant has further submitted that in the present scenario of Covid-19 Pandemic, health crises was started since March, 2020 in the country. Therefore, the Hon'ble Apex Court took a serious view of the present health crisis arising out of Corona Virus (COVID-19) with regard to Prisons and Remand Homes in Suo Motu Writ Petition (C) No.1 of 2020 In RE: Contagion of COVID-19 Virus in prisons and issued notices to all the States & Union Territories and after considering their stand, a direction was issued on 23.03.2020, thereby directing all the States/Union Territories to constitute a High Powered Committee comprising of; (1) Chairman of the State Legal Services Committee; (2) the Principal Secretary (Home/Prison) by whatever designation is known as; (3) Director General of Prison(s), to determine which class of prisoners can be released on parole or on interim bail for such period as may be thought appropriate. For instance, the State/Union Territories could consider the release of prisoners, who have been convicted or are under trial for offences for which prescribed punishment is upto 7 years or less, with or without fine and the prisoners has been convicted for a lesser number of years than the maximum. The applicant was enlarged on interim bail and he never misused the liberty of bail. Therefore, the applicant is entitled for regular bail.
Mr. Anurag Kumar Singh, learned counsel for the C.B.I. has opposed the prayer for grant of regular bail to the applicant and submitted that bail application of applicant under Section 439 Cr.P.C. is not maintainable because the applicant is not in the physical custody and he also relied on the decision of Hon'ble Supreme Court in the case of Niranjan Singh & Anr. Vs. Prabhakar Rajaram Kharote & Ors. reported in 1980 2 SCC 559 and in the case of Sundeep Kumar Bafna Vs. State of Maharastra and Anr. passed in Criminal Appeal No.689 of 2014 and submitted that the applicant was taken into custody on 10.03.2019 by the C.B.I. team and thereafter, the case was registered and two envelops containing Rs. 6,00,000/- & 4,00,000/- were recovered from the vehicle in question. Thereafter, the charge sheet was filed and the trial is pending before the court below, but learned counsel for the C.B.I. has conceded the fact that alleged offence is punishable upto 7 years and under the order of Hon'ble Supreme Court in Suo Moto Writ Petition (C) No.1 of 2020, applicant was released from prison by the Committee to stop the spread of infection.
Considering the arguments of learned counsel for the applicant as well as learned counsel for the C.B.I. and going through the records, it is evident that the applicant was in jail since 10.03.2019 and thereafter, charge sheet was filed by the Investigating Officer under Section 7 of Prevention of Corruption Act and Section 120-B of I.P.C. and the bail application of applicant was rejected by the court below on 22.05.2019, the trial is pending, thereafter, the present bail application was filed on 16.12.2019 and time was granted to learned counsel for the C.B.I. for filing counter affidavit and the matter was fixed on 06.01.2020, thereafter, due to Covid-19 pandemic, Hon'ble Supreme Court took cognizance in Suo Moto Writ Petition (C) No.1 of 2020, In RE: Contagion of Covid-19 Virus in prisons and invited response from all the States/Union Territories, thereafter, on 23.03.2020 following directions was passed:-
"Looking into the possible threat of transmission and fatal consequences, it is necessary that prisons must ensure maximum possible distancing among the prisoners including undertrials.
Taking into consideration the possibility of outside transmission, we direct that the physical presence of all the undertrial prisoners before the Courts must be stopped forthwith and recourse to video conferencing must be taken for all purposes. Also, the transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner. Also, there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen.
We also direct that prison specific readiness and response plans must be developed in consultation with medical experts. "Interim guidance on Scaling-up COVID-19 Outbreak in Readiness and Response Operations in camps and camp like settings" jointly developed by the International Federation of Red Cross and Red Crescent (IFRC), International Organisation for Migration (IOM), United Nations High Commissioner for Refugees (UNHCR) and World Health Organisation (WHO), published by Inter-Agency Standing Committee of United Nations on 17 March, 2020 may be taken into consideration for similar circumstances. A monitoring team must be set up at the state level to ensure that the directives issued with regard to prison and remand homes are being complied with scrupulously.
The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID ? 19).
Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.
We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.
It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate.
The Undertrial Review Committee contemplated by this Court In re Inhuman Conditions in 1382 Prisons, (2016) 3 SCC 700, shall meet every week and take such decision in consultation with the concerned authority as per the said judgment.
The High Powered Committee shall take into account the directions contained in para no.11 in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273."
In pursuance of the aforesaid directions, the High Powered Committee was constituted and resolved in a meeting dated 27.03.2020. The aforesaid resolution is as under:-
"...The Committee prisoners further resolved that following category of undertrial prisoners (except undertrial prisoners who are Foreign Nationals) may be released on Interim Bail.
Undertrial prisoners facing criminal cases in which maximum sentence is 07 years and presently confined in jails may be released on interim bail for 08 weeks by the Sessions Court, Additional Sessions Court or the Chief Judicial Magistrate including other Judicial Magistrates, as the case may be, on furnishing personal bond with the undertaking written on the personal bond itself that he/she shall surrender before the Court after expiry of the interim bail period. Other conditions may be imposed by the Court if it thinks fit, considering the circumstances of the case.
The grant of interim bail may be done by visiting the jails, on alternate days, by the Sessions Judge/Additional Sessions Judge/Chief Judicial Magistrate/other Judicial Magistrates, as the case may be, on the bail applications at the jails itself and it shall be done forthwith. For drafting bail applications, to be moved by under trial prisoners, assistance and services of prison officers, jail staff, jail Para Legal Volunteers (PLVs) and Panel Lawyers empanelled with the District Legal Services Authority, DLSA may be utilised under intimation to the Secretary, DLSA of the concerned district. For this purpose passes shall be issued to the Judges/Magistrates & Panel Lawyers during lock down period by the District Administration.
The Undertrial Review Committee contemplated by the Hon'ble Supreme Court in Re Inhuman Conditions in 1382 prisons, (2016) 3 SCC 700, shall meet every week and take such decisions in consultation with the concerned district authority as per the said judgment.
Jail Superintendent shall be in continuous touch with concerned Secretary, District Legal Services Authority regarding disposal of interim bail applications moved by the undertrial prisoners so that proper arrangements may be made.
The information regarding number of Parole granted and Interim Bail applications moved and decided in a day, shall be communicated to the "State Level Monitoring Team" on the next day and also be displayed on the official website of the Prison, i.e. [email protected]?"
Thereafter, vide order dated 31.03.2020, the applicant was enlarged on interim bail and it is undisputed that till today, applicant is on interim bail, in such circumstances, the applicant is in deemed custody and there is no legal impediment in deciding his regular bail application, therefore, the objection raised by the counsel for C.B.I. in relation to the physical custody of applicant is not maintainable and the decisions relied by him are also not applicable in the present case as the applicant is on interim bail since 31.03.2020 and there is no evidence regarding the misuse of liberty of bail, therefore, without expressing any opinion on the merits of the case, this Court is of the view that the regular bail application of the applicant is entitled to be allowed.
As the applicant - Neeraj Puri Goswami - is already on interim bail in the aforesaid Case Crime, therefore, the applicant is directed to furnish fresh personal bond of Rs.5,00,000/- and two reliable sureties each of the said amount to the court concerned subject to following conditions:-
(1) Applicant will not leave the country without prior permission of the trial court and he will submit his passport, if having, before the trial court.
(2) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(3) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(4) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C.
(5) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(6) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(7) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
Trial court is directed to conclude the trial expeditiously, strictly in accordance with the provision contained in Section 309 Cr.P.C. forthwith.
Order Date :- 23.11.2020 S. Shivhare