Allahabad High Court
Ashish Mishra vs State Of U.P. And Another on 15 May, 2025
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:80781 Reserved on 04.03.2025 Delivered on 15.05.2025 Court No. - 64 Case :- CRIMINAL APPEAL No. - 2224 of 2024 Appellant :- Ashish Mishra Respondent :- State of U.P. and Another Counsel for Appellant :- Amit Kumar Srivastava,Ayush Mishra,Lalit Kumar Shukla,Prabha Shanker Mishra,Prakash Sharma Counsel for Respondent :- G.A. Hon'ble Samit Gopal,J.
1. Heard Sri Amit Kumar Srivastava, learned counsel for the appellant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record. The trial court records are also available which have also been perused.
2. This appeal has been filed against the judgement and order dated 23.02.2024 passed by the Additional District & Sessions Judge/Special Judge (Prevention of Corruption Act) Court No. 1 Gorakhpur in Special Sessions Trial No. 957 of 2019 (State vs. Ashish Mishra) arising out of Case Crime No. 880 of 2019, under Section 7 of the Prevention of Corruption Act, 1988 (Amendment, 2018), Police Station Cantt., District Gorakhpur, convicting and sentencing the appellant- Ashish Mishra, under Section 7 of the Prevention of Corruption Act, 1988 (Amendment, 2018) for 5 years rigours imprisonment and a fine of Rs.50,000/- and in default of payment of fine, further six months additional imprisonment was awarded to the appellant.
3. The matter initiates on an application Ex.-Ka-1 given by Ajay Kumar @ Manoj Kumar to the In-Charge Inspector Anti-Corruption Department, Gorakhpur stating therein that on 26.05.2019, Bheem Chandra, Dharmendra, Dharmraj and Chhotey Lal of his village instead of giving compensation of the damage to his new Holland Tractor assaulted his brother Angad @ Ajay Kumar with lathi and danda, due to which, he received injuries. On an application of his brother Vinod Kumar, a case was lodged at the Police Station Belghat as Case Crime No. 105 of 2019, under Sections 323, 427 and 325 I.P.C. For settling the matter through compromise, Smt. Nirmala, from the side of the accused persons therein, got a false and fabricated case lodged against his brothers Vijay, Vinod and Radhey Shyam at Police Station Belghat as Case Crime No. 159 of 2019 under Sections 313, 452 and 504 I.P.C., on the basis of an order passed by the competent court, the investigation of which was being done by S.I. Ashish Mishra of Police Station Belghat. He met the Investigating Officer to apprise him of the actual situation, on which, the Investigating Officer demanded Rs.1,50,000/- for filing a final report. He told him about the actual position and the fact that his brothers have been falsely implicated and pleaded to him a lot on which, he asked for Rs.80,000/- and stated that he will not take anything less than that. He told him that Rs.40,000/- has to be given immediately and Rs.40,000/- has to be given within a week when he will file a final report, otherwise he would arrest all the three brothers and send them to jail. He is disturbed because of the act of the Investigating Officer. He does not want to give the bribe of Rs.40,000/- but wants him to be arrested while accepting it. Appropriate steps be taken and the Investigating Officer be arrested accepting the bribe money.
4. On the said application of the original complainant, an inquiry was conducted by the officer concerned through Inspector Ashok Kumar Singh. The allegations were found to be correct and then pre-trap proceedings were conducted. Two public witnesses were directed to accompany the trap team as ordered by the District Magistrate concerned, in compliance of which, Sri Deelip Kumar Srivastava and Sri Kaushal Kumar Srivastava were nominated as the witnesses. Twenty notes of Rs.2,000/- each were prepared for being given as bribe money to the accused. The notes were treated and handed over to the original complainant. The conversation between the original complainant and the accused was done regarding the date and time of their meeting on which, it was decided that they will meet at 6:30 p.m. on 12.09.2019 near Dharmshala Chauraha. On the said date and time, the accused and the original complainant met wherein, the accused demanded the bribe money which was handed over by the original complainant who accepted it and then started counting it on which, raid was conducted and the accused with notes in his hand was apprehended after which the further trap proceedings were done. At the said place, people started gathering and looking to the same and for maintaining law and order, the trap team along with original complainant and accused went to Police Station Cantt. District Gorakhpur and got the fingers of the accused washed in a solution and did further formalities and prepared a recovery and arrest memo, the same is marked as Annexure-Ka-3 to the records.
5. On the basis of the said recovery memo, a first information report was lodged as Case Crime No. 0880 of 2019 under Section 7 of Prevention of Corruption Act, 1988, Police Station Cantt., District Gorakhpur against the accused-appellant on 13.09.2019 at 01:07 hours by Dev Prakash Rawat Inspector In-charge Anti Corruption Organization, Gorakhpur. The Chick F.I.R. is marked as Annexure-Ka-18 to the records.
6. The matter was investigated and a charge sheet no. 10 of 2019 dated 31.10.2019 was filed against the accused appellant under Section 7 of the Prevention of Corruption Act, 1988. The same is marked as Annexure-Ka-13 to the trial court records.
7. Site plan of the place of occurrence was prepared on 18.09.2019 which is marked as Annexure-Ka-14 to the records.
8. Sanction under Section 197 Cr.P.C. was given by the Additional Director General of Police / Inspector General of Police, Gorakhpur Range, Gorakhpur vide his order dated 07.10.2019, the same is marked as Annexue-Ka-18 to the records.
9. The Court of the Special Judge, Prevention of Corruption Act, Court No. 1, / Additional District and Sessions Judge, Gorakhpur vide order dated 04.12.2020 took cognizance upon the said charge sheet.
10. The Court of Special Judge / Special Court (P.C. Act), Court No. 1, Gorakhpur vide order dated 04.12.2020 framed charge against the accused appellant Ashish Mishra under Section 7 of the Prevention of Corruption Act, 1988 (as Amended by Prevention of Corruption Act, 2018). The charge was read to the accused, who understood it and denied it and claimed to be tried.
11. The trial in the matter started in which the original complainant Ajay Kumar @ Manoj Kumar was examined as P.W.-1, first informant Dev Prakash Rawat was examined as P.W.-2, Kaushal Kumar was examined as P.W.-3, Jai Narayan Singh was examined as P.W.-4, Inspector Ashok Kumar Singh was examined as P.W.-5 and Ashok Kumar Dwivedi was examined as P.W.-6.
12. The accused in his statement under Section 313 Cr.P.C. denied the prosecution version and stated of false implication in the matter. He further stated that in Case Crime No. 159 of 2019 under Sections 313, 452, 504 I.P.C., he had prepared only two parchas. He states that the original complainant Ajay Kumar @ Manoj Kumar wanted to get a final report in the matter to which, he had refused. The said original complainant and the In-charge Inspector of the Anti Corruption Department with his political connections entered in a conspiracy and when on 12.09.2019, he had gone to the Juvenile Court, Gorakhpur in a case for seeking remand, took him in their vehicle and a false recovery was shown and he was challaned. He states that there was no recovery of any money from him and neither did he demand any bribe.
13. In defence, the accused produced one Sunil Kumar Yadav, the Head Constable, Police Station Belghat, District Gorakhpur as D.W.-1.
14. The trial court after recording of the evidence, the statement of accused and of the defence witness came to a conclusion that the prosecution has proved its case beyond reasonable doubt and thus vide impugned judgement and order convicted and sentenced the accused-appellant Ashish Mishra as above.
15. The present appeal has thus been filed before this Court by the accused appellant Ashish Mishra against the said judgement and order of conviction and sentence dated 23.02.2024.
16. P.W.-1 Ajay Kumar @ Manoj Kumar is the original complainant in the present matter. He proves his complaint given at the very inception and the contents thereof. He further states that he met the accused applicant S.I. Ashish Mishra and told him about his brother being falsely implicated on which, a demand of Rs.1,50,000/- was made by him for filing a final report and then on persuasion and request, he was asked to give Rs.80,000/- out of which Rs.40,000/- was told to be given immediately and the remaining Rs.40,000/- was asked to be given within a week after filing of a final report. He further states of giving currency notes to the trap team which were treated and then states about his handing over of the said notes to the accused on his demand after which the trap team apprehended him and recovered the said currency notes. He then states of the proceedings post the trap and a memo being drawn of it. He states of two public witnesses being present at the said time. In his cross examination there was nothing elicited by the defence in their favour.
17. P.W.-2 Dev Prakash Rawat is the first informant of the present case, he states of receiving of an application from the original complainant which was then taken up and pre-trap inquiry was conducted and a report was submitted regarding it. Subsequently, a trap team was constituted and the trap proceedings were conducted and trap was led. The currency notes were taken from the original complainant and their identification was recorded in a memo after which the notes were treated and given to the original complainant for being given to the accused at the decided date and time. The original complainant handed over the said currency notes to the accused on which the trap team apprehended the accused with the said currency notes and then since lot of people had collected there finding it unsafe, they proceed with the accused to the police station Cantt. wherein the proceedings were conducted and arrest and recovery memo was drawn. On the basis of the said arrest and recovery memo, the first information report of the present matter was lodged.
18. In cross examination, he states that the original complainant gave an application on 12.09.2019, the inquiry on the same was done and proceeding for trap along with letter to the higher authorities were done on the same day. P.W.-3 Kaushal Kumar Srivastava is the witness of the trap.
19. P.W.-4 Jai Narayan Singh had granted sanction for prosecution of the accused appellant. He states that he had given sanction under Section 197 Cr.P.C. after which a letter was received for seeking sanction under Section 19 of the P.C. Act which was subsequently given by him. The same is Ex. Ka-12 to the records.
20. P.W.-5 Inspector Ashok Kumar Singh is the Investigating Officer of the present matter. He took up the investigation and then concluded it by filing a charge sheet against the accused. He was the person who had conducted the pre-trap inquiry in the matter.
21. P.W.-6 Ashok Kumar Dwivedi is the Constable Clerk who transcribed the Chick F.I.R. He proves the same.
22. D.W.-1 Sunil Kumar Yadav was the Head Constable posted at Police Station Belghat. He has produced before the court G.D. No. 26 dated 12.09.2019 and filed a copy of the same. He states that on the said day Ashish Mishra had gone to the Court concerned with regards to a case of juvenile for his remand and his rawangi is recorded therein. The same has been filed before the Court which is Ex. Kha-1 to the records. In his cross examination, he states that he was posted at the police station Belghat from August, 2021. He further states that the time return of the police personnel is not recorded, the work done by him cannot be said to be done. He states that at the time of incident since he was not posted at the police station, he does know regarding the case lodged against the Ashish Mishra.
23. Learned counsel for the applicant submitted as under :-
(i) The appellant has been falsely implicated in the present case.
(ii) The demand of the alleged bribe money needs to be proved but accept for the original complainant - Ajay Kumar @ Manoj Kumar, who has been examined as P.W.-1 before the trial court. There is no witness to corroborate it.
(iii) The statement of P.W.-1 regarding the alleged demand of bribe money is totally vague, inasmuch as, there is no date and time mentioned as to where and when the said demand was raised.
(iv) The judgements of the Apex Court in the case of Neeraj Dutta vs. State (Government of NCT of Delhi) : (2019) 14 SCC 311 and The State of Andhra Pradesh vs. Mir Mustafa Ali Hasmi : 2024 INSC 503 are being relied upon to state that if the demand and recovery is not proved, the prosecution would fall.
(v) The sanction for prosecution is totally irregular, inasmuch as, previously sanction under section 197 Cr.P.C. was accorded by the concerned sanctioning authority and subsequently, after receiving a letter from the Investigating Officer, sanction under Section 19 of the Prevention of Corruption Act was accorded. The same goes to show that there had been none application of mind totally while according sanction. The said fact also is stated by P.W.-4 Jay Narayan Singh. The judgement of the Apex Court in the case of Nanjappa vs. State of Karnataka : AIR 2015 SC 3060 has been relied upon for the same.
(vi) The proceedings subsequent to alleged trap were not conducted on the spot but were done at the police station, which thus challenges its sanctity.
(vii) Ashok Kumar Singh P.W.-4 was the pre trap Inquiry Officer and also the Investigating Officer of the present matter and was sub-ordinate officer, who could not have investigated the matter since he had conducted the pre trap inquiry and had also conducted the investigation in the present matter. The judgement of the Apex Court in the case of Mohan Lal vs. State of Punjab : AIR 2018 SC 3853 has been relied upon
(viii) It is submitted that looking to the irregularities and illegalities in the entire matter, the present appeal dissevers to be allowed and the appellant deserves to be acquitted.
24. Learned counsel for the State, per contra, argued as under :-
(i) The entire proceedings were conducted as per the procedure laid down for it which were followed.
(ii) P.W.-1 the original complainant has stated about the demand of bribe money from him and subsequently, the same was accepted by the accused-appellant on which he was apprehended for trap proceedings.
(iii) There were public witnesses present at the time of laying down of the trap who were nominated by the District Magistrate concerned.
(iv) The chain of proceedings of trap is complete and there is no illegality in it.
(v) The accused-appellant had an occasion to demand bribe and accept it which is the case of the prosecution.
(vi) The prosecution witnesses are genuine and natural, who have supported the prosecution case.
(vii) The prosecution has proved its case beyond reasonable doubt and thus the appeal deserves to be dismissed.
25. After having heard the learned counsel for the parties and perusing the records, it is evident that insofar as the alleged demand of bribe money is concerned, the fact that the same was asked for by the accused-appellant is vague, inasmuch as the date of time of the same is not mentioned. Irregularity occasioned in sanction inasmuch as previously sanctioned was accorded under Section 197 Cr.P.C. but subsequently, after a letter by the Investigating Officer P.W.-4 accorded sanction under Section 90 of the Prevention of Corruption Act. The officer conducting the pre trap inquiry was the same who is the Investigating Officer of the matter.
26. The facts, thus, show that the appellant deserves to be extended benefit of doubt in the present matter.
27. The appeal is thus allowed by extending benefit of doubt to the appellant. The conviction and sentence as awarded to the appellant is hereby set aside.
28. The appellant Ashish Mishra is acquitted of the charges levelled against him. He is in jail. He be released from jail forthwith unless wanted in any other case.
29. A copy of this judgement along with the lower court records be sent to the court below forthwith for communication and necessary action.
Order Date :- 15.05.2025 Manoj (Samit Gopal,J.)