Allahabad High Court
Smt. Jayanti (Second Bail Application) vs A.C.B./ C.B.I. Lucknow on 24 July, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?In Chamber Case :- BAIL No. - 10371 of 2019 Applicant :- Smt. Jayanti (Second Bail Application) Opposite Party :- A.C.B./ C.B.I. Lucknow Counsel for Applicant :- Naveen Kumar Pandey,Ayodhya Prasad Mishra,Neeraj Pandey Counsel for Opposite Party :- Bireshwar Nath,S.B.Pandey Hon'ble Jaspreet Singh,J.
Heard Sri A.P. Mishra, learned counsel for the applicant and heard the learned ASG Sri S.B. Pandey, assisted by Sri Kazim Ibrahim.
This is the second bail application of the applicant Smt. Jayanti who has been languishing in Jail since 24.08.2017 in connection with Case Crime No. RC 0062016A0009 under Sections 120-B, 409, 420, 467, 468, 471 I.P.C. and Sections 13 (2), 13 (1) (c) and (d) of Prevention of Corruption Act, 1988 and Sections 65, 66 (c) and 66 (d) of the Information Technology Act, 2000.
At the very outset, the learned counsel for the applicant has submitted that the earlier bail application of the applicant was rejected by a coordinate Bench of this Court by means of order dated 21.01.2019 passed in Bail Application No. 9711 of 2017, a copy of which has been brought on record as annexure no. 3 to this second bail application.
The learned counsel for the applicant has further submitted that since the passing of the earlier order, subsequent new ground has emerged which has prompted the applicant to make this second bail application.
Sri A.P. Mishra has further informed that the aforesaid second bail application was listed before the Bench which had rejected the first bail application, however, subsequently, by means of order dated 19.06.2020, it was ordered that this matter may not be treated as part heard or tied up to that particular Bench and was directed to be listed before the appropriate Bench. It is in this fashion, the second bail application has been placed before this Court.
Sri Mishra further submits that in the interim period, the applicant had moved an application for short term bail which was registered as Misc. Application No. 39124 of 2020 dated 19.06.2020, however, since the Regular Second Bail Application is being considered, hence, the applicant does not wish to press the same.
In view of the submissions made by Sri A.P. Mishra, the application bearing No. 39124 of 2020 for short term bail stands rejected as not pressed.
Sri Mishra has urged that the instant matter relates to a scam wherein certain persons working in the post office by resorting to subterfuge have embezzled and misappropriated the government money.
It has been submitted that as per the prosecution story contained in the First Information Report, it has been mentioned that one Sri Kumar Priyadarshi while working as Sub Post Master, DLW Post Office, Varanasi along with certain other persons who were in connivance with the aforesaid main accused opened fictitious bank accounts. As per the modus operandi, the amount was transferred into these newly opened bank accounts which related to the friends and family members of Sri Priyadarshi. Certain fictitious bank accounts were also opened in the name of persons and the Government money from the post offices was transferred into the said accounts and thereafter withdrawn by the main accused and the other co-accused through different post offices and at different places and also from the different ATMs on different dates.
Sri Mishra has urged that initially when the first Bail Application was moved, the investigation was not complete nor the charge sheet had been filed, however, during this interim period, the charge sheet has been filed, the investigation is complete and 4 prosecution witnesses have also been testified while the 5th witness has been partly examined. Sri Mishra further submits that the applicant is a lady and at the time when she was arrested she was pregnant and during her incarceration, she gave birth to a child who was born in January, 2018. Now, even the infant is about 1 and a half years old whereas the applicant also has another son who is about 13 years of age is living with his grand parents and as such it is also in the interest of both the children who should be privy to the love and affection of the parents and siblings for healthy development upbringing.
It has also been urged that once the trial has started and the applicant has already been in jail since 24.08.2017, being a lady she is also entitled to the benefit of Section 437 Cr.P.C. It has also been argued that even otherwise from the perusal of the charge sheet it would indicate that the applicant has been charged with criminal conspiracy with the co-accused namely Kumar Priyadarshi who used the account of the applicant for misappropriation of the government funds. But the fact remains that the applicant being the wife of the main co-accused and as a housewife, she did not know much about the alleged funds or its source and even the transfer rather it was all orchastrated by her husband namely Kumar Priyadarshi. The accounts which have been mentioned in the charge sheet are also joint accounts and there is not any individial account through which the amount has been diverted. It has been submitted that the role ascribed to her husband Kumar Priyadarshi is altogether different to that of the applicant and even in the facts and circumstances, the alleged offence against the applicant is not made, coupled with the fact that the witnesses are all Government Servants and there is no chance for the applicant to either influence them nor there is any chance for the applicant to tamper with any evidence and moreover the applicant having deep roots in the society having two young children is not likely to abscond and even otherwise the applicant undertakes that she will abide by any conditions which may be imposed by the Court, if the bail is granted.
Sri S.B. Pandey, the learned ASG has vehemently opposed the bail application. It has primarily been submitted that all the submissions made by Sri Mishra have already been considered by the coordinate Bench of this Court while dealing with the first bail application. It has been submitted that the first bail rejection order is detailed containing reasons which indicates that a large Government sum has been misappropriated and consequently the offence is quite serious, coupled with the fact that the complicity of the applicant is quite evident from the material available on record, hence, there is no new ground for considering the application and as such the second bail application also deserves to be dismissed.
The Court has considered the rival submissions and also carefully perused the record. A fact which also needs to be noticed is that in pursuance of the order passed by the coordinate Bench of this Court dated 10.01.2020, the status of the trial court was also called for. The record indicates that by means of the letter dated 04.02.2020, the Trial Court concerned has informed that in the aforesaid trial, all the charges have been framed against all the accused including the present applicant on 05.09.2018 and four prosecution witnesses have already been examined and the 5th prosecution witness is partly examined. It has been informed that 78 prosecution witnesses are yet to be examined. It has also been informed that after completion of further investigation by the CBI a supplementary chargesheed was also filed on 06.01.2020 in which 4 more accused persons have been chargesheeted. Thus, there is a list of 82 additional prosecution witnesses which have been named along with the above supplementary charge sheet. The Trial Court has also indicated in the said letter that it is difficult to predict the expected time by which the trial may be completed, however, conservatively, 4 years time has been mentioned by the Trial Judge which may be consumed for the disposal of the case. Significant to note that the aforesaid information was sent on 04.02.2020 i.e. when the Covid-19 pandemic had not spread its tentacles in our country.
Another fact which is to be taken note of is that certain other co-accused who have been ascribed a similar role as that of the applicant have also been enlarged on bail by a coordinate Bench of this Court. One Sri Sanjay Kumar Ojha who was posted and was functioning as Post Master Grade-1 at Amishabad post office, Patna who was also found involved in the aforesaid scam was enlarged on bail in Bail Application No. 3819 of 2018 by means of order dated 18.09.2018. Similarly, another co-accused Soni Kumari who is also a close relative of the main accused Kumar Priyadarshi in whose account a large sum of Rs. 88 lakhs and odd was transferred was also enlarged on bail by a coordinate Bench of this Court by means of order dated 18.09.2019 passed in Bail Application No. 3722 of 2018. Similarly, another close relative of the main accused namely Sri Ashutosh Chandra in whose account large sum was also transferred was also enlarged on bail by means of order dated 18.09.2019 passed in Bail Application No. 5296 of 2018. Another co-accused namley Sri Raj Kumar who was posted and functioning as Postal Assistant at Amishabad Post Office at Patna who is said to have facilitated the clearance of 27 vouchers through which a sum of Rs. 1 crore and odd has also been withdrawn has also been enlarged on bail by means of the order dated 18.09.2019 passed in Bail Application No. 494 of 2018 by a coordinate Bench of this Court. Another co-accused namely Chandrama Prasad Singh who was working as GDS Packer at DLW Post Office, Varanasi and is said to have working on different counters including the cash counters and who also facilitated the transfer of huge sum has also been enlarged on bail by means of an order dated 25.09.2019 passed in Bail Application No. 10040 of 2017 by a coordinate Bench of this Court.
Sri S.B. Pandey, learned ASG could not dispute the fact that as far as the other co-accused are concerned except the main accused, the details of which have been mentioned above, have already been enlarged on bail. Sri Pandey also could not dispute the fact that in so far as the present applicant is concerned, her role is merely being the wife of the main accused through whose accounts money has been transferred and misappropriated. Though, it is also not disputed that the present applicant is neither a Government Servant nor she had any access to any of the working in the post office nor she could be in a position to influence any official of the post office to have made such transfers.
Sri Pandey also could not dispute that since the dismissal of the first bail application, things have materially changed, inasmuch as, the entire investigation is over. The applicant has been charge sheeted and though the trial has commenced and from the long list of prosecution witnesses only 4 witnesses have been examined and the 5th is underway. In the humble estimation of the Trial Judge, it has been expressed that it may take 4 years for the trial to complete. In these changed circumstances, where the applicant has been chargesheeted and there is no apprehension expressed by Sri Pandey that there was any misdemeanor on the part of the applicant or that she did not corporate in the investigation or that there is any flight risk or there is a chance of the applicant to influence any witness or tamper with the evidence. In the aforesaid circumstances, coupled with the fact that the Court cannot remain oblivious to the additional factor where the applicant being a lady has given birth to a child during her incarceration and that child is also about a year and a half old now and the child is with his mother in confinement and has right to grow up in a free environment along with his sibling and to secure proper education, love and affection of his grand parents and company of his brother and all such factors contribute to a healthy personality. The idea behind the pre-trial bail is neither punitive or retributive but primarily to ensure that the accused is available to face trial and does not tamper with the evidence or influence any witness.
At this stage, it will be apposite to notice the expression of opinion by the Apex court in the case of Dataram Singh Vs. State of U.P reported in 2018 (3) SCC 22. The relevant paragraphs reads as under:-
"1.A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge-sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436-A in the Code of Criminal Procedure, 1973.
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India [Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 : (2017) 13 Scale 609] going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] in which it is observed that it was held way back in Nagendra Nath Chakravarti, In re [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476] that bail is not to be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356] wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory"
Thus, considering all the aforesaid facets this Court is of the considered opinion that on the basis of over all facts and circumstances and taking a holistic view of the matter, this Court is of the considered opinion that the applicant is entitled to be enlarged on bail.
Let the applicantSmt. Jayanti involved in Case Crime No. RC 0062016A0009 under Sections 120B, 409, 420, 467, 468, 471 I.P.C. and Section 13 (2) r/w Section 13 (1) (c) and (d) of Prevention of Corruption Act, 1988 and Section 65, 66 (c) and (d) of I.T. Act, 2000, Police Station CBI/ACB District Lucknow, be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the to the satisfaction of the court concerned.
At the time of executing required sureties the following conditions shall be imposed in the interest of justice.
(i) The applicant, in case, if possess a passport shall surrender the same before the Trial Court and other wise shall not leave the country without the prior written consent of the Court
(ii) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates 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.
(iii) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.
(iv) The applicant shall neither influence any witness nor tamper with any evidence after his release.
(v) In case, the applicant misuses the liberty of bail during trial and in order to secure her presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against her, in accordance with law, under Section 174-A of the Indian Penal Code.
(vi) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 her in accordance with law.
(vii) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(viii) The computer generated copy of such order shall be self attested by the counsel or the party concerned.
(ix) 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.
Order Date :- 24.7.2020 Asheesh