Havaldar Clerk Parikshit Pal vs State Of U.P. on 2 September, 2024

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Allahabad High Court

Havaldar Clerk Parikshit Pal vs State Of U.P. on 2 September, 2024

Bench: Rajeev Misra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:141225
 
Court No. - 77
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27336 of 2024
 

 
Applicant :- Havaldar Clerk Parikshit Pal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Karunesh Pratap Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Karunesh Pratap Singh, the learned counsel for applicant and the learned A.G.A. for State

2. Perused the record.

3. This repeat application for bail has been filed by applicant-Havaldar Clerk Parikshit Pal seeking his enlargement on bail in Case Crime No. 354 of 2023 under Sections 419, 420, 114 I.P.C., and Sections 7/13 Prevention of Corruption Act, Police Station-Cantt., District-Ayodhya, during the pendency of trial.

4. First bail application of applicant was rejected by this Court by a detailed order dated 14.06.2023 passed in Criminal Misc. Bail Application No. 53317 of 2022 (Havaldar Clerk Parikshit Pal Vs. State of U.P.). alongwith two connected Crimiminal Misc. Bail Application. For ready reference, the said order is reproduced herein under:

" Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53317 of 2022 Applicant :- Havaldar Nursing Sahayak Jitendra Kumar Verma Opposite Party :- State of U.P. Counsel for Applicant :- Prakash Chandra Srivastava Counsel for Opposite Party :- G.A. With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 748 of 2023 Applicant :- Havaldar Clerk Parikshit Pal Opposite Party :- State of U.P. Counsel for Applicant :- Prakash Chandra Srivastava Counsel for Opposite Party :- G.A. With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17877 of 2023 Applicant :- Janakraj Opposite Party :- State of U.P. Counsel for Applicant :- Mohit Singh,Dileep Kumar Shukla Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

1. Heard Mr. P.C. Srivastava, the learned counsel for applicants- Havaldar Nursing Assistant Jitendra Kumar Verma and Havaldar Clerk Parikshit Pal, Mr. Mohit Singh, the learned counsel for applicant-Janakraj and the learned A.G.A. for State.

2. Perused the record.

3. These applications for bail have been filed by aforementioned applicants seeking their enlargement on bail in Case Crime No. 354 of 2022, under Sections 419, 420, 114 IPC and Sections 7/13 Prevention of Corruption Act, Police Station-Cantt., District-Ayodhya during the pendency of trial.

4. It transpires from record that selections for Defence Security Core, 2022-23 were being conducted at Ayodhya. An unknown caller made a telephone call to the Commanding Officer Ayodhya Cantt. which was received by Colonel Rajeev Singh, YSM, Commandant Dogra Regimental Center, Ayodhya on 16.10.2022. It was disclosed by the unknown caller that large scale bribery is being settled for selections in the Defence Security Core 2022-23. Immediately, thereafter an enquiry was undertaken by the Army. During the course of enquiry, names of Liyakat Ali and Janakraj came to surface. They were, accordingly, arrested by the military police. Recovery to the tune of Rs. 14,00,000/- was made from Liyakat Ali and a sum of Rs. 3,00,000/- was recovered from Janakraj. During course of investigation, they disclosed the name of the other three accused namely (1) Kuldeep Singh, (2) Hawaldar Nursing Assistant Jitendra Kumar Verma and (3) Hawaldar Clerk Parikshit Pal. It was also gathered from the statement of Kuldeep Singh that a sum of Rs. 34,00,000/- has already been paid to an unknown person who had made a call on the mobile phone of Kuldeep Singh, Liyakat Ali and Janakraj. Subsequently, this unknown caller was identified as Hawaldar Clerk Parikshit Pal.

5. Record shows that an FIR dated 25.10.2022 was lodged by first informant Sudhir Kumar Yadav and was registered as Case Crime No. 354 of 2022, under Sections 419, 420 IPC and Sections 8/13 Prevention of Corruption Act, Police Station-Cantt., District-Ayodhya. In the aforesaid F.I.R. 5 persons namely - (1) Liyakat Ali, (2) Jitendra Kumar Verma, (3) Parikshit Pal, (4) Kuldeep Singh and (5) Janakraj have been nominated as named accused.

6. The gravamen of the allegations made in the FIR is to the effect that named accused have connived together for arranging bribe to be paid to the officials of the Indian Army in the matter relating to selection of ex-army personnel in the Defence Security Core. The FIR further records that recoveries have been made from the following persons - (i) Liyakat Ali, (ii) Janak Raj and (iii) Jitendra.

7. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. During course of investigation, Investigating Officer examined the first informant Major Sudhir Kumar Yadav and other witnesses in terms of Section 161 Cr.P.C. On the basis of above as well as the recoveries made from the named accused and other material collected by the Investigating Officer during course of investigation, he came to the conclusion that prima-facie the complicity of named accused is established in the crime in question Accordingly, Investigating Officer submitted the charge sheet dated 27.10.2022, whereby named accused namely Jitendra Kumar Verma and Prikshit Pal have been charge sheeted under Sections 419, 420, 114 IPC and Sections 7/13 Prevention of Corruption Act, Liyakat Ali, Kuldeep Singh and Janak Raj have been charge sheeted under Section 114 I.P.C. and Section 8 Prevention of Corruption Act.

8. Mr. P.C. Srivastava, the learned counsel for applicants- Havaldar Nursing Assistant Jitendra Kumar Verma and Havaldar Clerk Parikshit Pal submits that applicants are innocent. They have been falsely implicated in aforementioned case crime number. Allegations made in the FIR are false and concocted. As such, applicants are being falsely prosecuted in aforementioned case crime number.

9. It is then contended that there is delay in lodging the FIR. Attention of the Court was then invited to the FIR and with reference to the same, it is urged by the learned counsel for applicants that the date and day column of the date of occurrence mentioned in the FIR is blank. However, as per the recital contained in the FIR, it is evident that the inspection was conducted on 16.10.2022 and certain recoveries were made but the FIR was lodged on 25.10.2022. As such, there is delay of almost 10 days in lodging the FIR. However, neither in the FIR nor in the statement of first informant, there is any explanation with regard to the delay in lodging the FIR. Since the delay in lodging the F.I.R. has not been explained, the prosecution of aforesaid applicants itself cannot be maintained. To buttress his submission, he has relied upon the following judgements of the Supreme Court:-

i. P. Rajagopal and other Vs. State of Tamil Nadu (2019) 5 SCC 403 ii. Hasmukhlal D. Vora and another Vs. State of Tamil Nadu, 2022 SCC OnLine SC 1732 iii. Chanchaipati Das Vs. State of West Bengal and another 2023 SCC OnLine SC 650

10. It is next contended that as per the recital contained in the FIR, no recovery has been made from applicant-Hawaldar Nursing Assistant Jitendra Kumar Verma, up to the date of lodging of the FIR. However, the recoveries are shown to have been made from applicant- Hawaldar Nursing Assistant Jitendra Kumar Verma on the following dates prior to the FIR -

(i). 19.10.2022 a sum of Rs. 51,000/- was recovered from the briefcase of applicant Jitendra Kumar Verma.

(ii) 19.10.2022 a sum of Rs. 20,49,000/- was recovered from inside the cooler installed in the official quarter of this applicant.

(iii) 22.10.2022, a sum of Rs. 9,40,000/- was recovered from the flour sack kept in the kitchen of aforesaid applicant.

Thus a total sum of Rs. 30,40,000/- is said to have been recovered from applicant Jitendra Kumar. The said recovery has been doubted by the learned counsel for applicants on the ground that there is no averment regarding the recoveries made from the applicant or on his pointing out in the FIR. It is then submitted that the said recoveries have not been made by the police. There is no statement of the first informant in his statement before Investigating Officer regarding the recoveries alleged to have been made from this applicant. It is lastly contended that there is no independent witness of recovery nor there is any recovery memo regarding the same.

11. According to Mr. P.C. Srivastava, the learned counsel for applicant- Hawaldar Nursing Assistant Jitendra Kumar Verma is currently serving the Indian Army. However, in the entire case diary, there is no material indicating the fact that applicant ever demanded any money from any of the candidates. He, therefore, contends that since the acid test of "Demand and Acceptance" as explained by the Constitution Bench judgment in Neeraj Dutta Vs. State (NCT of Delhi) 2022 OnLine SC 1724 (paragraph 68), which is required to be satisfied for invoking the provisions of Section 7 of the Prevention of Corruption Act, is not satisfied against the applicant upto this stage, as such, prima-facie no offence under section 7 of the Prevention of Corruption Act is made out against applicant.

12. It is further submitted that even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 25.10.2022. As such, he has undergone more than 7 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail. The charge sheet having been submitted, therefore, the evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such material has emerged on the basis of which, it can be urged that custodial arrest of applicant is absolutely necessary during the pendency of trial. Reference has also been made to the judgment of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5). Apart from above, no sanction has yet been accorded by the competent authority in terms of Section 19 of the P.C. Act. In the absence of the sanction, prosecution of the applicant cannot proceed. Applicant cannot be held responsible for the delay in the grant of sanction, if any. On the above conspectus, he, therefore, contends that applicant is liable to be enlarged on bail. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail.

13. In respect of accused Havaldar Clerk Parikshit Pal, the learned counsel for applicant contends that no recovery has been made from this applicant. The name of the applicant has surfaced in the enquiry conducted by the Army Personnel upon a phone call by an unknown person, who is alleged to have disclosed that large scale bribe has been collected to facilitate the re-enrolment of ex-army man in Defence Security Core. It is on this information that the Indian Army initiated enquiry. During the course of enquiry the names of Liyakat Ali and Janak Raj came to surface. They were, accordingly, arrested by the military police. A sum of Rs. 14 Lakhs was recovered from Liyakat Ali. The name of the applicant has emerged in the statement of co-accused Liyakat Ali and Kuldeep Singh, during the course of integrations.

14. On the above premise, he contends that the proseuction story insofar as it relates to the present applicant is based upon suspicion and confession of co-accused.

15. According to the learned counsel for applicant, applicant Jitendra Kumar was not holding any such post, on the basis of which, he could have helped the prospective candidates in their selection in the Defence Security Core. No recovery has been made from this applicant either. As such prima-facie no offence under Section 7 of the P.C. Act can be said to have been committed by this applicant.

16. According to the learned counsel for applicant, the applicant- Havaldar Clerk Parikshit Pal is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 25.10.2022. As such, he has also undergone 7 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail. The charge sheet having been submitted, therefore, the evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such material has emerged on the basis of which, it can be urged that custodial arrest of applicant is absolutely necessary during the pendency of trial. Apart from above, no sanction has yet been accorded by the competent authority in terms of Section 19 of the P.C. Act. In the absence of the sanction, prosecution of the applicant cannot proceed. Applicant could not be held responsible for the delay in the grant of sanction, if any. On the above premise, he, therefore, contends that applicant is liable to be enlarged on bail. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail.

17. Mr. Mohit Singh, the learned counsel for applicant-Janakraj contends that applicant is innocent. Allegations made against applicant in the FIR are false and concocted. As such, applicant is being falsely prosecuted in aforementioned case crime number.

18. It is then contended by the learned counsel for applicant that applicant is an Ex- Army Personnel, therefore, prima-facie the provisions of the P.C. Act are not applicable to him. The incident giving rise to the present criminal proceedings is not the outcome of an act of applicant, if any, during course of his employment in Indian Army.

19. It is next contended that up to this stage, there is nothing on record to show that any demand was made by this applicant from any of the prospective candidates. He, therefore, contends that since there was no demand made by applicant from any of the prospective candidates, the acid test of "Demand and Acceptance" as explained by the Constitution Bench in Neeraj Dutta Vs. State (NCT of Delhi) 2022 OnLine SC 1724 (paragraph 68) is not attracted in the present case with regard to the recovery made from the applicant. Learned counsel for applicant contends that it is true that a sum of Rs. 3,00,000/- was recovered from applicant but mere possession of money by itself will not amount to an offence under Section 7 of the P.C. Act. It is also not the case of the prosecution that money was given to the applicant by different prospective candidates on his demand.

20. However, the learned counsel for applicant fairly contends that the recovery made from the applicant was not in respect of the amount belonging to him alone but also the payments of other prospective candidates which was kept by him. At this juncture, the learned counsel for applicant submits that though the money was retained by the applicant which of course was to be paid as bribe but was not actually paid and therefore, no offence under Section 7 of the P.C. Act can be said to have been committed by applicant. At the most, applicant is an abettor in the commission of the crime. With reference to Section 107 of the Evidence Act, learned counsel for applicant submits that abetment is a question of fact and it can be proved only during the course of trial.

21. Mr. Mohit Singh, the learned counsel for applicant-Janakraj has then referred to the Division Bench judgment in N eha Vs. State of U.P., 1992 SCC OnLine All 871. On basis thereof, he submits that though the bail application of co-accused Kuldeep Singh has been rejected by this Court, vide order dated 03.01.2023, but that by itself cannot be taken as a ground to reject the bail application of applicant-Janakraj.

22. On the above premise, the learned counsel for applicant submits that applicant-Janakraj is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 25.10.2022. As such, he has also undergone 7 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail. The charge sheet having been submitted, therefore, the evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such material has emerged on the basis of which, it can be urged that custodial arrest of applicant is absolutely necessary during the pendency of trial. On the basis of above, he, therefore, contends that applicant is liable to be enlarged on bail. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail.

23. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that the bail application of co-accused Kuldeep Singh, who has been charge sheeted along with Liyakat Ali and Janakraj under Section 114 IPC and Section 8 PC Act has already been rejected by this Court vide order dated 03.01.2023 passed in Criminal Misc. Bail Application No. 60007 of 2022 (Kuldeep Singh Vs. State of U.P.). For ready reference, the same is re-produced hereinunder:-

"1. Heard and gone through the file.

2. The present bail application under Section 439 CrPC has been filed seeking bail in Case Crime No.354 of 2022 under Section 419, 420, 114 IPC and Section 8 Prevention of Corruption Act, 1988, P.S. Cantt District Ayodhya.

3. The prosecution story, in brief, is that the accused appellant and other co-accused demanded and accepted Rs.50,000/- from Ex-Army Personnel for their recruitment in Defence Service Code. Having received this information, inquiries were made. Rs. 17 lacs were recovered from co-accused. This Rs.1 lacs was allegedly given to the accused applicant who is an Ex- Hawaldar in Indian Army. During interrogation, the accused applicant confessed that he had earlier collected Rs.34 lacs from 68 such Ex-Army personnel for securing their recruitment in DSC.

4. Learned counsel for the applicant submits that all offences under IPC have not been found to be proved during the course of investigation and he has been chargesheeted only under relevant Sections of Prevention of Corruption Act.

5. Considering the gravity of offence, evidence available against the accused applicant and the fact that he allegedly secured employment of Ex-Army personnel after accepting and collecting bribe, this Court does not deem it appropriate to enlarge the applicant on bail and therefore, the bail application is rejected.

6. However, the applicant may revive his bail plea after witnesses of fact get examined.

7. The learned trial Court is directed to proceed with the case expeditiously and record statement of the witnesses of fact within six months from today."

He, therefore, submits that applicants, who are co-accused and the criminality committed by applicants is joint and common, therefore, same is incapable of being separated or segregated coupled with the fact that bail application of one of the charge sheeted accused who has been charge sheeted under Section 114 IPC and Section 8 PC Act has already been rejected. As such, no exception can be carved out in the case of present applicants either. Consequently, the bail applications are liable to be rejected.

24. It is then contended by the learned A.G.A. that the occurrence giving rise to present criminal proceedings has occurred inside the Ayodhya Cantonment. Therefore, by virtue of above, no investigation could have been made by the police within the premises of the Ayodhya Cantonment. The recoveries have been made from the named accused by the Military Police. The details of the same are as under:

i. Recovery made from accused Havaldar Nursing Sahayak Jitendra Kumar Verma. On 19.10.2022 Rs. 51,000/- was recovered from the briefcase of this accused. On 19.10.2022, another recovery of Rs. 20,49,000/- was made from the inside the cooler installed in the official quarter of this applicant. On 22.10.2022, a sum of Rs. 9, 40,000/- was recovered from the flour sack kept inside the kitchen.

ii. Recovery made from accused Liyakat Ali - a sum of Rs. 14 Lakhs was recovered from this accused on 16.10.2022.

iii. Recovery made from Janakraj - a sum of Rs. 3,00,000/- was recovered from this accused from the official accommodation given to this accused, as he had also applied and appeared for selection in Defence Security Core.

25. According to the learned A.G.A., aforesaid recoveries were made by the Military Police on the basis of information received by them either before the lodging of the F.I.R. or subsequent to the F.I.R. As such, the said recoveries cannot be doubted. There is nothing on record to infer malice against the first informant, Major Sudhir Kumar Yadav. Learned A.G.A. has then invited the attention of Court to the statement of the first informant as recorded under Section 161 Cr.P.C., wherein this witness has duly supported the recoveries made from Liyakat Ali and Janak Raj. The recovery of money from co-accused Hawaldar Nursing Assistant Jitendra Kumar was made on 19.10.2022 and 22.10.2022 by one Captain Rais Ahmad alongwith his team. Captain Rais Ahmad was also examined by the Investigating Officer under Section 161 Cr.P.C. who has supported the recoveries so made by him. This witness has categorically stated in his statement that the amount so recovered from aforesaid accused was not handed over to the police as accused-Jitendra Kumar Verma, is a Military Personnel. Furthermore, since enquiry is already going on by the Army against another accused namely Hawaldar Clerk Parikshit Pal, as such, the amount so recovered was duly sealed and deposited in the quarter guard of the unit i.e. Dogra Regimental Center, Ayodhya.

26. Learned A.G.A. further contends that apart from above, the places of recovery with regard to the recoveries made from named accused Jitendra Kumar Verma, Liyakat Ali and Janak Raj cannot be doubted at this stage, as the same were made within the Ayodhaya Cantt. which is under the exclusive control of Indian Army. The recoveries made from aforesaid co-accused were in bundles of Rs. 50,000/- each with the slip giving description of the name and designation of the proposed candidates, who are all Ex-Army Men. On the above premise, the learned A.G.A. contends that the recoveries made from three of the named accused cannot be doubted at this stage.

27. On the above premise, the learned A.G.A. contends that the recoveries made from 3 accused cannot be doubted either on the ground that there was no demand, or on the ground that there is no independent witness of recovery. There is no mention of the recovery made from Hawaldar Nursing Assistant Jitendra Kumar Verma in the FIR. The said recoveries have been made by Army Personnel and within the premises of the Ayodhya Cantonment. It is also explicit from the enquiry conducted by the army itself, copies of which have been placed before this Court for perusal. There is nothing on record to show malice against the first informant either.

28. It is further contended by the learned A.G.A. that the complicity of the following persons namely - Major Shridhar Nayak, Hawaldar Satish Nursing Assistant and Nayak A.P. Mishra-Nursing Assistant had emerged in the crime in question as per the statement of the named accused Liyakat Ali, Janak Raj and Kuldeep Singh before Investigating Officer as well in the enquiry proceedings conducted by the army. Their complicity is still under investigation. The investigation in respect of the aforesaid accused is still pending.

29. According to the learned A.G.A., there is no distinction in between the case of named accused Kuldeep Singh and named accused Janak Raj. They stand on the same footing. In the submission of the learned A.G.A. even an abettor is liable to be punished under the P.C. Act by virtue of the provisions contained in Section 12 of the P.C. Act. Learned A.G.A. further submits that a telephone call from an unknown caller at the army headquarter at Ayodhya Cantt. was received by Colonel Rajeev Singh, YSM, Commandant, Dogra Regiment Centre on 16.10.2022, who disclosed that large scale bribery is being demand in the selection for Defence Security Core, 2022-23. It is thereafter, enquiry was ordered on 16.10.2022. During the course of enquiry, the names of the named accused surfaced and they were arrested. Recoveries were also made from some of the named accused by the military police as detailed above. Therefore, the recoveries which have been made by military police cannot be doubted with reference to the submissions made by Mr. P.C. Srivastava and Mr. Mohit Singh to the effect that (i) that there is no mention of recovery made from co-accused Hawaldar Nursing Assitant Jitendra Kuma Verma in the FIR.

(i) Liyakat Ali, (2) Jitendra Kumar Verma, (3) Parikshit Pal, (4) Kuldeep Singh and (5) Janakraj were taken to the police station and handed over to the police but the recoveries made from the named accused Liyakat Ali and Janak Raj was brought by another vehicle by Subedar Ravi Thakar from the quarter guard of Dogra Regimental Centre, Ayodhya and handed over to the police. Simply because there is no mention of the same in the statement of Major Sudhir Kumar Yadav or the absence of the microscopic details regarding the same cannot lead to the inference that the recovery is doubtful.

(ii) He, further suhmits that recoveries have been made by Captain Raheesh Ahmad Khan, who has supported the same in his statement under Section 161 Cr.P.C. before the Investigating Officer.

(iii) Up to this stage, nothing has been brought on record on the basis of which malice can be inferred against the army personnel.

(iv) On the above premise, the learned A.G.A. contends that since the act of the applicant is not only illegal but also immoral and relates to perpetuating illegal selections in the Defence Services Core, applicants do not deserve any indulgence by this Court.

(v) Therefore, considering the nature and gravity of offence, the larger public interest, the law laid down by the Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5) is not attracted in the present case. As such, all the bail applications are liable to be rejected.

(vi) Learned A.G.A. has then invited the attention of Court to the call details an on basis thereof, he submits that the call detail report of all the named accused were obtained by the Investigating Officer. As per the said call detail report, connectivity of 3 of the named accused namely - (i) Liyakat Ali, (ii) Janakraj and (iii) Parikshit Pal is clearly established.

30. Having heard, Mr. P.C. Srivastava, the learned counsel for applicants- Havaldar Nursing Assistant Jitendra Kumar Verma and Havaldar Clerk Parikshit Pal, Mr. Mohit Singh, the learned counsel for applicant-Janakraj, the learned A.G.A. for State, upon perusal of record, evidence, complicity of applicants, accusations made and coupled with the fact that this Court finds that the bail application of named accused Kuldeep Singh has already been rejected by this Court, vide order dated 03.01.2023, criminality committed by named accused is joint and common and therefore, incapable of separation or segregation, the FIR was lodged by Major Sudheer Kumar Yadav and up to this stage, there is nothing to infer malicious prosecution of applicants at the behest of the first informant, the recoveries made from the applicants cannot be doubted at this stage, for the facts and reasons noted above, at this stage, it cannot be said that abettment is not established against applicant-Janakraj but without making any comments on the merits of the case, this Court does not find any good ground to enlarge the applicants on bail.

31. In view of above, these applications fail and are liable to be rejected.

32. They are accordingly rejected.

Order Date :- 14.06.2023"

5. Learned counsel for applicant contends that subsequent to above order dated 14.06.2023, one of the co-accused anemly Janakraj approached this Court by means of repeat application for bail, which was registered as Criminal Misc. Bail Application NO. 19790 of 2024 (Janakraj Vs. State of U.P.). The said application was allowed vide order dated 05.07.2024, which reads as under:

" 1. Heard Mr. Mohit Singh, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This repeat application for bail has been filed by applicant Janakraj seeking his enlargement on bail in Case Crime No. 354 of 2022, under section 114 IPC and Section 8 of Prevention of Corruption Act, Police Station- Cantt. District- Ayodhya during the pendency of trial.

4. The first bail application of applicant was rejected along with bail applications of co-accused by a detailed order dated 14.6.2023, passed in Criminal Misc. Bail Application No. 53317 of 2022 (Havaldar Nursing Sahayak Jitendra Kumar Verma Vs. State of U.P) along with two other connected matters. For ready reference, the same is reproduced herein under:

"1. Heard Mr. P.C. Srivastava, the learned counsel for applicants- Havaldar Nursing Assistant Jitendra Kumar Verma and Havaldar Clerk Parikshit Pal, Mr. Mohit Singh, the learned counsel for applicant-Janakraj and the learned A.G.A. for State.

2. Perused the record.

3. These applications for bail have been filed by aforementioned applicants seeking their enlargement on bail in Case Crime No. 354 of 2022, under Sections 419, 420, 114 IPC and Sections 7/13 Prevention of Corruption Act, Police Station-Cantt., District-Ayodhya during the pendency of trial.

4. It transpires from record that selections for Defence Security Core, 2022-23 were being conducted at Ayodhya. An unknown caller made a telephone call to the Commanding Officer Ayodhya Cantt. which was received by Colonel Rajeev Singh, YSM, Commandant Dogra Regimental Center, Ayodhya on 16.10.2022. It was disclosed by the unknown caller that large scale bribery is being settled for selections in the Defence Security Core 2022-23. Immediately, thereafter an enquiry was undertaken by the Army. During the course of enquiry, names of Liyakat Ali and Janakraj came to surface. They were, accordingly, arrested by the military police. Recovery to the tune of Rs. 14,00,000/- was made from Liyakat Ali and a sum of Rs. 3,00,000/- was recovered from Janakraj. During course of investigation, they disclosed the name of the other three accused namely (1) Kuldeep Singh, (2) Hawaldar Nursing Assistant Jitendra Kumar Verma and (3) Hawaldar Clerk Parikshit Pal. It was also gathered from the statement of Kuldeep Singh that a sum of Rs. 34,00,000/- has already been paid to an unknown person who had made a call on the mobile phone of Kuldeep Singh, Liyakat Ali and Janakraj. Subsequently, this unknown caller was identified as Hawaldar Clerk Parikshit Pal.

5. Record shows that an FIR dated 25.10.2022 was lodged by first informant Sudhir Kumar Yadav and was registered as Case Crime No. 354 of 2022, under Sections 419, 420 IPC and Sections 8/13 Prevention of Corruption Act, Police Station-Cantt., District-Ayodhya. In the aforesaid F.I.R. 5 persons namely - (1) Liyakat Ali, (2) Jitendra Kumar Verma, (3) Parikshit Pal, (4) Kuldeep Singh and (5) Janakraj have been nominated as named accused.

6. The gravamen of the allegations made in the FIR is to the effect that named accused have connived together for arranging bribe to be paid to the officials of the Indian Army in the matter relating to selection of ex-army personnel in the Defence Security Core. The FIR further records that recoveries have been made from the following persons - (i) Liyakat Ali, (ii) Janak Raj and (iii) Jitendra.

7. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. During course of investigation, Investigating Officer examined the first informant Major Sudhir Kumar Yadav and other witnesses in terms of Section 161 Cr.P.C. On the basis of above as well as the recoveries made from the named accused and other material collected by the Investigating Officer during course of investigation, he came to the conclusion that prima-facie the complicity of named accused is established in the crime in question Accordingly, Investigating Officer submitted the charge sheet dated 27.10.2022, whereby named accused namely Jitendra Kumar Verma and Prikshit Pal have been charge sheeted under Sections 419, 420, 114 IPC and Sections 7/13 Prevention of Corruption Act, Liyakat Ali, Kuldeep Singh and Janak Raj have been charge sheeted under Section 114 I.P.C. and Section 8 Prevention of Corruption Act.

8. Mr. P.C. Srivastava, the learned counsel for applicants- Havaldar Nursing Assistant Jitendra Kumar Verma and Havaldar Clerk Parikshit Pal submits that applicants are innocent. They have been falsely implicated in aforementioned case crime number. Allegations made in the FIR are false and concocted. As such, applicants are being falsely prosecuted in aforementioned case crime number.

9. It is then contended that there is delay in lodging the FIR. Attention of the Court was then invited to the FIR and with reference to the same, it is urged by the learned counsel for applicants that the date and day column of the date of occurrence mentioned in the FIR is blank. However, as per the recital contained in the FIR, it is evident that the inspection was conducted on 16.10.2022 and certain recoveries were made but the FIR was lodged on 25.10.2022. As such, there is delay of almost 10 days in lodging the FIR. However, neither in the FIR nor in the statement of first informant, there is any explanation with regard to the delay in lodging the FIR. Since the delay in lodging the F.I.R. has not been explained, the prosecution of aforesaid applicants itself cannot be maintained. To buttress his submission, he has relied upon the following judgements of the Supreme Court:-

i. P. Rajagopal and other Vs. State of Tamil Nadu (2019) 5 SCC 403 ii. Hasmukhlal D. Vora and another Vs. State of Tamil Nadu, 2022 SCC OnLine SC 1732 iii. Chanchaipati Das Vs. State of West Bengal and another 2023 SCC OnLine SC 650

10. It is next contended that as per the recital contained in the FIR, no recovery has been made from applicant-Hawaldar Nursing Assistant Jitendra Kumar Verma, up to the date of lodging of the FIR. However, the recoveries are shown to have been made from applicant- Hawaldar Nursing Assistant Jitendra Kumar Verma on the following dates prior to the FIR -

(i). 19.10.2022 a sum of Rs. 51,000/- was recovered from the briefcase of applicant Jitendra Kumar Verma.

(ii) 19.10.2022 a sum of Rs. 20,49,000/- was recovered from inside the cooler installed in the official quarter of this applicant.

(iii) 22.10.2022, a sum of Rs. 9,40,000/- was recovered from the flour sack kept in the kitchen of aforesaid applicant.

14. On the above premise, he contends that the proseuction story insofar as it relates to the present applicant is based upon suspicion and confession of co-accused.

"1. Heard and gone through the file.

2. The present bail application under Section 439 CrPC has been filed seeking bail in Case Crime No.354 of 2022 under Section 419, 420, 114 IPC and Section 8 Prevention of Corruption Act, 1988, P.S. Cantt District Ayodhya.

3. The prosecution story, in brief, is that the accused appellant and other co-accused demanded and accepted Rs.50,000/- from Ex-Army Personnel for their recruitment in Defence Service Code. Having received this information, inquiries were made. Rs. 17 lacs were recovered from co-accused. This Rs.1 lacs was allegedly given to the accused applicant who is an Ex- Hawaldar in Indian Army. During interrogation, the accused applicant confessed that he had earlier collected Rs.34 lacs from 68 such Ex-Army personnel for securing their recruitment in DSC.

4. Learned counsel for the applicant submits that all offences under IPC have not been found to be proved during the course of investigation and he has been chargesheeted only under relevant Sections of Prevention of Corruption Act.

5. Considering the gravity of offence, evidence available against the accused applicant and the fact that he allegedly secured employment of Ex-Army personnel after accepting and collecting bribe, this Court does not deem it appropriate to enlarge the applicant on bail and therefore, the bail application is rejected.

6. However, the applicant may revive his bail plea after witnesses of fact get examined.

7. The learned trial Court is directed to proceed with the case expeditiously and record statement of the witnesses of fact within six months from today."

i. Recovery made from accused Havaldar Nursing Sahayak Jitendra Kumar Verma. On 19.10.2022 Rs. 51,000/- was recovered from the briefcase of this accused. On 19.10.2022, another recovery of Rs. 20,49,000/- was made from the inside the cooler installed in the official quarter of this applicant. On 22.10.2022, a sum of Rs. 9, 40,000/- was recovered from the flour sack kept inside the kitchen.

ii. Recovery made from accused Liyakat Ali - a sum of Rs. 14 Lakhs was recovered from this accused on 16.10.2022.

iii. Recovery made from Janakraj - a sum of Rs. 3,00,000/- was recovered from this accused from the official accommodation given to this accused, as he had also applied and appeared for selection in Defence Security Core.

(i) Liyakat Ali, (2) Jitendra Kumar Verma, (3) Parikshit Pal, (4) Kuldeep Singh and (5) Janakraj were taken to the police station and handed over to the police but the recoveries made from the named accused Liyakat Ali and Janak Raj was brought by another vehicle by Subedar Ravi Thakar from the quarter guard of Dogra Regimental Centre, Ayodhya and handed over to the police. Simply because there is no mention of the same in the statement of Major Sudhir Kumar Yadav or the absence of the microscopic details regarding the same cannot lead to the inference that the recovery is doubtful.

(ii) He, further suhmits that recoveries have been made by Captain Raheesh Ahmad Khan, who has supported the same in his statement under Section 161 Cr.P.C. before the Investigating Officer.

(iii) Up to this stage, nothing has been brought on record on the basis of which malice can be inferred against the army personnel.

(iv) On the above premise, the learned A.G.A. contends that since the act of the applicant is not only illegal but also immoral and relates to perpetuating illegal selections in the Defence Services Core, applicants do not deserve any indulgence by this Court.

(v) Therefore, considering the nature and gravity of offence, the larger public interest, the law laid down by the Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5) is not attracted in the present case. As such, all the bail applications are liable to be rejected.

(vi) Learned A.G.A. has then invited the attention of Court to the call details an on basis thereof, he submits that the call detail report of all the named accused were obtained by the Investigating Officer. As per the said call detail report, connectivity of 3 of the named accused namely - (i) Liyakat Ali, (ii) Janakraj and (iii) Parikshit Pal is clearly established.

31. In view of above, these applications fail and are liable to be rejected.

32. They are accordingly rejected."

5. Subsequently, above order dated 14.6.2023 was corrected vide order 12.7.2023, the same is extracted herein under:

"Order on the correction application no. 1 of 2023

1. This correction application has been filed by applicant Janakraj seeking correction in the order dated 14.6.2023.

2. Learned counsel for applicant submits that it is the case of prosecution that certain recovery was made from the applicant. However this Court in the above order in eighth and ninth line of paragraph 19 has inadvertently not mentioned the word alleged regarding the recoveries shown from the applicant. Similarly in the second line of paragraph 20 of the order, the word allegedly has escaped the attention of this Court.

3. He, therefore, submits that aforesaid omission occurring in the above order dated 14.6.2023 be corrected accordingly.

4. Per contra, the learned A.G.A. has opposed this correction application. He submits that recovery was made from the applicant by the Military Police and secondly an argument was also raised that since the factum of demand could not be established, therefore, the recovery from applicant itself will not establish the offence under Section 7 of the P.C. Act. He therefore submits that the correction application is misconceived.

5. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that the correction prayed for is misconceived. Whether recovery was made or not it subject to trial evidence. Since an argument was made by the learned counsel for applicant that in absence of demand recovery by itself will not establish the offence under Section 7 of the P.C. Act, therefore, the correction prayed for is refused.

6. Applicant shall be at liberty to challenge the recovery during the course of trial.

7. With the aforesaid observation, the correction application is, accordingly, disposed of. "

6. Learned counsel for applicant contends that applicant has been charge sheeted under section 114 IPC and Section 8 of Prevention of Corruption Act, Police Station- Cantt. District Ayodhya, vide charge sheet dated 22.12.2022. However, in respect of other charge sheeted co-accused, no prosecution sanction as required, under section 197 Cr.P.C./Section 19 of Prevention of Corruption Act has not been accorded till date. Consequently, no cognizance could be taken by Court below in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. upon aforesaid charge sheet. As such, the trial of the applicant has not commenced till date. Attention of the Court was then invited to the judgement of Supreme Court in A.R. Antulay Vs. R.S. Nayak, 1992 (1) SCC 225 and on basis thereof, it is urged by the learned counsel for applicant that right to speedy trial is now recognized as a fundamental right of accused. The aforesaid fundamental right of accused/applicant stands infringed on account of the lackadaisical approach of the prosecution in pursuing the trial. Applicant cannot be held responsible for the delay in the commencement of the trial. To the contrary, the trial of applicant has not proceeded on account of indifferent attitude of the prosecution in pursuing the trial. As such, the applicant is liable to be enlarged on bail.

7. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 25.10.2022. As such, he has undergone more than one years and eight months of incarceration. Admittedly, applicant is not a Government Servant. Furthermore, as per material on record, the only evidence that has come on the record against the applicant is that bribe was to be offered by applicant to a Government Servant but the actual act of giving bribe by the applicant has not taken place. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. Since most of the prosecution witnesses are government servant, therefore, in case, the applicant is enlarged on bail then in that eventuality it cannot be said that applicant shall tamper the evidence. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.

8. Per contra, the learned A.G.A. for State has opposed the present application for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Considering the facts and circumstances of the case as well as the nature and gravity of offence, this repeat application for bail is therefore, liable to be rejected. However, learned A.G.A. could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to the record at this stage.

9. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant on 22.12.2022, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, in view of the new circumstance that has emerged, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the applicant is in jail since 25.10.2022, as such, he has undergone more than 1 year and 8 months of incarceration, the requisite sanction in terms of Section 197 Cr.P.C./Section 19 of Prevention of Corruption Act has not yet been accorded, consequently, no cognizance could be taken by Court below upon the police report submitted in terms of Section 173(2) Cr.P.C., since applicant is in custody, therefore, he cannot be held responsible for the delay in the progress of trial, the prosecution of applicant and other charge sheeted co-accused has not yet proceeded with on account of the requisite prosecution sanction not having been accorded by authority concerned in favour of co-accused, as such, the ratio laid down by Apex Court in A.R. Antulay (Supra) that right to speedy trial is a fundamental right of an accused stands infringned in the present case, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present repeat application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

10. Accordingly, this repeat application for bail is Allowed.

11. Let the applicant Janakraj, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

12. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 5.7.2024"

6. Learned counsel for applicant contends that one of the co-accused namely Havaldar Nurshing Sahayat Jitendra Kumar approached this Court by means of repeat application for bail, which was registered as Criminal Misc. Bail Application No. 9940 of 2024 (Havaldar Nurshing Sahayat Jitendra Kumar Verma Vs. State of U.P.). The said application was also allowed vide order dated 05.07.2024. Another co-accused namely Kuldeep Singh, who again approached this Court by means of a repeat application for bail, was also enlarged on bail by this Court vide order dated 09.07.2024 passed in Criminal Misc. Bail Application No. 34574 of 2023 (Kuldeep Singh Vs. State of U.P.)

7. On the above premise, the learned counsel for applicant contends that case of present applicant is similar and identical to that of aforementioned charge sheeted but bailed out co-accused. There is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforesaid bailed out co-accused so as to deny him bail. On the above premise, the learned counsel for applicant contends that in view of above and for the facts and reasons recorded in the bail orders of co-accused, applicant is also liable to be enlarged on bail on the ground of parity.

8. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 25.10.2022. As such, he has undergone more than one year and ten months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the cumulative strength of above, he thus submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

9. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheeted accused therefore he does not deserve any indulgence by this court. According to the learned A.G.A., since the statements of all the prosecution witnesses have not been recorded before court below as yet, therefore, no good ground is made out to enlarge the applicant on bail. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

10. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, coupled with the fact that in case applicant is enlarged on bail, then in that eventuality it cannot be said that he shall either terrorize the witnesses or shall hamper the course of trial, therefore no useful purpose shall be served in prolonging the custodial arrest of applicant during the course of trial, charge sheet (police report) in terms of Section 173 (2) Cr.P.C has already been submitted against applicant therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet in spite of above, no such incriminating circumstance could be pointed out by learned the A.G.A. from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 6), the clean antecedents of applicant, the period of incarceration undergone, therefore irrespective of the objections raised by learned A.G.A. in opposition to present repeat application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

11. Accordingly, present repeat application for bail is allowed.

12. Let the applicant-Havaldar Clerk Parikshit Pal involved in aforesaid case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) Applicant will not tamper with prosecution evidence.

(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

13. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison.

Order Date :- 2.9.2024 YK

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