Allahabad High Court
Rakesh Kumar Singh vs State Of U.P. on 11 May, 2012
Author: Ajai Lamba
Bench: Ajai Lamba
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 26 Case :- BAIL No. - 465 of 2012 Petitioner :- Rakesh Kumar Singh Respondent :- State Of U.P. Petitioner Counsel :- R.U. Pandey,J.P.Singh Respondent Counsel :- Govt.Advocate Hon'ble Ajai Lamba,J.
1. Applicant Rakesh Kumar Singh prays for bail in Case Crime No. 510 of 2011 under Sections 420/406/120B I.P.C., Police Station Naka Hindola, District Lucknow.
2. Learned counsel appearing for the applicant contends that the applicant is in custody since 01.10.2011. Allegation against the applicant is that the applicant introduced the alleged victims to the main accused Ajay Kumar Singh for getting them employed on payment. In this regard reference has been made to the statement of Sri Om Prakash Jaiswal recorded under Section 161 Cr.P.C. that has been placed on record as SA-2 alongwith supplementary affidavit dated 14.2.2012.
3. Learned counsel appearing for the respondent State Shri Shiv Prakash Tiwari, Additional Government Advocate has vehemently opposed the application for bail on the strength of the pleadings in para 6 of the counter affidavit on the ground that the applicant is the main accused and received money on the pretext that he would get employment to the complainant. Shri S.P.Tiwari, learned A.G.A. further states that applicant is not entitled to concession of bail on account of his antecedents. The applicant is involved in nine other cases of criminal nature. In view of the criminal history of the applicant, the application be dismissed.
4. Learned counsel appearing for the applicant states that a false case is being projected before this Court which adversely affects the administration of justice. It has been pointed out that stand of the respondent State is beyond the material collected during investigation. A reference has been made to the statement of Shri Om Prakash Jaiswal recorded under Section 161 Cr.P.C. (Annexure SA-2) wherein it has not been recorded that the applicant is the main accused or that the applicant received money for getting employment to the victim. From recital in the statement of Shri Om Prakash Jaiswal, it has been pointed out that the main accused would be Ajay Kumar Singh who took money, and not the applicant as projected by the State.
5. Learned counsel has further pointed out that a query was raised in regard to criminal history of the applicant in response to the counter affidavit that alleges criminal history of nine cases indicating involvement of the applicant. Reference has been made to Annexure SA-1 appended with second supplementary affidavit filed on behalf of the applicant dated 2.5.2012 wherein factual position has been made clear. Facts emanating from Annexure SA-1 indicate that the applicant is not an accused in four of the nine cases shown in the criminal history of the applicant in the counter affidavit filed by the State. It has also been pointed out that Annexure SA-1 is sourced from the official authorities and therefore depicts the correct factual position.
6. In the face of documents Annexure SA-2 and document SA-1 as referred to above, learned counsel appearing for the respondent State has not been able to controvert the stand of learned counsel for the applicant. Shri Tiwari, learned A.G.A. states that the facts as pleaded before this Court are on the basis of the pleadings in the counter affidavit.
7. I have considered the contention of the learned counsel for the parties and have gone through the record.
8. Considering the statement of the alleged victim Shri Om Prakash Jaiswal recorded under Section 161 Cr.P.C. (Annexure SA-2) in which allegation is only of introducing the victim to the main accused and considering the custody period of the applicant since 1.10.2011, the application for bail of applicant Rakesh Kumar Singh is allowed.
9. Bail to the satisfaction of the court concerned.
10. Before parting with the order, this Court has to record that on the basis of the pleadings,a false stand has been projected by the investigating agency before this Court. Pleadings in the counter affidavit filed through Indra Pal Singh, Sub Inspector, Police Station Naka, Lucknow appear to be against the record. While the witness in his statement Annexure SA-2 has given a different picture, the facts projected before this Court by the investigating agency have been found to be entirely different.
11. Also the criminal history as projected by the respondent State in the counter affidavit, has been found to be not based on record and correct facts.
12. The case on behalf of the investigating agency has been reflected through an affidavit sworn by a police official/public servant who is required to project correct facts before this Court. Affidavit filed by a Public Servant holding responsible position is accepted as evidence by a court of law. The narration in an affidavit filed in criminal proceedings needs to be based on facts drawn from record. While adjudicating, the facts given to the Court are to be considered. If false or misleading/non existent facts are given, the result would be injustice. It appears that the respondent State is behaving like persecutors and not prosecutors.
13. The Hon'ble Supreme Court of India has taken into account the duties of a public prosecutor in (1999) 4 SCC 602 : Hitendra Vishnu Thakur and others Vs. State of Maharashtra and others. The following has been said in relevant portion of para 23 of the judgment :-
"A public prosecutor is an important officer of the State Government and is appointed by the State under the Code of Criminal Procedure. He is not a part of the investigating agency. He is an independent statutory authority. The public prosecutor is expected to independently apply his mind to the request of the investigating agency before submitting a report to the court for extension of time with a view to enable the investigating agency to complete the investigation. He is not merely a post office or a forwarding agency. A public prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation."
14. In (1997) 7 SCC 467 : Shiv Kumar Vs.Hukam Chand & another, in relevant portion of paras 13, 15 and 16, the following has been held :-
"13..........A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. The expected attitude of the Public Prosecutor while conducting prosecution must be couched in fairness not only to the court and to the investigating agencies but to the accused as well. If an accused is entitled to any legitimate benefit during trial the Public Prosecutor should not scuttle/conceal it. On the contrary, it is the duty of the Public Prosecutor to winch it to the fore and make it available to the accused. Even if the defence counsel overlooked it, the Public Prosecutor has the added responsibility to bring it to the notice of the court if it comes to his knowledge. A private counsel, if allowed a free hand to conduct prosecution would focus on bringing the case to conviction even if it is not a fit case to be so convicted....
"15. An early decision of a Full Bench of the Allahabad High Court in Queen-Express v. Durga ( ILR (1894-96) 16 All 84 :1894 AWN7 has pinpointed the role of a Public Prosecutor as follows :
"It is the duty of Public Prosecutor to conduct the case for the Crown fairly. His object should be, not to obtain an unrighteous conviction, but, as representing the Crown, to see that justice is vindicated ; and, in exercising his discretion as to the witnesses whom he should or should not call, he should bear that in mind. In our opinion, a Public Prosecutor should not refuse to call or put into the witness box for cross-examination a truthful returned in the calendar as a witness for the Crown, merely because the evidence of such witness might in some respects be favourable to the defence. If a Public Prosecutor is of opinion that a witness is a false witness or is likely to give false testimony if put into the witness box, he is not bound, in our opinion, to call that witness or to tender him for cross-examination."
16. As we are in complete agreement with the observation of a Division Bench of the High Court of Andhra Pradesh in Medichetty Ramakistiah Vs. State of A.P : 2 AIR 1959 : 1959 Cri L.J. 1404, we deem it fit to extract the said observation :
"A prosecution, to use a familiar phrase, ought not to be a persecution. The principle that the Public Prosecutor should be scrupulously fair to the accused and present his case with detachment and without evincing any anxiety to secure a conviction, is based upon high policy and as such courts should be astute to suffer no inroad upon its integrity. Otherwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court to obtain its decision thereon and not to obtain a conviction by any means fair or foul. Therefore, it is right and proper that courts should be zealous to see that the prosecution of an offender is not handed over completely to a professional gentleman instructed by a private party."
15. In context of the law as laid down by the Hon'ble Supreme Court of India, it transpires that prima facie, the respondent State has indulged in persecuting. In the opinion of the Court, ideal practice would be for the Public Prosecutor to draft a document, on the basis of material available on record, and file it in the Court.
16. Considering both the aspects of the case, it is directed that an enquiry in the case would be held by a responsible officer to be appointed by the Secretary (Home), Government of U.P.
17. After enquiry, if the official through whom the affidavit has been filed is found to have given incorrect facts, appropriate departmental action be taken.
18. Enquiry, as directed above, be initiated within a period of ten days from the receipt of certified copy of this order and compliance report would be placed before this court within two months from the date of receiving certified copy of this order.
19. The order be conveyed to the Secretary (Home) by Sri Shiv Prakash Tewari, Additional Government Advocate, personally.
20. In future, it would be desirable that the officers working in the office of Government Advocate should personally verify the facts before the averments are made and placed before this court for consideration.
Order Date :- 11.5.2012 A.Nigam