AFR
Court No. - 79 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41890 of
2022
Applicant :- Ramesh Prasad
Opposite Party :- State of U.P.
Counsel for Applicant :- Krishna Datta Tiwari
Counsel for Opposite Party :- G.A.
Hon'ble Subhash Vidyarthi J.
1. Heard Sri Krishna Datta Tiwari, the learned counsel for the applicant, Sri Jitendra Kumar Jaiswal, the learned Additional Government Advocate and perused the record.
2. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 516 of 2017, under Sections 419, 420, 467, 468, 471 IPC Section 3/9 of U.P. Public Examinations (Prevention of Unfair Means) Act, 1998, Police Station Belipur, District Gorakhpur during pendency of the trial in the Court below.
3. The aforesaid case has been registered on the basis of an F.I.R. lodged against three named accused persons alleging that during examination for recruitment on the post of Sub Inspector, in place of applicant one Abhisek Ranjan was appearing and it is alleged that the other co-accused Dr. Awdhesh had asked him to appear in place of the applicant and that he had promised that he would get Rs.20,000/- for this job.
4. The applicant had moved an application before the Sessions Judge for his release on bail in the aforesaid case but the learned Additional Sessions (Prevention of Corruption Act), Court No. 5, Gorakhpur has rejected the application by means of an order dated 09-09-2022 on the ground that the applicant has been named in the F.I.R. and from the investigation carried out and the evidence collected by the
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Investigating Officer, the offence appears to be of a serious nature and there is a possibility that in case the applicant is released on bail, he may tamper with the evidence.
5. In the affidavit filed in support of the bail application filed in this Court, it has been stated that the applicant is innocent and he has been falsely implicated in the present case and that he has no criminal history.
6. The learned counsel for the applicant has submitted that the other co- accused persons Abhisek Ranjan and Dr. Awdhesh Kumar Bharti have been granted bail by means of orders dated 19.02.2018 and 22.05.2018 passed by this Court in Criminal Misc. Bail Application Nos. 5875 of 2018 and 19083 of 2018 respectively.
7. Before proceeding to decide the application for grant of bail, it would be apt to refer to the law regarding consideration of an appli- cation of bail with reference to some of the precedents on the point. In Satender Kumar Antil v. CBI, (2021) 10 SCC 773, the Hon'ble Supreme Court was pleased to lay down the following guidelines for considering the bail applications:—
"3…..The guidelines are as under:
Categories/Types of Offences
A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.
B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.
D) Economic offences not covered by Special Acts.
REQUISITE CONDITIONS
1) Not arrested during investigation.
2) Cooperated throughout in the investigation including ap- pearing before Investigating Officer whenever called. (No need to forward such an accused along with the chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615)
CATEGORY A
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After filing of chargesheet/complaint taking of cognizance
a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
b) If such an accused does not appear despite service of sum- mons, then Bailable Warrant for physical appearance may be issued.
c) NBW on failure to failure to appear despite issuance of Bail- able Warrant.
d) NBW may be cancelled or converted into a Bailable War- rant/Summons without insisting physical appearance of ac- cused, if such an application is moved on behalf of the ac- cused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
e) Bail applications of such accused on appearance may be de- cided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided. * * *
8. In the final judgment passed in the aforesaid case Satender Kumar Antil v. CBI, reported in 2022 SCC OnLine SC 825, the Hon'ble Supreme Court held that: -
"11. The principle that bail is the rule and jail is the excep- tion has been well recognised through the repetitive pro- nouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India. This court in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, held that:
"19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], the purpose of granting bail is set out with great fe- licity as follows : (SCC pp. 586-88, paras 27-30)
"27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re [Na- gendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476 : 1924 Cri LJ 732], AIR pp. 479-80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his tri- al and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the
"Meerut Conspiracy cases" observations are to be found re-
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garding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931 All 504 : 1932 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preced- ing Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exer- cised judiciously. In Emperor v. H. L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271], it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having re- gard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely clas- sified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be grant- ed but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Proce- dure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly de- fend himself than if he were in custody. As a presumably in- nocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. State, (1978) 1 SCC 240:
'1. … the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a de- veloped jurisprudence of bail is integral to a socially sensitised judicial process. … After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of
"procedure established by law". The last four words of Article 21 are the life of that human right.'
* * *
12. Further this Court in Sanjay Chandra v. CBI, (2012) 1 SCC 40, has observed that:
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"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the ap- pearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor pre- ventative. Deprivation of liberty must be considered a punish- ment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un- convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "neces- sity" is the operative test. In this country, it would be quite con- trary to the concept of personal liberty enshrined in the Consti- tution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any im- prisonment before conviction has a substantial punitive con- tent and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an uncon- victed person for the purpose of giving him a taste of impris- onment as a lesson."
13. Innocence of a person accused of an offense is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the Court. Thus, it is for that agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied.
* * *
54. We wish to place reliance on the judgment of the Bombay High Court in The Balasaheb Satbhai Merchant Co-Op Bank Ltd. v. State Of Maharashtra, 2011 SCC OnLine Bom
1261:
"13. At this stage, it may be useful to quote the observations of this Court in "Ambarish Rangshhi Patnigere v. State of Maha- rashtra" referred supra, which reads thus-
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"17. It may be noted here that the learned Counsel for inter- vener contended that the Magistrate did not have jurisdiction to grant bail because the offences under Sections 467 and 409 IPC, carry punishment which may be life imprisonment. Ac- cording to the learned Counsel, if the offence is punishable with sentence of death or life imprisonment, the Magistrate cannot grant bail under Section 437(1) Cr.P.C., unless there are special grounds mentioned therein. He relied upon certain authorities in this respect including Prahlad Sigh Bhati v. NCT, Delhi JT (2001) 4 SCC 280. In that case, offence was under Section 302 which is punishable with death sentence or life im- prisonment and is exclusively triable by Court of Sessions. The offence under Section 409 is punishable with imprisonment for life or imprisonment for 10 years and fine. Similarly, the office under Section 467 is also punishable with imprisonment for life or imprisonment for 10 years and fine. Even though the maxi- mum sentence which may be awarded is life imprisonment, as per Part I of Schedule annexed to Cr.P.C., both these offences are triable by a Magistrate of First Class. It appears that there are several offences including under sec. 326 in the Penal Code, 1860 wherein sentence, which may be awarded, is im- prisonment for life or imprisonment for lesser terms and such offences are triable by Magistrate of the First Class. If the Magistrate is empowered to try the case and pass judgment and order of conviction or acquittal, it is difficult to under- stand why he cannot pass order granting bail, which is inter- locutory in nature, in such cases. In fact, the restriction un- der Section 437(1) Cr.P.C. is in respect of those offences which are punishable with alternative sentence of death or life imprisonment. If the offence is punishable with life im- prisonment or any other lesser sentence and is triable by Magistrate, it cannot be said that Magistrate does not have jurisdiction to consider the bail application. In taking this view, I am supported by the old Judgment of Nagpur Judicial Commissioner's Court in Tularam v. King-Emperor 27 Cri LJ 1926 and also by the Judgment of the Kerala High Court in Satyan v. State Of Kerala 1981 Cri LJ 1313. In Satyan, the Kerala High Court considered several earlier judgments and observed thus in paras 7 and 8:—
* * *
It would be illogical and incomprehensible to say that the magistrate who can hold the trial and pass judgment of ac- quittal or conviction for the offences punishable with sen- tence of life imprisonment or lesser term of imprisonment, for example in offences under S. 326, 409, 467, etc., cannot con-
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sider the application for bail in such offences. In fact, it ap- pears that the restriction under Section 437(1)(a) is applicable only to those cases which are punishable with death sentence or life imprisonment as alternative sentence. It may be noted that in Prahlad Sigh Bhati (supra), in para 6, the Supreme Court held that even though there is no legal bar for a Magis- trate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of session, yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purposes of getting the relief of bail. This may be applicable to many cases, wherein the sentence, which may be awarded, is not even life imprisonment, but the offence is exclusively triable by court of Sessions for example offences punishable under Sections 306, 308, 314, 315, 316, 399, 400 and 450. Taking into consideration the legal position, I do not find any substance in the contention of Mr. Bhatt, learned Counsel for the intervener that merely because the of- fence is under Section 409 and 467 IPC, Magistrate did not have jurisdiction to hear and grant the bail.
14. It may also be useful to refer the observations of this Court in Ishan Vasant Deshmukh v. State Of Maharashtra" referred supra, which read thus—
"The observations of the Supreme Court that generally speak- ing if the punishment prescribed is that of imprisonment for life or death penalty, and the offence is exclusively triable by the Court of Sessions, the Magistrate has no jurisdiction to grant bail, unless the matter is covered by the provisos attached to section 437 of the Code. Thus, merely because an offence is punishable when imprisonment for life, it does not follow a Magistrate would have no jurisdiction to grant bail, unless of- fence is also exclusively triable by the Court of Sessions. This, implies that the Magistrate would be entitled to grant bail in cases triable by him even though punishment prescribed may extend to imprisonment for life….
55. Thus, we would like to reiterate the aforesaid position so that the jurisdictional Magistrate who otherwise has the juris- diction to try a criminal case which provides for a maximum punishment of either life or death sentence, has got ample ju- risdiction to consider the release on bail."
9. The applicant has been charged under Sections 419, 420, 467, 468,
471 IPC Section 3/9 of U.P. Public Examinations (Prevention of
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Unfair Means) Act, 1998. However, there is absolutely no allegation in the F.I.R. that the applicant had induced any person to deliver any property or to do something which might cause damage or harm to that person. Further, there is no allegation in the F.I.R. that the applicant had committed any forgery, and that too, of a valuable security or will or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security. Apparently, there is no allegation in the F.I.R. that the applicant has committed a forgery for the purposes of cheating.
10. A perusal of the F.I.R. in light of the provisions contained under Sections 419, 420, 467, 468, 471 IPC, prima facie indicates that none of the offences mentioned in the aforesaid Sections are made out against the applicant.
11. The applicant has further been charged with the commission of offence under Section 3 of U. P. Public Examinations (Prevention of Unfair Means) Act, 1998, which is punishable under Section 9 of the Act with a maximum imprisonment for three years and Section 12
(1) of the aforesaid Act provides that the offence punishable under Section 9 shall be bailable.
12. The offences under Sections 419, 420, 467, 468, 471 IPC, and Section 3 of U.P. Public Examinations (Prevention of Unfair Means) Act, 1998, are all triable by a Magistrate and, therefore, the Magistrate is empowered to grant bail in those offences.
13. The allegations levelled in the F.I.R. prima facie make out commission of an offence only under Section 3 of the U.P. Public Examinations (Prevention of Unfair Means) Act, 1998, which carries
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a maximum punishment of imprisonment for three years and which is a bailable offence and it appears that the learned Additional Sessions Judge/Special Judge has rejected the bail application without taking into consideration the provisions of the aforesaid Act.
14. Although the learned Court below has mentioned in the order that there is a possibility that in case the applicant is released on bail, he may tamper with the evidence, no ground for this apprehension can be culled out from the order or from the other material available on the record. Bail cannot be denied to a person on the ground of a mere unfounded apprehension that he may tamper with the evidence and there must be some reason for this apprehension.
15. The grant of bail to an undertrial prisoner being the rule and its denial being the exception, the Courts are expected to be more sensitive while dealing with bail applications. Moreover, when the principal offence alleged against the accused is a bailable offence, this Court does not find any justification for rejection of his bail application. The approach of the learned Court below in rejecting the bail applications in a mechanical manner, without even considering that from a bare perusal of the F.I.R. the only offence which is prima facie made out, is a bailable offence, cannot be appreciated and it needs to be changed.
16. In view of the aforesaid discussion and keeping in view the fact that (i) the main allegation against the applicant is of using unfair means in a Public Examination, which offence carries a maximum punishment of imprisonment for three months and which is a bailable offence; (ii) all the offences alleged against the applicant are triable by a Magistrate; (iii) the applicant has no criminal history and
(iv) the other co-accused persons have already been granted bail, I am of the view that the applicant is entitled to be released on bail in the present case.
17. In light of the preceding discussion and without making any
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observation on the merits of the case, the instant bail application is
allowed.
18. Let the applicant Ramesh Prasad be released on bail in Case Crime No. 516 of 2017, under Sections 419, 420, 467, 468, 471 IPC Section 3/9 of U.P. Public Examinations (Prevention of Unfair Means) Act, 1998, Police Station Belipur, District Gorakhpur on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below, subject to the following conditions:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not influence any witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.
19. In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.
Order Date :- 30.9.2022 Jaswant
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