Himanshu Kumar Vs State of U.P.

Court No. - 49

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17579 of 2023

Applicant :- Himanshu Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Ankush Yadav,Rajrshi Gupta,Sr. Advocate Counsel for Opposite Party :- G.A.,Aadesh Kumar Srivastava,Ramesh Kumar Yadav

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Hon'ble Rajeev Misra,J.

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Heard Mr. Rajrshi Gupta, the learned counsel for applicant, the learned AGA for State and Mr. Ramesh Kumar Yadav, the learned counsel representing complainant .

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Perused the record.

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This application for bail has been filed by applicant-Himanshu Kumar seeking his enlargement on bail in Case Crime No. 24 of 2023, under Section 7 Prevention of Corruption Act, 1988, Police Station Khuldabad, District Prayagraj, during the pendency of trial.

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Record shows that applicant was caught red handed by the trap team. Accordingly, Rs. 10,000/- cash were recovered from the applicant. An FIR dated 06.02.2023 was lodged by first informant Surendra Singh Yadav Incharge Trap Team and was registered as Case Crime No. 24 of 2023, under Section 7 Prevention of Corruption Act, 1988, Police Station Khuldabad, District Prayagraj. In the aforesaid FIR applicant has been nominated as the solitary named accused.

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The gravamen of the allegations made in the FIR is to the effect that subsequent to the complaint made by Dharmendra Kushwaha, a trap was laid and applicant was caught red handed by the trap team with cash of Rs. 10,000/-. The chemical

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reactions on the recovery proves the possession of money in the hands of applicant.

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Learned counsel for applicant submits that applicant is innocent. He has been falsely implicated in aforementioned Case Crime No. Allegations made in the FIR are false and concocted. As such applicant is being falsely prosecuted in aforementioned Case Crime No. 24 of 2023.

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It is next contended that applicant is working as Revenue Inspector in Nagar Nigam, Prayagraj. The alleged demand said to have been made by applicant is illussionary illegal as applicant could not grant the necessary approval regarding sanction for construction as it is beyond the scope of jurisdiction vested in him as Revenue Inspector, Nagar Nigam, Prayagraj. On the aforesaid premise he contends that the acid test which is required to be satisfied for invoking the provision of Section 7 of the Prevention of Corruption Act as explained by the Constitution Bench Judgment in Neeraj Dutta vs State (Govt.Of N.C.T.Of Delhi) (2022) SCC ON LINE SC 1724 is not satisfied against applicant up to this stage. It is lastly contended that even otherwise applicant is man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 06.02.2023, and in case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. The charge sheet has already been submitted against applicant and therefore the evidence sought to be relied upon by the prosecution against applicant stands crystalized. There is no such exceptional circumstance which warrants custodial arrest of applicant during the course of trial. He therefore submits that applicant is liable to be enlarged on bail.

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Per contra, the learned A.G.A. has opposed the present

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application for bail. He submits that applicant was caught red handed by the trap team and cash worth Rs. 10,000/- has been recovered from the possession of applicant. The result of the chemical test undertaken to prove the same is also against the applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record up to this stage.

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Mr. Ramesh Kumar Yadav, the learned counsel for informant has adopted the argument of learned AGA. However, nothing new or different has been urged by him.

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Having heard the learned counsel for applicant, the learned AGA for State, the learned counsel for complainant, and upon perusal of record, evidence, allegations made, complicity of accused coupled with the fact that though recovery has been made from the applicant to the tune of Rs. 10,000/-, which fact is also established from the chemical examination test which goes against the applicant, but in view of the judgments of the Supreme Court that mere possession of money does not amount to an offence under Section 7 of Prevention of Corruption Act, 1988, the acid test required to be established for the commission of an offence under Section 7 of Prevention of Corruption Act, 1988 as explained by the Constitution Bench noted above, prima facie not being satisfied against the applicant up to this stage, the alleged demand in respect of the work of complainants by applicant is prima facie illegal as the said work could not be accomplished by applicant being beyond his jurisdiction as Revenue Inspector, Nagar Nigam, Prayagraj, the clean antecedents of the applicant, the charge-sheet having been submitted therefore the evidence sought to be relied upon by the prosecution stands crystalized, there being no such circumstance warranting custodial arrest of applicant during the course of trial, the applicant being a man of clean antecedents,

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inasmuch as, he has no criminal antecedents to his credit except the present one, the applicant being a Government servant and in service there are no chances of his absconding from the trial but without making any comment on the merits of the case, applicant has made out a case for bail.

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The bail application is accordingly allowed.

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Let the applicant Himanshu Kumar involved in Case Crime No. 24 of 2023 under Section 7 Prevention of Corruption Act, Police Station Khuldabad, District Prayagraj be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

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The applicant will not tamper with the evidence during the trial.

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The applicant will not pressurize/ intimidate the prosecution witness.

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The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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The applicant shall not directly or indirectly make any 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 or to any police officer or tamper with the evidence.

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In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

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Order Date :- 3.5.2023/Ruhi

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Digitally signed by :- RUHI HASAN High Court of Judicature at Allahabad

Himanshu Kumar v. State of U.P.

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Himanshu Kumar v. State of U.P.

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