Allowed

Dinesh Upadhyay v. State of U.P.

Allahabad HC1 May 2023BAIL/18127/2023

Case brief

AI extract

What is this about?

This bail application was allowed. The court held that the accused, a Junior Clerk, had made out a prima facie case for bail as the acid test of demand and acceptance under Section 7 of the Prevention of Corruption Act was not satisfied, noting the money was transferred before the alleged incident.

What did the court decide?

Applicant released on bail on personal bond with two sureties subject to conditions regarding attendance and appearance.

Dinesh Upadhyay Vs State of U.P. — Corruption | Allahabad HC (2023)

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Court No. - 49

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18127 of 2023

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Applicant :- Dinesh Upadhyay Opposite Party :- State of U.P. Counsel for Applicant :- B.K.Singh Raghuvanshi,Akash Chaubey Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. B.K. Singh Raghuvanshi, the learned counsel for applicant and the learned A.G.A. for State.

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This application for bail has been filed by applicant Dinesh Upadhyay seeking his enlargement on bail in Case Crime No. 249 of 2023, under Sections 7 Prevention of Corruption Act 1988, P.S. Kotwali, District Deoria, during the pendency of trial.

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Perused the record.

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Record shows that in respect of an incident which is alleged to have occurred on 28.03.2023, a prompt FIR dated 28.03.2023 was lodged by first informant Inspector Incharge (Trap Team) and was registered as Case Crime No. 0249 of 2023, under Sections 7 Prevention of Corruption Act 1988, P.S. Kotwali, District Deoria. In the aforesaid FIR, applicant has been nominated as solitary named accused.

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The gravamen of the allegations made in the FIR is that a complaint was made by one Sonu Kumar @ Surya Prakash Mani against applicant with the vigilance cell regarding demand of bribe by applicant. Accordingly, a trap was laid on 28.03.2023 in which the applicant was caught red handed with cash worth Rs. 10,000/-. Subsequently, the result of the chemical test in respect of the same was also against the applicant.

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Learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in aforementioned case crime number. Allegations made in the F.I.R. are false and concocted. As such, applicant is being falsely prosecuted in aforementioned case crime number. He then submits that the occurrence giving rise to the present application is said to have occurred on 28.3.2023 and the F.I.R. was promptly lodged on 28.3.2023. However, prior to the aforesaid F.I.R. the entire amount

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had already been transferred on 27.3.2023 in the respective account of account holders. Applicant is simply a clerk in District Treasury, Deoria. On the basis of the material on record, he contends that in order to invoke the provisions of Section 7 Prevention of Corruption Act, the acid test of "Demand and Acceptance" as explained by the Constitution Bench in Neeraj Dutta Vs. N.C.T. of Delhi, 2023, SCC OnLine 1724 must be satisfied. However, in the present case, there is nothing on record to show that the aforesaid test stands satisfied against applicant. 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 28.3.2023. As such, he has undergone more than 1 month of incarceration. He further submits that mere possession of money does not constitute an offence under Section 7 of the Prevention of Corruption Act unless the condition as required by Section 7 of the Prevention of Corruption Act is satisfied. To buttress his submission, he has referred to the following judgments:

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(i). State of M.P. Vs. Madan Mohan Lal Varma (2013) 14 SCC 153.

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(ii). C. Sukumaran Vs. State of Kerala (2015) 11 SCC 314.

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(iii). Prabhat Kumar Gupta Vs. State of Rajasthan (2014) 14 SCC 516.

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(iv). M.R. Purushottam Vs. State of Karnataka (2015) 3 SCC 247.

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(v). B. Jayraj Vs. State of A.P. (2014) 13 SCC 55.

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(vi). G. Hariharnath Rao Vs. State of A.P. (2014) 13 SCC 44.

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(vii). Satvir Vs. State of Delhi (2014) (13) SCC 143.

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(viii). State of A.P. Vs. P. Venkateshwarlu (2015) 7 SCC 283.

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On the above premise, he 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 and shall co-operate with the trial.

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Per contra, the learned A.G.A. has opposed this application for bail. Learned A.G.A. contends that since applicant was caught red handed, the result of the chemical test in respect of the recovery made from applicant is also against the applicant, therefore, prima-

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facie, the innocence of the applicant cannot be accepted. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant at this stage.

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Having heard, the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused-applicant, accusation made and coupled with the fact that applicant is simply a Class-III employee working as a Junior Clerk in the District Treasury, Deoria, there being no chances of his fleeing away from the trial, the amount having been transferred by the applicant in the account of respective account holder on 27.3.2023 i.e. prior to the date of the occurrence, the acid test required to be satisfied for implicating an accused for an offence under Section 7 of the Prevention of Corruption Act as explained by the above noted Constitution Bench is prima facie not satisfied in the case of applicant, the amount recovered is only Rs. 10,000/-, the law settled by Apex Court that mere possession of money does not constitute an offence under Section 7 of the Act as explained in the judgements noted above, the applicant being a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one, but without expressing any opinion on the merits of the case, the applicant has made out a case for bail.

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Accordingly, the bail application is allowed .

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Let the applicant Dinesh Upadhyay, involved in aforesaid case crime number, be released on bail on his/her/their furnishing a personal bond with 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 :-

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(i) The applicant shall file an undertaking to the effect that he 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.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the

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court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.

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(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 him in accordance with law.

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(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.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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.

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Order Date :- 1.5.2023 HSM

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Digitally signed by :- HARI SHANKER MISHRA High Court of Judicature at Allahabad

Dinesh Upadhyay v. State of U.P.

Case brief

What is this about?

What did the court decide?

Dinesh Upadhyay v. State of U.P.

Case brief

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What did the court decide?

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