Kiran Pal Saini vs State Of Uttarakhand

Alok Kumar Verma, J

This First Bail Application has been filed for grant of regular bail in connection with Case Crime No.04 of 2018, registered with Vigilance

Establishment Sector Dehradun, District Dehradun for the offences punishable under Section 7/13(1)(d) read with Section 13(2) of the Prevention of

Corruption Act, 1988 (hereinafter referred to as ‘ the Act, 1988’).

Facts, to the limited extent necessary are that a complaint was given by the complainant-Shyam Narayan Yadav, Technical Officer of

Mohammedpur Bujurg Kisan Sewa Sahakari Samiti Ltd. to the Superintendent of Police, Vigilance Sector, Dehradun, complaining unlawful conduct of

the applicant-accused demanding illegal gratification of Rs.38,000/- in order to make clear balance dues of the complainant for the period of his

suspension. Thereafter, the Superintendent of Police, Vigilance made an inquiry of the complaint through his subordinate officer and passed an order

to constitute a trap team in the leadership of the Inspector Prakash Singh and in compliance of the order passed by Superintendent of Police,

Vigilance, a trap team was constituted and trapped the applicant/accused red handed with Rs.38,000/- as the said amount was given by the

complainant to the applicant/accused on 05.07.2018 as gratification. The said amount was received by the applicant/accused which was mixed with

phenolphthalein powder.

Heard Mr. Aditya Singh, learned counsel appearing for the applicant/accused and Mr. Saurabh Pandey, learned Brief Holder for the State of

Uttarakhand.

The learned counsel appearing for the applicant/ accused submits that the applicant is an innocent person; he is in custody since 05.07.2018; the

story of the FIR is based on false and frivolous allegations; the complainant had received his money of his suspension period; the date of birth of the

complainant dated 01.10.1957 was recorded in the Society; the date of his appointment was 31.01.1980; his educational qualification is B.Sc. and

M.A.; the applicant/accused had issued a notice on behalf of the Co-operative Society on 22.05.2018 mentioning therein that if the complainant did not

submit the proper certificate within a week, then it was presumed that he (the complainant) was retired on 30.09.2017; the notice was received by the

complainant on 26.05.2018; the whole story was concocted by the complainant with the vigilance department and roped the applicant; there is a clear

violation of Article 19 of the Constitution of India as well as the Act, 1988; the applicant never demanded the bribe for the alleged work; the applicant

is not a public servant within the meaning of Clause (ix) of Section 2(c) of the Act, 1988.

The learned Brief Holder appearing for the State of Uttarakhand submits that the applicant/accused is a Samiti Sachiv/Managing Director of

Mohammedpur Bujurg Kisan Sewa Sahakari Samiti Limited, Vikas Khand, Laksar, District Haridwar and the said Samiti does not receive any

financial assistance/aid from the State Government, however, the said Samiti is under the control and is governed by the Uttarakhand Co-operative

Societies Act, 2003 (hereinafter referred to as ‘the Act’), therefore, the applicant falls within the comprehensive definition of public servant as

contained in Sub Clause (iii) and (viii) of Clause (c) of Section 2 of the Act, 1988; the applicant is a public servant. In support of his submissions, the

learned Brief Holder appearing for the State of Uttarakhand has placed reliance on Section 44 of the Act. However, the learned Brief Holder has not

been able to show how this matter is covered under Section 44 of the Act for deciding the dispute as raised between the parties regarding public

servant; Section 44 reads as follows:-

“44. Direct partnership of State Govt. in societies. -

(1) (a) The State Govt. may subscribe directly to the share capital of a society with limited liability, upon such terms & conditions as may be agreed

upon:

(b) Indirect partnership of State Govt. in societies-

The State Govt. may provide money to an Apex Society for the purchase directly or indirectly; or shares in other societies with limited liability;

(2) The State Government shall be entitled to dividend on its shares in any such co-operative society at the same rate as paid to other shareholders of

the society.â€​

The Uttarakhand Co-operative Societies Act, 2003 has been enacted to provide for Co-operative Society in the State of Uttarakhand. Section 2(A)

of the Act defines the ‘Co-operative Society’ means a society registered or deemed to be registered under this Act. The Co-operative Society,

registered under the provisions of the Act, is a body corporate as provided under Section 9 of the Act. The Registrar, Co-operative Society,

Uttarakhand (for short ‘Registrarâ€) (appointed by the State Government under Section 3 of the Act), has the power to remove or expel a person

from the membership of a Co-operative Society under Section 27(2) of the Act. The Registrar may supersede or suspend the Committee of

Management under Section 35 of the Act. The Registrar may seize the records of a Co-operative Society under Section 37 of the Act. The Registrar

shall audit or cause to be audited of account of every Co-operative Society as provided under Section 64 of the Act. The power has been given under

Section 65 of the Act to the Registrar to hold an enquiry into the constitution, working and financial condition of a Co-operative Society and power to

order remedying of defects has been given to the Registrar under Section 69 of the Act. Subject to the provisions of Section 70 of the Act, reference

for settlement of disputes between an employee of a Co-operative Society and the Society shall be referred to the Registrar. The Registrar has

authority to frame regulations to regulate the emoluments and other conditions of service including the disciplinary control of employees in a Co-

operative Society or a class of Co-operative Societies under Section 121 of the Act. Section 122 of the Act empowers the State Government to

constitute an authority or authorities, in such manner as may be prescribed, for the recruitment, training and disciplinary control of the employees of

Co-operative Societies, or a class of Co-operative Societies, and may require such authority or authorities to frame regulations regarding recruitment,

emoluments, terms and conditions of service including disciplinary control of such employees.

In the light of these provisions, the Mohammedpur Bujurg Kisan Sewa Sahkari Samiti Limited, Vikas Khand, Laksar, District Haridwar is a

“State†within the meaning of Article 12 of the Constitution of India and Samiti Sachiv/Managing Director of this Sahkari Samiti performs public

duties. Therefore, the applicant/accused falls under the definition of “public servantâ€​ as given in Clause (viii) of Section 2 (c) of the Act, 1988.

The Act, 1988 has been enacted to consolidate and amend law relating to the prevention of corruption. The Act, 1988 was brought into force with

the avowed purpose of effective prevention of bribery and corruption.

In the case of State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21, the Hon’ble Apex Court has held that it is well settled that the matters to

be considered in an application for bail, are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the

offence, (ii) nature and gravity of charge, (iii) severity of the punishment in the event of conviction, (iv) danger of the accused absconding or fleeing, if

released on bail, (v) character, behavior, means, position and standing of the accused, (vi) likelihood of the offence being repeated, (vii) reasonable

apprehension of the witnesses being tampered with, and (viii) danger, of course, of justice being thwarted by grant of bail.

Therefore, while dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie considering why bail is being

granted particularly where an accused is charged of having committed a serious offence. Any order dehors reasons suffers from non-application of

mind as observed by the Hon’ble Apex Court in Ram Govind Upadhyay Vs. Sudarshan Singh and others, (2002)3 SCC 598.

In Niranjan Hem Chandra Sashittal Vs. State of Maharashtra, (2013)4 SCC 642, the Hon’ble Apex Court observed that corruption is not to be

judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons

the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. The

Hon’ble Apex Court further observed that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history

records with agony how they have suffered; and the only redeeming fact is that collective sensibility respects such suffering as it is in consonance

with constitutional morality. The emphasis was on intolerance to any kind of corruption bereft of its degree.

In Subramanian Swamy Vs. C.B.I., (2014)8 SCC 68,2 the Constitution Bench of the Hon’ble Supreme Court observed that corruption is an

enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the 1988 Act.

In Asian Resurfacing (Supra), the Supreme Court observed that the cancer of corruption has, as we all know, eaten into the vital organs of the

State. Cancer is a dreaded disease which, if not nipped in the bud in time, causes death.

In view of the facts and circumstances of the case, there is no force in the submissions of the learned counsel for the applicant/accused and no

good ground has been made out for enlarging the applicant on bail at this stage, therefore, the bail application is liable to be rejected.

The first bail application is rejected accordingly.

It is clarified that the observations made regarding the bail application are limited to the decision, in the light of the facts, provided by the parties at

this stage, as to whether the bail application should be allowed or not and the said observations shall not effect the trial of the case.