Rajesh Vimal vs State of Himachal Pradesh

Sandeep Sharma, J

Sequel to order dated 12.2.2024, whereby the petitioner was ordered to be enlarged on interim bail in case FIR No. 1 of 2024, dated 7.2.2024, registered at Police Station Vigilance, Mandi, District Mandi, H.P., under Section 7 of the Prevention of Corruption Act (in short “the Act”), respondent-State has filed the status report.

Close scrutiny of record/status report made available to this Court reveals that complainant Smt. Geeta Devi, got her statement recorded under Section 154 CrPC, stating therein that her husband had expired in the year, 2019 and out of their wedlock, four children were born. Marriage of her two daughters has already been solemnized, whereas her two sons are still unmarried. She reported to the police that she lives in the two storied house along with her sister-in-law (Jaithani), which is yet to be partitioned. She reported that in 2023, two rooms falling in her share in the building were completely damaged on account of heavy rains and as such, she applied for help to the Government. She alleged that Kanungo alongwith Pradhan of the Gram Panchayat and Ward Member visited the spot and thereafter, she after having prepared documents for compensation handed over the same to the present bail petitioner Rajesh Bimal. She alleged that on 19.12.2023, she received first installment of Rs. 3.00 lac in her bank account, but on the same day, bail petitioner called her on mobile phone and asked her to give him Rs. 50,000/-. She alleged that above named bail petitioner also told her to give Rs.50,000/- on receipt of next installment of Rs. 4.00 lac. Complainant alleged that though repeteadly, she alongwith her son in law objected to the demand of the petitioner, but he insisted and as such, she after having withdrawn Rs. 1.00 lac from her account, gave Rs. 50,000/- to the bail petitioner. She alleged that since repeated demands were being made by the bail petitioner, she brought the matter to the notice of vigilance department, whereafter the bail petitioner started exerting pressure upon her to withdraw the complaint through Pradhan of the Gram Panchayat. She alleged that bail petitioner also refunded Rs. 24,000/- through Google-Pay to her son in law. She alleged that thereafter on 5.2.2024, while she had gone to Dharampur, bail petitioner alongwith Ex-President Kamlesh returned Rs. 25,000/- in cash. In the aforesaid background, case under Section 7 of the Act, came to be registered against the petitioner.

Before petitioner could be arrested in the case as detailed herein above, this Court vide order dated 12.2.2024 enlarged him on interim bail subject to his joining investigation. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, prayer has been made for confirmation of interim order dated 2.2.2024.

While fairly acknowledging factum with regard to petitioner’s having joined the investigation pursuant to order dated 12.2.2024, Mr. Rajan Kahol, learned Additional Advocate General, submits that though challan is yet to be filed in the competent court of law, but keeping in view the gravity of offence alleged to have been committed, he does not deserve any leniency, rather needs to be dealt with in accordance with law. While making this Court peruse various documents adduced on record, Mr. Kahol, states that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner while taking undue advantage of the complainant, pressurized her to give Rs.50,000/-. He submitted that bare factum with regard to refund of money by the petitioner, subsequently after lodging of the FIR, itself proves factum with regard to illegal demand.

To the contrary, Mr. N.S. Chandel, learned Senior counsel appearing for the bail petitioner, vehemently argued that as per own case of the complainant, no demand was ever raised by the bail petitioner before release of the amount, rather after release of first installment in favour of the complainant, bail petitioner allegedly demanded Rs. 50,000/-, if it is so, no case much less under Section 7 of the Act, can be said to be made out against the bail petitioner and as such, he deserves to be enlarged on bail.

Having heard learned counsel for the parities and perused material available on record, this court finds that at the first instance, complainant submitted an application to the revenue department for compensation qua the damage caused to her house in the rainy season. As per statement of complainant, Kanungo alongwith Pradhan of the Gram Panchayat and Ward Member visited the spot, whereafter, first installment of Rs. 3.00 lac was straightaway deposited in her bank account. It is only after deposit of sum of Rs. 3.00 lac in the bank account of the complainant, allegedly, petitioner called the complainant telephonically to pay Rs. 50,000/-. Though status report reveals that pursuant to aforesaid demand made by the bail petitioner, sum of Rs. 50,000/- was paid by the complainant to the bail petitioner, but question, which, at this stage, needs to be determined, is whether demand, if any, made by the petitioner after deposit of amount, would render him liable for prosecution under Section 7 of the Act or not?

At this stage, it would be apt to take note of Section 7 of the Act, which reads as under:

“7. [ Offence relating to public servant being bribed- Any public servant who,-

(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

Explanation 1. - For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

Illustration A - A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.

Explanation 2- For the purpose of this section-

(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means;

(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party.”

Careful perusal of aforesaid provision of law clearly reveals that if any public servant obtains or accepts or attempts to obtain from any person, an undue advantage, with an intention to perform or cause performance of public duty, he shall be liable to be dealt with in terms of the aforesaid provisions of law, however in the case at hand, as per own case of the complainant, spot was inspected by the Kanungo and Pradhan of the Gram Panchayat alongwith Ward Member and thereafter, she submitted application for compensation to the present bail petitioner, who admittedly, at that time, raised no demand, if any, for performing his duty, rather, after release of the first installment, allegedly, the bail petitioner called upon the complainant to give him Rs. 50,000/-. If it is so, there appears to be merit in the contention of Mr. N.S. Chandel, Senior Advocate, appearing for the bail petitioner that no case much less under Section 7 of the Act, is made out against the bail petitioner because to attract Section7, it is incumbent upon the prosecution to prove that person charged with aforesaid section had obtained or made an attempt to gain an undue advantage for performing or causing performance of public duty improperly or dishonestly.

At this stage, learned Additional Advocate General specifically invited attention of this Court to Explanation-1, of the aforesaid provision of law, to state that accepting some amount in lieu of performing duty would also constitute offence under Section 7. He submitted that since it is not in dispute that bail petitioner received Rs 50,000/- after deposit of first installment, that is sufficient to constitute offence under Section 7 of the Act, however, this Court is not persuaded to agree with learned Additional Advocate General for the reason that there is nothing on record to suggest that at the time of filing of the application for compensation, demand, if any, was made by the petitioner. There is nothing in the statement of the complainant to suggest that while complainant had filed an application, bail petitioner told her that she may have to pay Rs. 50,000/-, which he will deduct subsequently from the first installment rather, precise case of the complainant is that after receipt of the first installment in her bank, bail petitioner called her telephonically and demanded Rs. 50,000/-. No doubt, pursuant to aforesaid amount, some amount was allegedly received by the petitioner, but that may not be sufficient to conclude guilt, if any, of the bail petitioner under Section 7 of the Act.

To constitute offence under Section 7 of the Act, it is obligatory on the part of the prosecution, to prove demand that too before performance of the public duty. At this stage, there is no evidence adduced on record suggestive of the fact that while processing the application made by the Complainant, demand was ever raised by the bail petitioner, rather demand, if any, ever came to be raised after release of the money, meaning thereby, work, alleged to have been done in lieu of bribe, was done without there being any demand. Aforesaid fact gains significance on account of the fact that there is nothing in the statement of the complainant that when she had submitted an application, she was asked/told by the bail petitioner that she may have to give Rs. 1.00 lac in lump sum, enabling him to perform his official duty, whereby he had to report that damage has been caused to the house of the complainant in rainy season.

There is another aspect of the matter that as per case of the prosecution, sum of Rs. 24,000/- was returned by the petitioner after registration of the case, but same was not paid to the complainant, rather was deposited in the bank account of her son-in-law through Google-Pay.

Whether aforesaid amount transferred by the bail petitioner was on account of his having taken Rs. 50,000/- from the complainant after release of the first installment, is a question to be decided by the court below in totality of evidence collected on record by the prosecution.

Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the Investigating Agency, but having noticed aforesaid glaring aspects of the matter, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when he has made himself available for investigation and nothing remains to be recovered from him.

Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time, guilt of his/her is not proved in accordance with law. In the case at hand, guilt if any of the bail petitioner is yet to be established on record by the Investigating Agency by leading cogent and convincing evidence and as such, his freedom cannot be curtailed for an indefinite period during trial. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner.

Needless to say, object of the bail is to secure the attendance of the accused in the trial and 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 trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. See: Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 and Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496.

Recently, the Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.

Consequently, in view of the above, order dated 12.2.2024, passed by this Court, is made absolute, subject to the following conditions:

(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

(d) He shall not leave the territory of India without the prior permission of the Court.

It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.

The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.