Heard Dr. J.K. Jain, learned counsel for the applicant and Shri Anurag Kumar Singh,learned counsel for the respondent-CBI.
This is the first bail application moved by the applicant, who is an accused in Case Crime No.1426/2017 arising out of RC No.0532014A0006/2014, under Sections 120-B read with Sections 201, 204, 409, 420, 467, 468, 471, 477(A) IPC and Section 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 and Section 66 of the Information Technology Act, 2000.
Dr. Jain has submitted that initially two persons namely Vinod Jain and Manoj Shibhare made two complaints to the Postal Department regarding an alleged fraud in the Head Post Office, Lalitpur by resorting to fraud.
Upon the aforesaid complaint, Shri M.K. Srivastava conducted an inquiry and a fraud of Rs.45.00 lakhs and odd was uncovered. Upon the report submitted by Shri M.K. Srivastava, an FIR was lodged with the Central Bureau of Investigation naming six persons namely Indrajeet Tiwari, Shailesh Khare, Vinod Chaudhary, Sunil Tiwari, Anil Jain and Manoj Singhai as accused. Significantly, the applicant was not named in the aforesaid complaint nor his name surfaced in the inquiry as conducted by Shri M.K. Srivastava.
After the investigation was conducted, the CBI prepared the charge-sheet dated 30.06.2017 wherein for the first time, the name of the applicant surfaced. It was alleged that the applicant, who was the then Assistant Post Master (SB), had conspired with other co-accused namely Indrajeet Tiwari, Shailesh Khare, Vinod Chaudhary, Sunil Tiwari, Anil Jain, Manoj Singhai, Hari Om Tripathi, Ashok Kumar Jain, Sukumar Jain, Mayank Sharma, Kalu Ram Yadav, Surendra Kumar Sharma and Babu Ram Dohrey for the commission of offence of criminal conspiracy and criminal breach of trust and cheating, forgery in the records and falsification of the accounts apart from abusing the official position and causing a wrongful loss of Rs.3,07,00,000/- and odd to the Government exchequer.
Dr. Jain has further submitted that the applicant has had a good service record and is now retired and there is no any complaint against the applicant. The applicant throughout the investigation has cooperated and more so that from the perusal of the charge-sheet it would indicate that the manner in which the amount has been siphoned, technology has been used whereas the applicant is completely computer illiterate.
Dr. Jain has also submitted that from the bare perusal of the charges mentioned in the charge-sheet would indicate that while the departmental records were being digitalized for the Lalitpur Postal Office, it was the Senior Postal Officer, who had outsourced the manpower for the aforesaid working while ignoring the safety and sanctity of the passwords, the applicant neither had access to the aforesaid passwords nor he was in a position to divulge the same to others. Thus, the applicant has been victimized in the aforesaid scam.
Learned counsel for the applicant further submits that there is no material which can suggest that the applicant is guilty of any offence.
It has also been informed that Anil Kumar Jain has been granted bail by a Coordinate Bench of this Court by means of the order dated 17.07.2019 in Bail Application No.10688/2018 including the other co-accused namely Manoj Kumar Sangai by means of the order dated 17.01.2019 in Bail Application No.10530/2018.
It has also been pointed that Shri Hari Om Tripathi has also been enlarged on bail along with Surendra Kumar Sharma by Coordinate Benches of this Court in Bail Application No.9988/2018 vide order dated 02.06.2020 and Bail Application No.1722/2020 by means of the order dated 02.06.2020 respectively.
Learned counsel further submitted that since the investigation is complete and the trial has commenced, neither there is any apprehension that the applicant will abscond or that he is in a position to influence any witness or tamper with any evidence. In the aforesaid circumstances, it has been submitted that the applicant is also entitled to be enlarged on bail.
It is further submitted that there are six named accused persons in the F.I.R. and the names of fourteen persons have come during the investigation including the present applicant.
It is further submitted that all the co-accused persons named or unnamed in the F.I.R., have been granted bail by this court or by the trial court. The copies of the bail orders have been enclosed as Annexure Nos 8 to 15 to the bail application and copies of three bail orders have been annexed with the Rejoinder Affidavit.
Shri Anurag Kumar Singh, has vehemently opposed the bail application. It has been submitted that the applicant was a Assistant Post Master (SB) and during his duty along with Indrajeet Tiwari and Sukumar Jain, they are responsible for withdrawal through vouchers and electronic records, which have been changed. Shri Pandey has also submitted that that investigation revealed that 375 persons having their saving bank accounts were defrauded out of which the applicant and S. Kumar Jain both processed and cleared withdrawals of vouchers during their duty on the counter and by means of the aforesaid vouchers cleared by them were later modified or changed, thus indicating fraud committed by them to save themselves. In the aforesaid circumstances, it has been submitted that since the complicity of the applicant is quite evident and considering the extent of scam, the applicant is not entitled for bail which deserves to be rejected.
At this stage, it will be apposite to notice the expression of opinion by the Apex court in the case of Dataram Singh Vs. State of U.P reported in 2018 (3) SCC 22. The relevant paragraphs reads as under:-
"1.A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge-sheet is filed. Similarly, 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. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436-A in the Code of Criminal Procedure, 1973.
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India [Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 : (2017) 13 Scale 609] going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] in which it is observed that it was held way back in Nagendra Nath Chakravarti, In re [Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476] that bail is not to be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356] wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory".
Learned counsel for he respondents has very fairly conceded that almost all the accused persons having the same role as has been assigned to the present applicant, have been enlarged on bail but, not opposed the parity granted of orders of bail granted to the co-accused persons and given to the present applicant.
The Court has considered the rival submissions and also carefully perused the record. Upon considering the same, it would indicate that the learned counsel for CBI could not dispute that the applicant alone is not responsible for the alleged scam. Even in the counter affidavit wherever the respondent has indicated the complicity of the applicant, it would indicate that it has been shown that the applicant along with Sukumar Jain is responsible. However, it has not been shown as to what extent the applicant was involved in the aforesaid modus operandi of defrauding the customers. Shri Singh could not dispute that the name of the applicant did not find in the inquiry conducted by Shri M.K. Srivastava and it is only once the CBI conducted the investigation and submitted its charge-sheet, the name of the applicant surfaced along with other persons.
Shri Singh also could not dispute the fact that the many of the aforesaid named accused-persons have also been enlarged on bail. Shri Singh also could not dispute the fact that the investigation is complete and that the charge-sheet has been filed. It has not been shown that the applicant is required for any purpose as well as the fact that at any point of time during investigation, the applicant did not cooperate. Learned counsel for the CBI also could not express any apprehension that the applicant is likelihood to abscond or he may influence any witness or tamper with the evidence.
After hearing the submissions made by the learned counsel for the parties and examining the material available on record, keeping in view the nature of offence and totality of facts and circumstances of the case and without entering into the merits of the case and also on the ground of parity, I am of the view that the applicant has made out a fit case for grant of bail. Hence, the bail application is hereby allowed.
Let the applicant,Ashok Kumar Jain, involved in Case Crime No.1426/2017 arising out of RC No.0532014A0006/2014, under Sections 120-B read with Sections 201, 204, 409, 420, 467, 468, 471, 477(A) IPC and Section 13(2) read with Section 13(1)(c) and (d) of the Prevention of Corruption Act, 1988 and Section 66 of the Information Technology Act, 2000,Police Station-SCB, CBI, Lucknow, District-Lucknow be released on bail on furnishing personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
(i) The applicant shall, however, co-operate and attend the proceedings at every stage without seeking unnecessary adjournments just to prolong the proceedings.
(ii)The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(iii) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(iv) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 12.8.2021/AKS