7216 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Bail ApplicationNo.411of2025 Shanti Bhandari v. State of Uttarakhand

Judgment

1. The instant bail application has been moved by the present applicant Smt. Shanti Bhandari W/o Diwan Singh seeking regular bail in relation to First Information Report dated

09.12.2024 bearing FIR No. 0018 of 2024 P.S. Vigilance Sector Haldwani, District Nainital, wherein, the present applicant has been implicated for the offence punishable under Section 7 of the Prevention of Corruption Act.

2. The brief facts of the case are that the applicant was working as an Assistant Controller Legal Metrology (Weight and Measures) along with an additional charge of Senior Inspector Legal Metrology Department Kiccha.

3. It is argued by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated and due to personal vendetta with Class-IV employees in the office of the applicant, which is evident from the letter dated

04.12.2024, which clearly shows that the applicant was threatened by one Hridesh Kumar, Lab Assistant, on several occasions and on that day he threatened the applicant to face 1 dire consequences in future. He submits that the present case is nothing but a case of planted recovery as there was no any demand of taking bribe in lieu of some official work. He submits that the trap was conducted on a complaint of one Yogesh Tyagi and during trap proceeding the recording device was not turned on, which was admitted by the trap team that the recorder at the time of trap proceeding was switched off and nothing was captured. He further submits that there is no any independent eye witness since as per trap memo except the applicant and the complainant there was no one present in the office and even the shadow witness was standing outside the office thereby making the recovery doubtful. He further submits that as per the prosecution on arrival at the spot the trap team was divided in two teams and the person who made the complaint was directed to enter the office and as soon as he hand over the bribe he shall inform the complainant by saying ‘ok madam’ and the trap team enter in the office and when the team entered in the office a brown envelope was recovered from the drawer of the applicant consisting 20 currency notes of Rs. 500 amounting to Rs. 10,000/- and upon the phenolphthalein test the hands of the applicant turned pink and an arrest was made.

4. Mr. Aditya Singh argued that neither there is any proof of demand nor there is any proof of recovery. He also argued that the applicant inducted in the department in the year 1991 and her annual confidential report shows that she has an exemplary record during her tenure of 33 years and no complaint was ever been filed against her. He submits that there is no proof of demand and as such no offence is made out against the applicant. 2 5. Apart from this, he submits that the charge-sheet has already been filed in which the Second Additional District Judge, Haldwani took cognizance on 05.02.2025. He submits that the applicant was arrested on 09.12.2024 and thereafter she was released on an interim bail and as such taking into consideration the custody period of the applicant she already served the incarceration for the period of more than 90 days. He further argued that the applicant has no previous criminal history. He submits that since the charge-sheet has already been filed and as such there is no need of custodial interrogation of the applicant and be enlarged on bail. He further argued that the applicant was granted interim bail on 25.03.2025, which was extended time to time and the interim bail was never been misused by the applicant.

6. On the other side, learned Additional Advocate General vehemently oppose the bail application by submitting that there are sufficient evidence of demand as well as acceptance. He also submits that the independent shadow witness Gokul Singh Devpa also supports the case of prosecution and not only this even one Ravindra Kumar the independent recovery witness also supports the case of the prosecution. He also submits that the telephonic conversation in between the applicant and the complainant, transcription of which is also enclosed along with the response affidavit, clearly reveals that there was demand from the applicant. About the voice recorder, which was switched off at the time of the trap as contended by the learned counsel for the applicant is not denied and Mr. G.S. Sandhu admits this fact that at the time of the trap the voice recorder was switched off. 3 7. Apart from this, there is no any denial in reference to the statement as given by the applicant that the entire service record of the applicant is unblemished and most of the ACR are excellent.

8. Learned counsel for the applicant argued that the present applicant is a woman and served almost 33 years in service having two children; one is the daughter doing M.D. from Government Inter College, Nagpur and other one is the son doing Diploma in Civil Engineering; her husband was also a public servant retired from CRPF. He further submits that in this particular case the charge-sheet has already been filed on

05.02.2025 and most of the prosecution witnesses are the public servant and furthermore all the evidences which have been collected while submitting the charge-sheet are documentary, therefore, there is no any question for tampering with the evidence. He further argued that the present applicant already suffered long incarceration of 106 days.

9. He further argued that the trial has yet not been commenced and as per the charge-sheet there are as many as 21 prosecution witnesses and, therefore, the presumption in terms of Section 20 of the Prevention of Corruption Act, 1988 will not come into the way since the presumption in terms of Section 20 can only be seen during trial. In reference to this argument particularly in respect of Section 20, which deals with the presumption, he relied upon the judgment of Hon’ble Apex Court in the case of Neeraj Dutta vs. State (Govt. of NCT of Delhi) and particularly he has placed reliance in paragraph 68, which reads as under: “What emerges from the aforesaid discussion is summarised as under: 4 (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of Criminal Appeal No.1669 of 2009 illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is Criminal Appeal No.1669 of 2009 a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the 5 basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said Criminal Appeal No.1669 of 2009 presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.”

10. Mr. Aditya Singh is harping upon paragraph 68(a), (b) and (g). In furtherance of his argument he further placed reliance on the judgment of the Hon’ble Apex Court in the case of Arvind Kejriwal vs. Central Bureau of Investigation 2024 SCC Online SC 2550 and particularly placed reliance to paragraph 39 and 40, which reads as under: “39. It was submitted during these proceedings that the FIR was registered on 17.08.2022, and since then, the chargesheet along with four supplementary chargesheets have been filed. The fourth supplementary chargesheet was filed as recently as 29.07.2024 and we are informed that the Trial Court has taken cognizarice of the same Additionally, seventeen accused persons have been named, 224 individuals have been identified as witnesses, and extensive documentation, both physical and digital, has been submitted. These factors suggest that the completion of the trial is unlikely to occur in the immediate future.

40. In our considered view, although the procedure for the Appellant's arrest meets the requisite criteria for legality and 6 compliance, continued incarceration for an extended period pending trial would infringe upon established legal principles and the Appellant's right to liberty, traceable to Article 21 of our Constitution. The Appellant has been granted interim ball by this Court in the ED matter on 10.05.2024 and 12.07.2024, arising from the same set of facts. Additionally, several co-accused in both the CBI and ED matters have also been granted ball by the Trial Court, the High Court, and this Court in separate proceedings.”

11. By referring the aforesaid judgment, he submits that firstly it is settled principle of law that bail is the rule and jail is the exception and the accused is innocent until proven guilty by a competent court following the due process, hence, there is a presumption of innocence. By referring the aforesaid judgment he argued that no doubt the charge-sheet has been filed by the prosecution but until and unless the charges are proved by the competent court of law by due process of law the applicant cannot be presumed to be guilty in terms of Section 20 rather since the trial has not been commenced so far and, therefore, even if the charge-sheet is filed the applicant has to be presumed to be innocent.

12. He further advance his arguments by submitting that presumption in terms of Section 20 no doubt is a statutory presumption but issue of presumption is nothing but is the subject matter of trial, therefore, since the trial has not yet been commenced the applicant has to be presumed to be innocent and in reference to this, he placed reliance in one of the judgment of the Delhi High Court i.e. in the case of Gaurav Singal vs. Central Bureau of Investigation 2023 0 Supreme (Del) 5154 i.e. Bail Application No. 1982 of 2023 decided on

28.06.2023 and by placing reliance on this he particularly relied upon paragraph 7(d), 9 and 10 and this matter also relates to the Prevention of Corruption Act and that too for the offences punishable under Section 13(2) 13(1)(e) of PC Act, wherein, the 7 bail was granted only on account that the applicant suffered incarceration for more than 52 days.

13. Mr. Aditya Singh concluded his argument by submitting that there is no useful purpose to keep the applicant in custody when the charge-sheet has been filed and there is no any scope that after being released on bail she will tamper with the evidence particularly when all the evidences are documentary and furthermore most of the prosecution witnesses are the public servant and apart from this there is no need of further custodial interrogation and here in this case there are as many as 21 prosecution witnesses and even the charges has yet not been framed, therefore, there is no any such possibility that the trial would be expedited soon.

14. In response to this, Mr. G.S. Sandhu, learned Additional Advocate General first of all placed reliance on the judgment of the Hon’ble Apex Court in the case of Sanjay Chandra vs. CBI 2011 (8) Supreme 270 and particularly he placed reliance to paragraph 25 and 26, which reads as under: “25. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty.If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan-

26. (2005) 2 SCC 42, observed that: "under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on 8 in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non-bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so."”

15. By referring the aforesaid judgment Mr. G.S. Sandhu argued that there are the prima-facie evidence with regard to the demand and acceptance of bribe money and the applicant was caught red handed and furthermore the alleged offence is a non-bailable offence, therefore, the applicant does not deserve for bail since there are prima-facie evidence against the applicant. He further argued that no doubt this Cr.P.C. confer jurisdiction on criminal courts while granting bail but the law is very well settled that it has to be exercised with great care and caution by balancing valuable rights of liberty of the individuals and the interest of the society in general, therefore, at this juncture, the applicant, who is the accused for non- bailable offence that too under the Prevention of Corruption Act cannot question his detention being violative of Article 21 of the Constitution of India. By referring the aforesaid judgment, he further placed reliance on two more paragraphs of this judgment i.e. paragraph 42 and 43, which reads as under: “42. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case.

43. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite 9 period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet.” By referring the aforesaid paragraphs of the judgment as aforesaid, Mr. G.S. Sandhu argued that in the aforesaid case there were 17 accused persons and statement of witnesses run to 700 pages of the documents in which reliance was placed by the prosecution were voluminous, therefore, the trial may take considerable time and that was the reason the bail was granted but here in the present case the accused is one and total prosecution witnesses are 21, therefore, the trial can be expedited and there is no hurdle on this.

16. Mr. G.S. Sandhu also placed reliance on paragraph 38 of the judgement in the case of Sanjay Chandra (Supra) and submits that here in this particular case the applicant was caught red handed in respect ofa serious offence.

17. On the submission as advanced by Mr. G.S. Sandhu that trial can be expedited, this court enquired from the Registry about the pendency of the trial particularly in the respect of Vigilance Establishment, Haldwani and it has been apprised by the Registry that as on 31.07.2025 there are in total 187 pending trial before the Second Additional District Judge/Special Judge, Anti Corruption, Haldwani, and the oldest one is the Special Session Trial (PCA)/1/2012 ‘State Government vs. Sanjeev Mehrotra’.

18. The question is how the learned Additional Advocate General gives such a submission that trial would be expedited in the present case without verifying the current status of the 10 pending trials. The information supplied by the Registry itself reveals that the oldest trial is of 2012 and as on 31.07.2025 there are in total 187 pending trials.

19. Apart from this Mr. G.S. Sandhu also argued that the judgment of the Hon’ble Apex Court in the case of Arvind Kejriwal(Supra) as well as the judgment of Delhi High Court in Gaurav Singal’s case are not applicable since in both the cases the accused persons were not caught red handed but here in this particular case the applicant was caught red handed.

20. The present applicant was already admitted on interim bail, therefore, this court is of the view that the interim bail granted by this court to the present applicant on 25.03.2025 is made absolute and the applicant remain on bail during the pendency of the trial subject to the following conditions: (i) The applicant shall not indulge in any criminal activity during the bail period. (ii) The applicant shall not communicate with or intimidate or influence any of the prosecution witnesses or tamper with the evidence of the case. (Rakesh Thapliyal,J.)

14.08.2025 PR 11