Mittra Sen Yadav vs State of U.P.

Bhanwar Singh, J.—This application for bail has been filed under the provisions of a liberty granted to the applicant by the Supreme Court in Criminal Appeals No. 1209 of 2002 filed by Ram Pratap Yadav, Principal of Kisan High School, Bankata, Tarun, district Faizabad and No. 1210 of 2002, preferred by Mr. B. P. Mishra, the then District Magistrate, Faizabad.

It is noteworthy that a first information report was lodged against the applicant by Mr. Ram Pratap Yadav, Principal of Kisan High School, Bankata, Tarun, district Faizabad under Sections 419/420/467/468/471/409, I.P.C. The applicant Mittra Sen Yadav is the Manager of the said school. According to the allegations, as revealed in the first information report, Mr. Mittra Sen Yadav and his son Anand Sen Yadav are persons of turbulent nature and taking advantage of their undue influence, they had forcibly restrained the informant from entering the premises of Kisan High School. Both the applicant and his son being in collusion with each other had forged and fabricated the signatures of the then District Inspector of Schools Smt. Vinita Boudh on a manufactured letter and thereby appointed Bhanu Pratap, Subedar, Jitendra Kumar, Pankaj Yadav, Siyaram, Nand Kumar, Ram Nayak and Ram Bharat as teachers. These appointments were made in the vacancies of equal number of teachers who were appointed earlier in accordance with prescribed rules. Giving details of such replacements and illegal appointments, the informant stated that Mr. Bhanu Pratap was appointed in place of Tilakdhari Yadav, Subedar in place of Ram Milan, Pankaj Yadav in the vacancy of Ram Tej Yadav, Siyaram in lieu of Yadunath, Jitendra Kumar in place of Shiv Kumar Maurya, Nand Kumar in place of Hari Om Yadav, Ram Bharat substituted for Dines Yadav and Ram Naik had been appointed in place of Mr. Bhagirathi. The applicant was alleged to have prepared forged appointment letters in back date and treating them as appointed with effect from 1.4.1996 allegedly permitted them to do their duty and in this way, a sum of Rs. 9 lacs was drawn and misappropriated from 1.4.1996 to May 2001. This act of embezzlement has been committed by the applicant for his personal gain. In addition to that amount, a sum of Rs. 2,10,000 was also drawn by altering the date of birth of three Class-IV employees, namely, Bharat Ram, Ram Shanker and Laxman Prasad. Yet one more act of forgery was committed by the applicant by tampering with records pertaining to the appointment of Mr. Ram Naresh Maurya who was not holder of M.A.B. Ed. degrees and as such, not eligible to be appointed as assistant teacher but subsequently a certificate of Bombay Art of 1978 was placed on record and a sum of Rs. 5 lacs was drawn as his salary and this act too was termed to be an offence of embezzlement. A sum of Rs. 5 lacs was also drawn as salary for Subedar Yadav, Clerk who was, subsequently, on the basis of a forged experience certificate, appointed as a teacher contrary to the rules and the said sum was also misappropriated by the applicant. In this way, a total sum of Rs. 21,10,000 is said to have been illegally drawn and misappropriated.

Following registration of a case for the offences as alleged above to have been committed, the applicant was arrested during the course of investigation. He moved a bail application in the Court of Sessions, Faizabad. The Sessions Judge transferred it to the Court of Xth Additional Sessions Judge who had rejected the bail application vide his order dated 12.10.2001. The applicant then moved this Court and prayed for his bail by filing Criminal Misc. Case No. 5232 (B) of 2001. This Court vide its cursory order of November 8, 2001, observed that it was a fit case for bail and resultantly, released the applicant on bail.

The informant challenged the said bail order by way of filing Criminal Appeal No 1209 of 2002 arising out of SLP (Crl.) No. 1350 of 2002. The State Government too filed another Criminal Appeal No. 1210 of 2002, arising out of SLP (Crl.) No. 1266 of 2002. The Hon''ble Supreme Court allowed both the appeals, quashed this Court''s order of bail with a liberty to the applicant to file a fresh bail application and further observed that if moved, his application shall be dealt with and disposed of on its own merits, consistently with the observations made in the judgment.

It is in pursuance of this judgment of the Apex Court that the present bail application has been moved.

A careful perusal of the judgment of the Hon''ble Supreme Court would reveal that as an abundant caution, the High Court while dealing with the bail plea, should be conscious of the reasons for rejection of the prayer for bail as assigned by the Sessions Judge.

Secondly, the fact that the applicant was a previous convict, having been sentenced to imprisonment for life u/s 302, I.P.C. coupled with his alleged involvement in 19 more criminal cases should not be lost sight of, particularly when the offence alleged to have been committed under Sections 409 and 467, I.P.C. are again punishable with imprisonment for life or imprisonment for 10 years and fine.

Thirdly, the High Court must record its own reasons on the basis of which it is inclined to exercise its power favourable to the accused instead of the availability of the grounds as set out in the order of the Sessions Court.

While dealing with the present bail application of the accused-applicant, this Court has to keep in mind the above mentioned observations-cum-guidelines of the Apex Court.

The applicant''s contention is that the allegations made in the report/complaint are absolutely false, incorrect and wrong. The complainant Ram Pratap Yadav being involved in the offence of booth-capturing in the General Election was arrested by the police and even an order of externment was passed against him under the U.P. Control of Goondas Act. He was involved in as many as seven criminal cases. The complainant too was earlier enlarged on bail by the High Court. The applicant moved the Supreme Court for cancellation of his bail but it was dismissed. It was in this background that Mr. Ram Pratap Yadav, the informant with a view to wreak vengeance lodged the first information report with distorted facts. As a matter of fact, the informant, Principal of the school being under influence of the applicant''s political rivals tried to raise a dispute in respect of the management for his own personal benefits. The entire subject-matter of the first information report is substantially the same as pleaded in Writ Petition No. 2588 (S/S) of 1997, Tilakdhari Yadav and Ors. v. State of U.P. and Ors. Mr. Tilakdhari Yadav is the real brother of the informant Ram Pratap Yadav and they wrongfully claimed that some teachers including Tilakdhari Yadav himself, had been duly appointed as teachers and employees in the school. In fact, the relevant letter of January 24, 1996, purporting to have approved Tilakdhari Yadav and several others to be as teachers and employees was a forged and fabricated document. The original of the said letter was never traceable in the office record. Only a photostat copy thereof was filed and in spite of the repeated orders and directions, the original of the alleged letter was never produced before the Court. This Court had directed in the aforesaid writ petition the Director of Education to appoint an officer to hold an enquiry and furnish a report to this Court. In compliance with the said order of the Court, the Director of Education appointed Deputy Director, I Xth Region, Faizabad, to conduct an enquiry. After a full-fledged enquiry, the Deputy Director recorded a finding that the letter/document produced by the applicant was genuine and the persons mentioned in that list were genuinely appointed while the letter filed by Mr. Tilakdhari Yadav and others was a forged document. All those teachers and employees against whom allegations have been made in the first information report have been found to be genuine teachers and employees of the school.

Yet another Writ Petition No. 6299 (S/S) of 2002 has been filed by Tilakdhari Yadav, the brother of the informant Ram Pratap Yadav and the Court had, by virtue of an interim order of November 18, 2002, issued instructions for payment of salary to the teachers who have been working as such and thereafter, the District Inspector of Schools could enforce the genuine list of teachers.

It was alleged further that an enquiry was earlier conducted into the allegations against the Principal for the embezzlement and misappro-priation of the school funds and property and after a full-fledged enquiry, the informant was found to be guilty. On the basis of the said report, the District Inspector of Schools has already recommended to the Secondary Education for dismissal of the complainant from service.

As regards the allegations made in the first information report, it has been alleged by the applicant that the Manager does not withdraw the salary of any teacher or employee and the procedure for drawal of salary is that after approval of the grant on the basis of the signatures of the Principal and counter-signature of the Manager, the salary is drawn through Government cheque and credited into the account of the concerned teacher or the employee and no transaction takes place between the Manager and the Management. The allegations of some teachers having been appointed in place of others under forged signatures of the District Inspector of Schools is falsified from the enquiry report and the observations of this Court in its order of November 18, 2002 passed in writ petition No. 6299 (S/S) of 2002.

As regards Ram Naresh Maurya, it was stated that some documents were manufactured by him at the behest of the Principal, Ram Pratap Yadav but the former exposed his misdeeds by reporting the matter to the police by virtue of his complaint, a copy of which is Annexure-11 on record. Similarly, Subedar Yadav lodged a report against the Principal. The salary of Bhanu Pratap Yadav and all others is being paid.

The applicant under the influence of political rivalry was implicated in a case registered u/s 307, I.P.C. He was granted bail by this Court. Special leave petitions were filed against the order for grant of bail but the Supreme Court declined to interfere.

The reason for the applicant being implicated in this case as alleged by him is that one Mawai had killed an innocent person Mohammad Shami showing him an activist of SIMI for which a case was registered against the police and when no action was taken against the erring personnel, the applicant had staged a demonstration on 15.9.2001. It was with a view to prevent him from raising his voice against atrocities of the police and staging such a demonstration that a conspiracy was hatched against him and it was in this sequence of events that Ram Pratap Yadav, on being instigated by the district authorities, lodged the first information report on the basis of which the applicant has been detained in this case.

Also pleading his serious medical problem, the applicant stated that he has suffered a severe heart attack on November 17, 2002 and as a consequence, underwent treatment like angiography and ballooning. Though, he was discharged from the S.G.P.G.I., Lucknow on 29.11.2002, yet suffered serious heart problem even thereafter. This plea of serious ailment has also been pressed into service as an additional ground for seeking bail.

Two counter-affidavits have been filed on behalf of the prosecution-one by Sri. Amar Singh, Sub-Inspector, Police Station Tarun, district Faizabad and the other by Sri Ram Pratap Yadav, Informant. Both have taken common grounds to resist the applicant''s plea for bail. According to them, it was wrong on the part of the accused to plead that the allegations levelled against him in the first information report were based either on rivalry and enmity or any other kind of political influence ; rather, it was the other way round that the accused committed, by misusing his position as M.P. and M.L.A., series of heinous crimes along with his musclemen and associates. He has a long drawn criminal history inasmuch as 33 cases were pending against him in the various courts of law. He was convicted in a murder case and sentenced to life imprisonment, which was upheld by the Hon''ble Supreme Court. However, exercising his political influence, he succeeded in getting remission u/s 401, Cr. P.C. but it did not in any way reduce the gravity of the charge, which is established against him. He was also involved in the murder of the Station Officer, P.S. Inayat Nagar and also prompted his associates to set the police station ablaze. In Case Crime No. 238 of 2001, i.e., the case in hand, the applicant, by forging and fabricating a letter of the District Inspector of Schools, committed offences under Sections 419/420/467/468/471/409, I.P.C. and the Investigating Officer has already submitted a charge-sheet against him. His request for bail was rejected by the Xth Additional Sessions Judge on 12th October, 2001 by means of a detailed order. After being released on bail by this Court, he misused the liberty and committed number of offences while being on bail.

In addition to above, Sri Ram Pratap Yadav asserted that the applicant was hand in glove with the teachers, who were appointed on the basis of a forged letter and it was he who caused loss to the State Exchequer by drawing salary for the fake appointees. He also questioned the result of the enquiry conducted by the Joint Director of Education. As stated by him, the Joint Director of Education did not summon Smt. Veenita Boudh, then District Inspector of Schools nor he had mentioned the correct facts in his report. Smt. Veenita Boudh signed the letter in which the name of Tilak Dhari Yadav was in the list of teachers. The other letter relied upon by the applicant was said to be forged and fictitious. He has also controverted that the applicant was suffering from any kind of serious ailment.

I have heard learned Counsel for both the parties as well as learned A.G.A. and perused the record.

Mr. I. B. Singh, learned Counsel for the applicant, first of all, assailed the veracity of the first information report on the ground that it suffers from inordinate delay. The anchor sheet of the prosecution case is the alleged forged letter dated 24.1.1996, a copy of which is Annexure-5 on record. It is stated that some of the teachers, whose names are recited in this letter, were employed by the applicant with a view to allow them not only to join as assistant teachers and employees but also to permit them to derive the advantage, of higher pay-scales with effect from the date, the college was brought into the category of ''grant-in-aid''.

In this context, it is relevant to note that the said letter was allegedly forged in the year 1996 but the first information report (Annexure-3) was lodged more than five years after on September 16, 2001. They were getting their salary with effect from April, 1996 and Ram Pratap Yadav was the Principal of the College. But he never reacted to this forged letter. No explanation for the delay has been offered and this creates a doubt on the genuineness of the First Information Report. Further, the letter (Annexure-5) is bearing No. 11/4549-50/95-96, dated 24.1.1996. On the other hand, the letter relied upon by the informant, a copy of which, Annexure-4 on record, is neither bearing any number nor the academic session has been properly described. Since the letter was issued in January, 1996, the accurate academic session was 1995-96 and not 1996-97. These two-omission and error clearly strike at the root of the letter (Annexure-4). The Joint Director (Education), vide his letter of September 6, 2002, has issued orders for release of the salary of those teachers and employees, whose names find place in the list contained in letter (Annexure-5) i.e., the one relied upon by the accused. Further, it is important to note that a committee of three senior officers of the Education Department comprising Sri Satish Chandra Srivastava, Regional Joint Director (Education) ; Dr. Madhuri Srivastava, Deputy Regional Director (Education) and Sri Asghar Sayeed, District Inspector of Schools, Faizabad, has submitted its report (copy Annexure-8) and arrive at a conclusion that according to the records available in the office of the District Inspector of Schools, Faizabad, the list contained in letter January 24, 1996 in which the name of Bhanu Pratap and others figure is genuine and, therefore, all teachers and employees of the said list were entitled to get payment of their salary with effect from 1st April, 1996. It has been submitted on behalf of the informant that it was an ex parte report and therefore, not worth credible. The contention is devoid of merit as it was based on the record available in the office of the District Inspector of Schools, Faizabad and the Enquiry Officer, then Regional Deputy Director (Education) has also endorsed the said list vide his report of July 10, 1997. Smt. Veenita Boudh, who has simply stated that his signatures on letter (Annexure-5) were not clear, has neither categorically denied that the said letter was contrary to the record of her office nor she has explained as to how and under what circumstances, the other letter of January 24, 1996, which is relied upon by the informant, did not bear any letter number and also why the wrong academic session was endorsed thereon. Even the Director of Education, who is No. 1 position holder in the Education Department of U. P., has vide his report submitted in Writ Petition No. 2588 (S/S) of 1997 raised his doubt upon the genuineness of the list of teachers contained in the letter (Annexure-4), i.e., relied upon by the informant. Simultaneously, he believed the other letter.

The next question, which may crop up for consideration, would be as to who may be more interested in preparing the forged letter-whether the informant or the accused. The accused was admittedly the Manager of the College and the informant its Principal. The Principal was expected to deal with the day-to-day and routine affairs of the college. Sri Tilak Dhari Yadav, who is stated to be the real brother of the informant-a fact, which has not been denied by him, would have certainly been interested in getting the letter (Annexure-4) prepared and as said above, from a bare perusal of the said letter, it appears to be, as can be observed at this juncture, a fake document manufactured to serve the cause of those whose names wrongly figure therein. It has not been controverted on behalf of the informant or the State that according to the Intermediate Education Act, there is a bar on appointment of a teacher related to either the Principal or the Manager of the college. It has been submitted on behalf of the applicant during the course of arguments that in order to conceal his relationship with the Principal, Tilak Dhari had given different parentages in different proceedings and the accused in Writ Petition No. 2588 (S/S) 1997 has moved an application u/s 340, Cr. P.C. for proceedings to be initiated against him for the forgery. It has been stated further by the accused that he was a sitting Member of Parliament in the year 1996 and, therefore, could not supervise the daily routine affairs of the college. Taking advantage of his absence, the informant, who was, then Principal of the college got his brother, Tilak Dhari appointed as teacher against the provisions of the Intermediate Act.

Apart that, the informant, Ram Pratap Yadav too has a criminal history. He is involved in several criminal cases as recited in para 14 of the affidavit filed along with the bail application. In the list of the criminal cases, which are said to be pending against the accused-applicant (Annexure-C.A. 5), the last 14 cases, i.e., S. Nos. 18 to 31, have been registered on the complaint of Sri Ram Pratap Yadav and there is said to be a cogent reason for him to have become complainant against the accused in more than a dozen cases most of them being registered under Sections 420/468 and 323, I.P.C. In the cases from S. Nos. 1 to 17, the accused was convicted in one case, while the remaining cases either ended up in his acquittal/discharge or the final report was submitted. The ground of the accused being a previous convict for rejection of his bail plea would be dealt with in the latter part of this order. Here, it is relevant to mention that the last 14 cases were initiated at the instance of the informant and all were got registered after 2001, i.e., after he has been dismissed rightly or wrongly, legally or illegally by the Committee of Management, headed by the accused-applicant. It may be different that his dismissal order might not have yet been approved by the competent authority. But the fact remains that he has been ousted from the college by the accused-applicant on the ground of several illegalities and irregularities alleged to have been committed by him and this appears to be the main cause of his having emerged with the sudden gushing out of grudge and lodged as many as 14 complaints under various sections of the Indian Penal Code. Obviously, thus, he has a very strong motive to falsely implicate the applicant in the case in hand. Otherwise also, it is difficult to sustain the argument that the accused-applicant is guilty of misappropriation of funds amounting to Rs. 22 lacs i.e., paid to the teachers. According to the U.P. Education Manual, the salary of every teacher and employee is credited to his/her bank account. In other words, it is neither remitted to the management for disbursement to the individual teachers or the employees nor it is paid to them in cash. This position has not been controverted by the learned A.G.A. and the learned Counsel for the informant. Even if for argument sake, it is assumed that some of the teachers were surreptitiously and illegally included in the list of teachers, the Manager cannot be held guilty of misappropriation of funds unless it is established beyond doubt that a part of such salary or salaries has been paid to him as reward or share for his misdeeds. It is different that in such circumstances, a Manager can be held guilty and punished for forgery, cheating or fabricating false evidence but by no stretch of reasoning, he can be held guilty for misappropriation of funds and particularly when there is not an iota of evidence to indicate or show that he had received any part of such conspiracy-based-salaries.

Dr. L. P. Mishra, learned Counsel for the informant contended with reference to a decision of the Apex Court, Ram Prakash Pandey v. State of U.P. 2001 (3) ACrR 2331 (SC) : 2001 AIR SCW 3377, that a person, who has been previously convicted of an offence punishable with life imprisonment shall not be released on bail unless there is no reasonable ground for believing that the person has committed the offence and/or there are special reasons to be shown. In that case, the accused was absconding even after conviction. Therefore, his bail plea in another case on account of his being convicted and being at large was rejected. In the case in hand, no doubt, the accused has been convicted and sentenced to life imprisonment but indeed there does not seem to be a reasonable ground on the basis of which he can be believed to have committed any offence as alleged by Sri Ram Pratap Yadav in his First Information Report. The allegations of his report are belied on the face of the fact that the letter dated 24th January, 1996 relied upon by the accused-applicant in which figure the name of Bhanu Pratap and several others has been found to be genuine, as per record available in the office of the District Inspector of Schools, by a High Level Committee of three senior officers of the Education Department. Further, there is not an iota of evidence to indicate that any part of the teacher or employees'' salary was ever paid to the accused. Therefore, he cannot be said to have misappropriated any funds. In view of the report referred to above, the offence of cheating or manufacturing forged letter also cannot be said to have been committed. Nothing concrete or incriminating material has been pointed out in respect of the alleged offence of tampering with records pertaining to the appointment of Subedar Yadav and Ram Naresh Maurya.

Therefore, considering all the facts and circumstances of this case, I find that there are reasonable grounds to believe that the accused-applicant has not committed any offence, as alleged, in the First Information Report.

The observation of the learned Additional Sessions Judge that the accused-applicant may go underground or by exerting his influence, he may win over the witnesses is not based on any sound reasonings. The result of the prosecution case will depend upon the documentary evidence available in the various offices of the Education Department. Most of the witnesses are with the informant, who himself seems to be a very strong person and he or any other witnesses would be won over by the accused does not seem to be sustainable even if the accused-applicant has a criminal history behind him. As discussed above, Ram Pratap Yadav got as many as 14 cases registered against the applicant and in several cases, he has been acquitted. No incident of the accused having tried to influence the witnesses has been brought on record or to the notice of the Court. The argument that he indulged in the cases of marpeet after he was released on bail, in this case, by this Court cannot be accepted to be as sustainable for the simple reason that the extent of the veracity of such cases has yet to be decided on trial. In other words, it may be observed that mere registration of a criminal case does not lead to a circumstance, which can be said to be indicative of his guilt. Every case has to be scrutinized with reference to the allegations levelled by the complaint.

Therefore, it is difficult to subscribe to the view of the learned Additional Sessions Judge that in the circumstances of this case, the applicant would either influence the witnesses or try to disappear and in case, he is found to have misused the liberty of bail, the prosecution can always take recourse to the remedy of cancellation of bail by approaching this Court and the other way to deal with such a situation is to move for cancellation of the remission granted to him by the Government. Further, there are cross-cases pending against the informant and his brother and other persons of their group. The applicant lodged a report, which was registered as No. 223 of 2001 under Sections 147/148/149 and 307, I.P.C., which is still said to be under investigation. In that case, bail had already been granted to the accused Ram Pratap Yadav, Tilak Dhari and others who were accused of that case and an attempt on the applicant''s life was said to have been made as is alleged in the first information report (Copy Annexure-13). Thus, in view of the long drawn and still going on animosity between the two parties, there does not seem even the rarest possibility of the witnesses of the other party either being influenced or won over by the applicant.

In addition to above, the applicant is suffering from serious heart problem. He has undergone angiography and ballooning therapy. He is about 68 years old. He has to pay for his treatment a sum of Rs. 1,37,761 as is evident from the bill of Sanjay Gandhi Postgraduate Institute of Medical Sciences, Lucknow. Even during the pendency of this bail application, he had to come across cardiac problems. The certificate on record (Paper No. 59 of S.G.P.G.I.) reflects his coronary artery ailment. Whereas the applicant''s illness on one side allows him to plead as an additional ground while seeking bail, on the other, as argued by the learned Counsel for the applicant, he being not a physically fit person may not indulge in any physical or mental or criminal activities.

The long and short of the discussions made above is that there are reasons to believe which are indicative of the belief that the accused does not seem to have committed any offence. Accordingly, it may be held that he deserves to be released on bail. However, the discussions including the reasonings referred to above will not in any way prejudice the cause of the prosecution during the course of trial. The observations have to be made with a view to comply with the Hon''ble Supreme Court''s directions to deal with the findings of the learned Additional Sessions Judge and come to a categorical observation as regards the allegations for commission of offences.

In view of above, the applicant''s prayer for bail is granted and accordingly, he is released on bail on his executing a personal bond of Rs. 1 lac with two sureties each of the like amount to the satisfaction of the Chief Judicial Magistrate, Faizabad.