Sanjai vs State of U.P.

K.N. Sinha, J.—The present bail application has been moved on behalf of applicant Sanjai in case crime No. 70/2005 under Sections 420, 466, 467, 468, 471, 472, 120B, 218 & 477A/34 IPC and under Sections 13(2) and 13(1)(d) of Prevention of Corruption Act, police station Sector-39 Noida.

The brief lacts of the case are that FIR was lodged on 6.3.2005 under the above sections of Indian Penal Code and Prevention of Corruption Act, which was registered as case crime No. 70 of 2005 police station Sector-39 Noida. The FIR was lodged against nine persons and applicant was not named as an accused. Later on, the name of applicant came into light. The case was investigated against him and charge sheet was submitted against him.

The allegations in the FIR are that by committing fraud and forgery in revenue record of village Shahpur, non-cultivated land was shown 10 be allotted in favour of Rakesh Chandra and Shyam Lal for the years 1362-1384 F and the same entry was extended for 1398-1403 F. These persons obtained certified copy of the revenue entry and filed in case No. 11 and 12 of 2003 under Sections 33/39 of the Land Revenue Act for correction in the revenue record. On the basis of those applications, when enquiry was ordered by the Sub Divisional Magistrate, the applicant submitted a report certifying the entry recorded in the name of two persons. The case under Sections 33/39 of Land Revenue Act, filed by Rakesh Chandra and Shyam Lal, a report was called for, wherein the applicant reported that on the basis of khatauni of 1398-1403 F name of Rakesh Chandra and Shyam Lal had been entered. However, in khatauni 1401-1405 F barren land is entered. On this report, the Tahsildar acted and recommended the same. This was the allegation against the applicant. When the notices were served on Shyam Lal and Rakesh Chandra, it was reported that they did not live in village and on the basis if said report the S.D.M. ordered that name of Shyam Lal and Rakesh Chandra be deleted and also recommended departmental action against Tahsildar C.B. Gupta. FIR in this respect was lodged on 6.3.2005 against line persons, without naming the applicant in the said case and name of the applicant came into light on the basis of confessional statement of co-accused. There is no direct or documentary evidence against the applicant. The applicant only submitted the report that name of Shyam Lal and Rakesh Chandra are found in the khatauni and also the latest position regarding the land that it was recorded as barren land. In paras 16 and 17 of the affidavit, it has been deposed that the District & Sessions Judge granted bail to one Rajpal, who was working in copying action of tahsil Dadri at the relevant point of time when certified copy was issued by annexure 5. Bail was also granted to Krishna Kumar Gupta who was working as Registrar Kanoongo of record room of tahsil Dadri, who was in fact directly involved in giving the report (Annexure-2). The bail application of the applicant was refused on insufficient ground.

The learned A.G.A. has filed two counter affidavits, one on 31.8.2006, with the affidavit of J.P. Gupta Tahsildar Sadar G.B. Nagar and another on 14.7.2006 with the affidavit of Triveni Singh, Circle Officer, Jewar district G.B. Nagar.

The counter affidavit filed with the affidavit of J.P. Gupta shows that in the present case, land of two plots, namely, plot No. 194 and 11 of village Shahpur Goverdhanpur Banger pargana Dadri, tahsil Sikandarabad district Bulandshahar, now tahsil Sadar G.B. Nagar is involved. At the time of preparation of consolidation form 41, relating to the year 1367 F, plot No. 194 was marked as grazing land and site for fertilizer and khalihan. No patta could be granted in respect of the said and in view of prohibition contained in Section 132 of U.P. Z.A. & L.R. Act. The khasra extract is annexure CA-1 with this affidavit. So far as plot No. 11 is concerned, it was previously recorded as gaon sabha land barren land) even prior to consolidation and during consolidation proceeding as well. In the current khatauni too, nature of both the lands same vide Annexure CA-2. It appears from the record that accused involved in the present case with the connivance and conspiracy, got the name incorporated in respect of plot No. 11 relating to 1382-84 F and 1391-1394 F. Khatauni 1382-84 F and 1391-94F have been marked as Annexure CA-3. The lekhpal submitted report that name of Shyam Lal and Rakesh Chandra have been placed on the record and the said report was given on the basis of copy of khatauni. The said report is Annexure CA-4 with the said counter affidavit. The entries have been incorporated surreptitiously in the revenue record.

The counter affidavit filed by Triveni Singh Circle Officer states that the applicant submitted the report in favour of Rakesh Chandra and Shyam Lal, without verifying the correctness of the fact. It was later on discovered that the name of Rakesh Chandra and Shyam Lal was fraudulently recorded in the revenue record of 1382-84 F and 1391-94 F. In fact two applications were moved by Rakesh Chandra and Shyam Lal before the S.D.M. for mutating their names u/s 33/39 of Land Revenue Act whereupon a report was called for from Tahsildar, who sent the application to accused applicant, to submit the report on the basis of copy of khatauni without verifying the correctness. No evidence was found during enquiry in respect of allotment of these lands. The applicant was posted as Lekhpal of the said village and in connivance with Rajpal Singh (Copyist), Krishna Kumar Gupta (Registrar Kanoongo Tahsil Dadri), Rajendra Singh Revenue Record keeper of revenue record room, Chanda Babu Gupta Tahsildar Sadar G.B. Nagar, the entries were manipulated for the above year. The applicant, who was lekhpal, was also the member of land management committee and he was custodian of entire government lands situated in his circle and knew about khataunies and forged entries. The accused applicant could have verified the record before submitting the report but he submitted the report on the basis of certified copy of khatauni, which is a bogus and forged report. It is admitted in the counter affidavit that Rajpal and Krishna Kumar Gupta have been granted bail by the Sessions Judge on different grounds.

The applicant filed a rejoinder affidavit, after the above two counter affidavits, on the ground that applicant was neither named in the FIR nor in the statement u/s 161 Cr.P.C. of Brijesh Kumar Lekhpal, who was informant. Not only this, the applicant was not named nor any reference about his involvement was made by other witnesses Ram Veer Singh Incharge Registrar Kanoongo, Sushil Kumar Naib Tahsildar and Bal Veer Singh Registrar Kanoongo Tehsil Dadri in their statements u/s 161 Cr.P.C. Copy of statements has been filed I as Annexure RA-1 to the rejoinder affidavit, it has been further stated that charge sheet has already been submitted by the police and in the entire case diary except for the statement of main co-accused Moti Lal Goyal, Rajpal (Annexure RA-2) there is nothing on the record to connect the applicant with the commission of the present offence in question. Not only this, the statement of Rajpal clearly shows that certified copy of | the impugned khatauni relating to the year 1398-1403 F were issued by him in the name of Rakesh Chandra and Shyam Lal, who are the beneficiaries and also co-accused in the present case. The applicant submitted his report being asked by Tahsildar, solely on the basis of certified copy of the khatauni. Thus, even accepting the entire uncontroverted prosecution case, the applicant cannot be said to have been involved in commission of the offence. Besides the two accused, who have been granted bail by the Sessions Judge, the accused Chanda Babu Gupta, wru was the then Tahsildar of the relevant Tahsil, was also released on bail by the Sessions Judge on 27.4.2006. A copy of the order is Annexu e RA-5 to the rejoinder affidavit. In this case, the three accused have a ready been granted bail whereas the case of applicant stands on much better footing than Chanda Babu Gupta, Rajpal and Krishna Kumar Gupta. As admitted by Rajpal (Annexure RA-2 to the rejoinder affidavit), a certified copy of the impugned khatauni was prepared by him and applicant had nothing to do with the same. If he can be granted bail, who was the responsible for the issue of certified copy, the bail application of the present applicant could not have been rejected, who simply gave a report on the basis of certified copy of khatauni issued by Rajpal, who has already been admitted to bail.

I have heard Sri S.F.A. Naqvi learned Counsel for the applicant and Sri Vidhu Bhushan Singh Additional Advocate General and supported by Sri Sudhir Mchrotra A.G.A. and Sri Mahendra Pratap Singh Special Counsel for the prosecution. I have perused the impugned order rejecting the bail application of the applicant, affidavit, counter affidavit, rejoinder affidavit and annexures filed therewith, besides the various authorities of Hon''ble The Apex Court on the point of deciding bail applications and photo copy of the judgment of this Court recorded in bail application No. 7623/2005 and its connected cases.

So far as the photo copy of the judgment in Bail Application No. 7623/2005 and connected cases is concerned, it relates to four persons, whole names have been recorded in the revenue papers and they have been shown the actual owners of the land. The case of the present applicant is only on the basis of giving a report hence this judgment has no application on the facts of the present case.

The judgment of Hon''ble the Apex Court, to quote, are as follows:

(i) 2005 SCC 481 Jayendra Saraswathi Swamigal v. State of Tamil Nadu;

(ii) 2005 SCC )489 Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr.;

(iii) (55) 2006 ACC 1014 Anil Kumar Tulsiyani v. State of UP and Anr.;

(iv) State Vs. Amarmani Tripathi,

(v) (2002)3 SC 598 Ram Govind Upadhyay v. Sudarshan Singh and Ors.;

(vi) Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another,

(vii) (2004)7 SCC 539 Union of India and Anr. v. Rajesh Ranjan @ Pappu Yadav;

(viii) 2005 SCC 705 Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. and then again,

(ix) 2005 SCC 489 Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr.

I have perused these judgments. In these judgments, certain guide lines have been laid down. All these judgments relate to the cases of murder. Five judgments in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another have been cited. It appears that learned A.G.A. has not taken care of this fact that judgment in the case of Rajesh Ranjan Alias Pappu Yadav relates to murder of Ajit Sarkar, whose matter of bail is being put up again and again. The judment in the case of Amar Mani Tripathi is still a hard case wherein a lady Madhumita Shukla was shot dead pursuant to a conspiracy involving Amar Mani Tripathi and his wife Smt. Madhumani Tripathi. Amar Mani Tripathi had an affair with the deceased Madhumita Shukla, who led to Madhumita''s pregnancy thrice. On the first two occasions, the pregnancy was aborted at the instance of Amar Mani Tripathi. On third time, when she refused, she was murdered and six months'' old foetus was found in her womb. The DNA test of the foetus established the pjttrnity of Amar Mani Tripathi. Thus, these are the hard cases of murder which have been filed in support of the case whereas this is a matter of only report by Lekhpal. However, guide lines regarding grant of bail as laid down by Hon''ble the Apex Court have been kept In the mind while disposing of this bail application that where there is any prima facie or reasonable ground to believe that the accused had committed the offence; nature and gravity of the charge; severity of the punishment in the event of conviction; danger of the accused absconding or fleeing, if released on bail; character, behaviour, means, position and standing of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being tampered with; and danger, of course, of justice being thwarted by grant of bail has to be considered.

I have considered the counter affidavit, judgments and the case diary in this case.

Learned counsel for the applicant has mainly drawn my attention towards two or three points. Firstly, that the entries relate to the year 1382-84 F that such interpolation was made and it was then repeated in the year 1391-94 F. The rejection order shows that applicant Sanjai remain posted there from 18.10.2000 to 3.9.2003. The name of applicant does not find pi. ice in the FIR or in the statement of informant Lekhpal u/s 131 Cr.P.C., nor in the statement of other prosecution witnesses Ram Veer Singh Incharge Registrar Kanoongo, Sushil Kumar ff Naib Tahsildar and Bal Veer Singh Registrar Kanoongo Tehsil Dadri, which are Annexure RA-1 to the rejoinder affidavit. It has only come in the statement of co-accused.

Learned Counsel for the applicant has submitted that the report, which is said to be the basis of involvement of present applicant, is Annexure 2, which shows that applicant Lekhpal has reported that in the extract of khatauni 1398-1403 F based on certified copy of khatauni, name of Shyani Lal is entered in khata No. 81 but in the recent khatauni of 1404-05 F the barren entry is entered in khata No. 140. He has given simple report on the basis of certified copy of the khatauni, where as Krishna Kumar Gupta has given a detailed report and also recommended the name of Shyam Lal and Rakesh Chandra to be entered. Sri Gupta had thoroughly examined khatauni and found that no other order is endorsed thereon and is a clerical mistake hence names of Shyar Lal and Rakesh Chandra be entered. He has been granted bail vide order annexed as Annexure RA-5. I have perused the order Annexur? RA-5 annexed with the rejoinder affidavit and the contention of the learned Counsel for the applicant is correct. Learned counsel for the applicant has further submitted that the certified copy was issued by Rajpal, a co-accused in this case, who has himself stated that he has issued the copy. The relevant portion of the entry 40 of case diary dated 30.5.2005 shows that he had connived and in order to wrong benefit the forged copy was issued. The said Rajpal has also been granted bail by Sessions judge on 6.12.2005 as Annexure 5 along with Krishna Kumar Gupta Kanoongo of the record room vide Annexure 6. On the strength of bail granted to three co-accused learned Counsel for the applicant has submitted that those bail orders are very much in existence and not been challenged anywhere and the applicant is to be bailed out as his case stands on better footing.

I have given my anxious consideration and perused all the three bail orders, which show that report by Krishna Kumar Gupta tahsildar was more elaborate recommending the name of beneficiaries to be mutated and act of Rajpal, who was responsible for issue of copy of khatauni in the record room and Krishna Kumar Gupta Kanoongo record room, was more serious.

Thus, without considering the merits of the case and in view of the fact that three co-accused were granted bail, I find the case of the applicant to be a fit case for grant of bail.

Let applicant Sanjai son of Fakeer Chand be released on bail in case crime No. 70 of 2005 under Sections 420, 466, 467, 468, 471, 472, 120B, 218, 477A/34 IPC and u/s 13(2) and 13(1)(d) of Prevention of Corruption Act police station Sector-39 Noida district G.B. Nagar. on his furnishing a personal bond and two sureties each, subject to the satisfaction of the court concerned.