The Allahabad High Court has granted the anticipatory bail of a constable accused of demanding bribes and has sought an affidavit of the action taken under the Prevention of Corruption Act against police personnel in Gautam Buddha Nagar in the last three years.
A Single Bench of Justice Sanjay Kumar Singh passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Ankit Baliyan.
The Criminal Misc Anticipatory Bail Application under section 438 Cr.P.C has been moved by the applicant after rejecting his anticipatory bail application by the order dated 06.11.2023 passed by the Additional Sessions Judge/ Special Judge, Meerut seeking Anticipatory Bail in Case under Section 13(1)(a) Prevention of Corruption Act, Police Station Bita-2 Noida, District Gautam Buddh Nagar.
As per the prosecution case the informantChandra Prakash Sharma, Senior Sub-Inspector, Police Station Bita-2 Noida, District Gautam Buddh Nagar lodged First Information Report on 08.09.2023 at 02:31 PM against the applicant-Ankit Baliyan (Constable) under Section 13(1)(a) of the Prevention of Corruption Act, alleging inter alia that a whatsapp voice call recording between Wasim Kabadi and applicant-Ankit Baliyan, which is going viral since 07.09.2023 was sent by Media Cell, Gautam Buddh Nagar, on social media on 08.09.2023, in which applicant who was posted as Constable in Police Station Rabupura, District Gautam Buddh Nagar is threatening Wasim Kabadi to implicate him in a false case and demanding Rs 1,00,000/- from Wasim Kabadi (scrap dealer).
Regarding the said audio call recording, another application dated 05.09.2023 of Wasim Kabadi addressed to the Chief Minister is also going viral, in which Waseem Kabadi has requested to take action against the applicant-Ankit Baliyan regarding demand of illegal gratification of Rs 25,000/- per month and bribe of Rs one lakh through whatsapp call from his mobile. Due to which the image of the police department is being tarnished. In relation to which higher authorities were informed and higher authorities directed to take legal action against the applicant-Ankit Baliyan.
Counsel for the applicant argued that:-
(i) Chandra Prakash Sharma, Senior Sub Inspector lodged the first information report mentioning inter alia that information about the whatsapp voice call recording in question was given to higher officers, who had directed to take legal action against the applicant. Thereafter, the first information report has been lodged whereas it is not mentioned who gave information about the whatsapp voice call recording in question to the higher authorities and by which mode.
(ii) Even the name of higher officers to whom information was given about alleged whatsapp voice call recording has not been disclosed.
(iii) Much emphasis has been given by contending that in the first information report, it is also not mentioned that on whose direction/order, the first information report has been lodged by Chandra Prakash Sharma, Senior Sub-Inspector against the applicant.
(iv) As per the version of first information report, whatsapp voice call recording went viral since 07.09.2023 and on the same day, i.e, 07.09.2023, Assistant Commissioner Police-IV, Greater Noida and Deputy Commissioner of Police, Greater Noida submitted their report against the applicant and thereafter Ram Badan Singh, Commissioner of Police, Gautam Buddha Nagar dismissed the applicant from service without any show cause notice or inquiry, etc which is major punishment and the same is violative of principle of natural justice and Article 311 of Constitution of India. Copy of dismissal order dated 07.09.2023 of the applicant produced by the counsel for the applicant during the course of argument, is kept on record.
(v) As per the version of the first information report, whatsapp voice call recording between the applicant Ankit Baliyan and alleged victim Waseem Kabadi went viral since 07.09.2023 whereas whatsapp call cannot be recorded.
(vi) Till date, the source of the alleged whatsapp voice call in question has not been traced out.
(vii) There is no certificate under Section 65B of the Evidence Act regarding genuineness of alleged whatsapp voice call recording, hence the same cannot be read in evidence and in absence of required certificate under Section 65B of the Evidence Act, no prosecution of the applicant can be done on the basis of said fake and fabricated whatsapp voice call recording.
(viii) The alleged whatsapp voice call recording is fake and fabricated material.
(ix) Since the applicant has been falsely implicated on the basis of fake and fabricated whatsapp voice call recording, therefore, the Investigating Officer deliberately did not take any pain to investigate about the source of alleged whatsapp voice call recording.
(x) At the time of hearing of the anticipatory bail application of the applicant before the Court of Additional Sessions Judge/Special Judge, Special Court (Prevention of Corruption Act), Meerut, the alleged victim Waseem Kabadi moved an application dated 26.10.2023 along with his affidavit dated 26.10.2023 mentioning therein that no such incident took place with him. The entire story of the applicant is fabricated and the applicant has been accused on account of personal rivalry with the police. In the affidavit, it is also mentioned by the victim Waseem Kabadi that he does not know Ankit Baliyan and he never demanded any money from him.
(xi) There is no statement of Waseem Kabadi.
(xii) Till date, neither voice sample of the applicant nor of the alleged victim Waseem Kabadi has been taken by the Investigating Officer for the purpose of its examination by the Forensic Science Laboratory.
(xiii) The applicant has no criminal history to his credit.
(xiv) The applicant has been falsely implicated and the police are not conducting a fair investigation.
(xv) The applicant has apprehension of his arrest and his false implication in other cases.
Having heard the submission of the counsel for the parties and going through the record, the Court is of the view that if the facts as pointed out by the counsel for the applicant as noted above is true, then it is a matter of serious concern because whatsapp calls are not recorded. But the Court feels that before passing any final order in the matter, it would be appropriate to give one opportunity to the State to file a counter affidavit, the Court observed.
Accordingly, the Court directed the Commissioner of Police, Gautam Buddh Nagar to file a personal affidavit/counter affidavit in the matter regarding the above submissions made on behalf of the applicant as noted after seeking response from the informant and Investigating Officer of the case. Affidavit shall further indicate that in last three years, how many cases for the offence under the Prevention of Corruption Act, have been registered against police personnel in District Gautam Buddh Nagar and in how many cases accused-police persons have been dismissed from service on the same day without any show cause notice or proper enquiry, as done in the matter. The affidavit shall further indicate what was the urgency or compelling circumstances for the State to dismiss the applicant on the day the alleged video went viral, i.e on 07.09.2023 itself without any show cause notice to the applicant or conducting proper and regular enquiry.
The Court has fixed the next hearing of the petition on March 12, 2024.
In view of the above, the Court is of the view that the applicant is entitled for interim anticipatory bail. Accordingly, the Court directed that until further orders of the Court, the applicant shall not be arrested in the aforesaid case.
On the next date, Ram Krishna Tiwari (Investigating Officer)/Assistant Commissioner of Police, Greater Noida and informant-Chandra Prakash Sharma, Senior Sub Inspector shall appear in person before this Court along-with complete record of this case to assist the Additional Government Advocate, the Court ordered.