POOJA AGARWAL vs. COMMISSIONER OF INCOME TAX

HIGH COURT OF UTTARAKHAND AT NAINITAL Anticipatory Bail Application No. 38 of 2020

Rajkumar

...Applicant Versus

State of Uttarakhand & Others ….Respondent

Present:- Mr. T.A. Khan, Senior Advocate, assisted by Ms. Sadaf Gaur, Advocate for the applicant. Mr. V.S. Rathore, A.G.A. for the State of Uttarakhand.

Hon’ble Ravindra Maithani, J. (Oral)

Applicant Rajkumar seeks anticipatory bail, in FIR No. 06 of 2020, under Sections 13(1)(e) read with Section 13(2) of Prevention of Corruption Act, 1988, Police Station – Vigilance Establishment, Sector Nainital at Haldwani.

Heard learned counsel for the parties and perused the record.

The applicant is Lekhpal. An open inquiry was conducted by the Vigilance Department of the State of Uttarakand. Admittedly, applicant was required to give his explanation in the enquiry. After enquiry, it was concluded that an FIR needs to be lodged against the applicant. That is how the FIR has been lodged. According to the FIR, which is quite in

2 detail, during the check period, the applicant had assets to the tune of Rs. 26,87,037/- in excess to his known source of income.

Learned Senior Counsel appearing for the applicant would submit that it is a case, which depends on evidence. In case the applicant is arrested, on the one hand, it would affect his personal liberty and, on the other hand, it would ruin his career even before trial. Learned Senior Counsel would submit the following points in his submission:-

(i) the rent which the applicant received from his various properties has not been taken into consideration.

(ii) the agricultural income of the applicant has not

been taken into consideration.

(iii) the father’s property of the applicant has wrongly

been taken into consideration.

Reference has been made to certain documents to show that, in fact, the applicant had sold agricultural produce and there are records of it; a certificate of a Tehsildar has also been referred to, in which, the Tehsildar writes as to what was the crop in the year 2004-2005 and subsequent years in the land of the applicant and how much crop did it yield, and what was its cost, etc. Reference has also been made to certain receipt

3 pertaining to sugarcane. Learned Senior Counsel would submit that it is a case for anticipatory bail.

On the other hand, learned State Counsel would submit that after an open enquiry, when the property of the applicant was found beyond his known source of income, the FIR has been lodged.

Undoubtedly, personal liberty is one of the precious rights, as enshrined in our Constitution. It cannot be taken away except in accordance with the procedure established by law. Bail as well as anticipatory bail balances between right to personal liberty of an individual and societal interest. In fact, somehow, anticipatory bail also enters into the realm of investigation. The Investigation Officer may require custodial interrogation in some cases. The factors that may be taken into consideration while dealing with the anticipatory bail include nature and gravity of the offence; exact role of an offender; antecedents of the applicant; chances of fleeing from justice; tampering with the evidence, etc.

In the instant case, FIR has not been lodged without any explanation having been sought from the applicant. An open enquiry was conducted. The applicant was given an opportunity to explain his version.

Learned Senior Counsel for the applicant would submit that the response, which the applicant had filed had not been taken into consideration.

10.

Be it as it may, the FIR is based on an open enquiry, in which the applicant was also heard.

11.

Reference has been made to the agricultural income, rents, etc. The Court wanted to know, as to whether these incomes were ever shown by the applicant in his income tax returns? To it, learned Senior Counsel for the applicant would reply in negative. Although, it is also settled law that in the cases of disproportionate assets, mere production of income tax return does not absolve the liability of a delinquent to explain the sources of income. Source of income is one thing and showing it in the income tax return is quite different thing.

12.

In the instant case, what is being argued is that, though, the applicant had source of the income but he did not show it in the income tax returns.

13.

Having considered the entirety of facts, the magnitude of the offence and the action that preceded filing of the FIR, i.e. open enquiry, this Court is of the view that there is

5 no reason to grant the anticipatory bail. Accordingly, the instant anticipatory bail application deserves to be rejected.

14.

The anticipatory bail application is rejected.

(Ravindra Maithani, J.)

23.06.2022 Ravi Bisht