IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION Dated: Nainital: the 16th day of December, 2009 1st Bail Application No. 1177 of 2009 Order on the Bail application of accused. CRIMINAL SIDE Pawan Choudhary .…. Applicant (In jail) Versus State of Uttarakhand …… Opposite Party ___________________________________________________________________ Arising out of Case Crime No. 13/2009, U/s 7/13(1)D read with Section 13(2) of Prevention of Corruption Act, 1988 P.S. Vigilance Sector, Dehradun. _______________________________________________________________ December 16, 2009 HON’BLE DHARAM VEER, J. Heard Smt. Pushpa Joshi with Smt. Neetu Singh, Advocates for the accused applicant and Mr. Amit Bhatt, Addl. G.A. with Mr. M.A. Khan, Brief Holder for the State. As per the prosecution case, the accused applicant was posted in S.O.T.F. at Hardwar. The mobile phone of the complainant Kuldeep Tomar was missing and when he told about the missing of the mobile phone to the accused applicant, he said that his mobile phone is with S.O.G. and he would get his mobile phone from there and would hand over to him only when he pays Rs. 2500/- to the accused applicant. Upon this, the complainant approached S.I. Mahipal Singh of Vigilance Department and on 13.10.2009, a trap was arranged. On that day, the complainant along with S.I. Mahipal Singh and other personnel of the Vigilance Department including independent witnesses reached at the spot where the accused applicant had instructed the complainant to give Rs. 2500/- for handing over his mobile phone. At about 4.30 pm on 13.10.2009, as soon as the complainant Kuldeep Tomar gave Rs. 2500/- to the accused applicant, the Vigilance Department trapped him along with the said bribe money and thereafter the mobile phone in question was recovered from his possession. Learned Counsel for the accused applicant submitted that the complainant is not the owner of the mobile phone in question. I do not find any merit in the submission of the learned Counsel for the accused applicant inasmuch as it has been stated in the supplementary counter affidavit filed on behalf of the State that the mobile phone in question was actually purchased by one Mohammad Ashraf from Prakash Radios on 4.1.2007 and thereafter he sold it to Kuldeep Tomar on 9.6.2009 and copies of the receipt of Prakash Radios and receipt of Mohammad Ashraf have been annexed as Annexure No. S.A. 1. Learned Counsel for the accused applicant further submitted that no independent witnesses were taken at the time of alleged trap. I do not find any substance in this submission of the learned Counsel as the name of two independent witnesses, viz., Bhupendra Prasad Thapliyal and Dinesh Chandra Singh Bisht are clearly mentioned in the recovery memo. Learned Counsel for the accused applicant further argued that the accused applicant was never associated with the S.O.G., who recovered the mobile phone in question. She further submitted that the accused applicant does not come under the definition of public servant. On the other hand, learned Counsel for the State submitted that the accused applicant is a public servant, who misused his official capacity and was arrested red handed with the bribe money of Rs. 2500/- taken by him as illegal gratification in the capacity of a public servant. I do not find any force in the argument of learned Counsel for the accused applicant as the accused applicant is covered under the definition of ‘public servant’ provided under Section 2(c)(i) of the Prevention of Corruption Act, 1988, which says that “public servant” means any person 2 in the society or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty. Having heard the submissions of learned Counsel for the parties; perusal of the contents of FIR and other papers available on record; in view of the fact the accused applicant has been shown to be arrested red handed on the fixed date and time along with the said bribe money and thereafter mobile phone in question was recovered from his possession and in the facts and circumstances of the case, the Court is of the view that there is no ground to enlarge the accused applicant on bail at this stage. The bail application is rejected accordingly. (Dharam Veer, J.) 16.12.2009 PRABODH 3