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The Code Of Criminal Procedure, 1973
Section 13 in The Code Of Criminal Procedure, 1973
Section 438 in The Code Of Criminal Procedure, 1973
Section 467 in The Code Of Criminal Procedure, 1973
The Prevention of Corruption Act, 1988

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Gujarat High Court
Chandubhai vs State on 17 September, 2008
Author: M.R. Shah,&Nbsp;

Gujarat High Court Case Information System

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CR.MA/11862/2008 9/ 11 ORDER

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL

MISC.APPLICATION No. 11862 of 2008

=========================================================

CHANDUBHAI

BACHUBHAI VAGHASIYA - Applicant(s)

Versus

STATE

OF GUJARAT & 1 - Respondent(s)

========================================================= Appearance :

MR

YOGESH LAKHANI, SR.ADVOCATE WITH MR. GHANSYAM MAKWANA for Applicant(s) : 1,

MR RC KODEKAR, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,

None for Respondent(s) :

2,

=========================================================

CORAM

:

HONOURABLE

MR.JUSTICE M.R. SHAH

Date

: 17/09/2008

ORAL

ORDER

1. Heard

Mr.Yogesh Lakhani, learned Senior Advocate appearing for the petitioner and Mr.R.C.Kodekar, learned APP appearing for the respondent-State at length.

2. Present

application is filed by the petitioner ? original accused ? Sarpanch of Village ? Kotada Sangani and Chairman of Watson Committee and Sitting Member of Legislative Assembly, under Section 438 of the Criminal Procedure Code for anticipatory bail in connection with complaint being C.R.No.I-96 of 2008 registered with Kotada Sangani Police Station for the offences under Sections 405, 406, 409, 420, 465, 467, 468, 471, 477(1), 120B & 114 of the Indian Penal Code read with Sections 7, 12, 13(c) and 13(d) of the Prevention of Corruption Act for misappropriation of approximately Rs.47,30,009/- which was to be used for providing drinking water in the rural areas under the scheme floated by Central Government, for which 90% of the grant was to be paid by the Central Government and 10% by the village people.

3. At

the outset it is to be noted that complaint is filed not only against the petitioner but the complaint is filed against other co-accused inclusive of Government Officials i.e. Executive Engineer, Additional Executive Engineer also. There was a scheme floated by Central Government for providing drinking water in rural areas and 90% of the grant was to be paid by the Central Government and 10% was to be paid by the village people. For the purpose of proper use of grant, State of Gujarat appointed Gujarat Water Supply and Sewerage Board ('GWSSB' for short) as nodal agency and for the said purpose, Watson Committee was constituted under the Chairmanship of the petitioner being Sarpanch who submitted proposal for providing infrastructure for drinking water. The village people under the Chairmanship of the petitioner collected 10% amount and deposited it in the said account. Executive Engineer, GWSSB, Rajkot was also member of the Watson Committee and directed his subordinate to prepare estimates and costs of project to be carried out at village ? Kotada Sangani. Initially estimate was prepared for Rs.28,85,100/-, however, same was further revised making it to Rs.65,69,000/-. That was again sanctioned for Rs.61,09,200/- and agreement was executed between village Kotada Sangani and Executive Engineer, Sector Reform Scheme, Rajkot. Measurements were taken, bills were submitted and they came to be sanctioned and paid. Allegations against the petitioner and other co-accused inclusive of Government Officials is that though work was not done as per the measurements and materials were not used; by preparing false bills and by making incorrect measurements, payment was made by adopting illegal means and corruption etc. of Rs.47,30,009/-. Therefore, complaints were made in the State Government against commission of offence by various persons and including committing malpractice, preparing bogus bills, sanctioning bills, making payments and indulging into corrupt practice. The Committee constituted by the State Government found that work was not carried out as per specification, sufficient proper materials were not used, by preparing wrong measurements making entry in the measurements books, bills have been got sanctioned by adopting illegal and corrupt means. That detailed report was submitted by the Executive Engineer, Roads and Buildings Department, Rajkot before the concerned Police Officer of Village ? Kotada Sangani. Thereafter, complaint came to be lodged by the original complainant ? Executive Engineer, Road and Buildings Department, Rajkot against the petitioner and other co-accused for the aforesaid offence being C.R.No.I-96 of 2008. Pursuant to the said complaint as petitioner was apprehending his arrest, the petitioner preferred Criminal Misc.Application No.235 of 2008 before the leaned 2nd Sessions Judge, Gondal for anticipatory bail under Section 438 of the Criminal Procedure Code, which came to be dismissed by the learned trial Court by order dated 06.09.2008. Hence, the petitioner has preferred present application before this Court for anticipatory bail under Section 438 of the Criminal Procedure Code.

4. Mr.Yogesh

Lakhani, learned Senior Advocate appearing for the petitioner has submitted that the complaint has been filed at the behest of one ? Jairajsinh Jadeja, Ex.M.L.A. of the said constituency with mala-fide intention as the petitioner contested the election of Legislative Assembly against said Jairajsinh Jadeja who belongs to party in power in the State and the applicant won the said election and said Jairajsinh Jadeja lost by 500 votes and having lost, with a view to take revenge and with mala-fide intention, he submitted application on 22.01.2008 making allegations against the petitioner and others. It is further submitted that infact the petitioner was Sarpanch at the relevant time and being head of village as Sarpanch, he was made Chairman of the Committee and entire scheme was to be operated by the Government Officials and after the work was completed and project was over and after inspection by the Government Officials, and after the bills were prepared and sanctioned, the petitioner as Chairman of the said Committee signed the cheque and made the payment. It is further submitted that as such at the relevant time accounts were audited by the Government in the year 2005 itself. It is submitted that the petitioner is not likely to run away and/or temper or hamper with evidence. It is further submitted that false case is filed against the petitioner. It is submitted that the petitioner will fully cooperate the Investigating Officer during the course of the investigation. Therefore, it is requested to grant anticipatory bail to the petitioner by directing the Investigating Officer to release the petitioner on bail in case of arrest in connection with complaint being C.R.No.I-96 of 2008 registered with Kotada Sangani Police Station. No other submissions have been made.

5. The

application is opposed by Mr.R.C.Kodekar, learned Additional Public Prosecutor appearing for the State. It is submitted that whether the complaint is filed with mala-fide intention is not required to be considered at this stage. It is submitted that as observed by the learned trial Court the petitioner has not cooperated and parted record available with him. It is further submitted that what is required to be considered is nature of allegations and gravity of offences and whether prima-facie case is made out for further investigation or not?. It is further submitted that as such the complaint is not filed by the persons against whom allegations of mala-fide are made, but is filed by the responsible officers of the State Government i.e. Executive Engineer, Road and Buildings, Rajkot and the complaint is not only against the petitioner but against other co-accused also inclusive of Government Officials and considering seriousness and gravity of the offence and allegations of misappropriation of huge amount to the extent of Rs.47,30,009/- , thorough investigation is required and may be custodial interrogation required. It is submitted that if in such grave offence, if anticipatory bail is granted, in that case, even it will affect consideration of regular bail also. It is also further submitted that it is not that straightway complaint has been filed. It is submitted that after the Committee was constituted by the State Government, it initially inquired into allegations and only after satisfying with respect to correctness of the allegations and having found that false measurements was taken and noted in the measurements book and even sufficient proper materials were not used and the bills were got sanctioned and payments were made by illegal means adopting corrupt practice, thereafter only complaint is filed. Therefore, it is requested to dismiss the present Application.

6. Having

heard the learned Advocates appearing on behalf of the respective parties and having gone through the impugned complaint as well as affidavit filed by the Investigating Officer and the report and the order passed by the learned trial Court rejecting the application of the petitioner for anticipatory bail under Section 438 of the Criminal Procedure Code, it appears that there are very serious allegations against the petitioner and other co-accused inclusive of Government Officials for the offences punishable under Sections 405, 406, 409, 420, 465, 467, 468, 471, 477(1), 120B & 114 of the Indian Penal Code read with Sections 7, 12, 13(c) and 13(d) of the Prevention of Corruption Act. On the basis of the application and representation made with respect to large scale malpractice and irregularities in the project for supplying drinking water to the village people, Committee was constituted by the State Government and after having made preliminary inquiry and having found substance with respect to the allegations of preparing false bills after making false measurements, making false entries in the measurements books, bills have been got sanctioned and even proper sufficient materials have also not been used, the complaint is filed. Under the circumstances and considering the seriousness and nature of allegations and graveness of offence, according to this Court this is not a fit case where discretion for granting anticipatory bail in favour of the petitioner is required to be exercised. Considering above and considering the fact that the complaint is not lodged only against the petitioner but against other co-accused also inclusive of Government Officials, it cannot be said prima-facie at this stage that the complaint is filed with mala-fide intention at the behest of Ex.M.L.A. and against whom the petitioner contested. At this stage decision of the Hon'ble Supreme Court in the case of Prakash Singh Badal v/s. State of Punjab reported in (2007) 1 SCC 1 is required to be referred to. As held by the Hon'ble Supreme Court in the said decision, merely because a political opponent-complainant had lodged the complaint that itself is not sufficient for the Court to interfere. When the allegation is made, investigation is undertaken to find out whether there is any substance in the allegation. The ultimate test, therefore, is whether the allegations have any substance. Therefore, in the present case, investigation / inquiry was initiated on the basis of representation made by the Ex.M.L.A., which according to the petitioner was his opponent, said mala fides cannot be presumed.

7. Allegations

of mala-fide are not required to be considered at this stage. What is required to be considered is whether there is some substance in the complaint making out case for further investigation and nature of allegations in the complaint. It is required to be noted at this stage that even in the affidavit submitted by the Investigating agency before the learned trial Court it is specifically averred that record is supposed to be with the petitioner being Chairman of Watson Committee and same was not provided by the petitioner and same is not recovered and same is yet to be recovered, for which thorough investigation is required.

8. Considering

above and nature of allegations i.e. preparing false bills to the extent of Rs.47,300,09/- and getting the said bills sanctioned by preparing false measurements and making false entries in the measurements books by illegal means and corrupt practice and the complaint has been filed after preliminary inquiry conducted by the State Government, this is not a fit case for granting anticipatory bail in favour of the petitioner. Hence, present application of the petitioner for granting him anticipatory bail deserves to be dismissed and accordingly dismissed.

[M.R.Shah,J.]

satish

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