Though there are two matters before this Court, the
material discussed and the allegations show that in 31 villages
similar irregularities were found. Unless the technical man like
Sectional Officer and Executive Engineer join hands with the
members of the Committee, there is no possibility of
misappropriation of the amount. Whenever there is
misappropriation of the amount and the Government is duped,
that amount needs to be recovered. That amount needs to be
treated as stolen property under section 410 of I.P.C. It cannot be
said in the cases like present one that only on the basis of
record, investigation can be done. The actual role played and the
other persons who had joined hands in creating false record can
be ascertained only after custodial interrogation. Amount of
thousands of crores of this State has been misappropriated and
this could not have happened if the officers like present
respondents had acted honestly. They are certainly benefited
and that money needs to be traced. Such persons are not at all
entitled to any lenient view. All these circumstances need to be
considered by the Criminal Court while using the discretionary
power of granting anticipatory bail. Thus, the relevant material is
not at all considered and the learned Additional Sessions Judge
has committed grave error in granting relief on merits to both
the respondents, Executive Engineer and Sectional Engineer.
This Court has no hesitation to hold that the orders made in their
favour need to be cancelled. Unless there is custodial
interrogation, the investigation will not be effective and it will
not be possible for the investigating agency to complete the
investigation. There is possibility of revealing more material and
more instances of fraud only after the custodial interrogation.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRI.APPLN/4526/2013
RAMESH MANIK PATIL
V/S
THE STATE OF MAHARASHTRA AND ANOTHER
CORAM : T.V. NALAWADE, J.
DATED : 29th January, 2015.
1) All the applications are filed under section 439 (2) of
Criminal Procedure Code ('Cr.P.C.' for short) for cancellation of
anticipatory bail granted by the learned Additional Sessions
Judge, Jalgaon in C.R. Nos. 71/13 and 73/13 registered in
Dharangaon Police Station, Dharangaon for the offences
punishable under sections 409, 420, 467, 468, 477-A, r/w. 34 etc.
of Indian Penal Code ('I.P.C.' for short) and sections 13 (1) (d) r/w.
13 (2) of Prevention of Corruption Act, 1988 ('PC Act' for short).
2) Learned counsel for respondent/accused Shri.
Gangakhedkar from Criminal Application Nos. 4527 and 4529 of
2013 argued the matters. The learned APP also argued and he
supported the applicant by submitting that the chargesheet
could not be filed due to absence of custody of the applicants
and the investigation could not be completed. Learned counsel
Mrs. Rashmi Gaur for respondent/accused in Criminal Application
Nos. 4526 and 4528 of 2013 submitted that her client has taken
away the brief from her and so, she does not want to argue. In
the first session, this Court had expressed that this Court will not
be granting more time and as the time was given to the same
advocate in the past, due to which the matter was adjourned
from time to time and it came before this Court after one year,
no further time will be given and no excuse will be heard. Upon
that, learned counsel Mrs. Rashmi Gaur had submitted that she
would argue in the second sessions and so, the learned counsel
for the applicant was heard. In the second session, learned
counsel Mrs. Rashmi Gaur submitted that she has specific
instructions from her client not to argue the matters and she
avoided to argue the matters. This Court has expressed that this
Court will not allow learned counsel to withdraw the appearance
in view of the peculiar facts of the case and the fact that it is
she, who had sought time in those matters and due to her
seeking of time, the matters could not be disposed of for the
period of one year.
3) Present matters, atleast, the first two matters are the
glaring examples as to how fraud is played on Court. These
cases are also instances of the tactics played in the Court to
protract the decision of the matters. These cases are also
instances of the effect of the orders of anticipatory bail which
virtually stopped the investigation of the matters. First time, the
first two matters came before this Court on 6.9.2013. The
matters again came before this Court on 10.12.2013 and
11.12.2013.
4) On 11.12.2013 this Court had expressed that in view
of the peculiar facts and circumstances of the case on
13.12.2013 the matters will be heard and disposed of. In view of
the peculiar facts of the case, inquiry was made with the learned
counsels, who had represented the respondent of the first two
proceedings (respondent Chandrakant Wagh) and they were
requested to make statements with regard to the manner in
which the previous proceedings were disposed of. This Court is
mentioning those statements made by the counsels. It appears
that steps were then taken like filing of the proceedings like
quashing of the F.I.R. itself by this respondent. In view of the
procedure of this Court, the proceeding filed for quashing of the
F.I.R. lies before the Division bench and the present matters were
also tagged with those matters. On 13.11.2014 these matters
came to be removed from the board of the Division Bench as the
writ petitions filed for quashing of the F.I.R. were withdrawn on
that date. Thus, for the period of around nine months, the
matters were kept before Division Bench by playing tactics like
filing writ petitions for quashing of the F.I.R. and after the period
of nine months, those proceedings were withdrawn and thus, the
matters again came before the regular Court. The aforesaid
circumstances show as to how the tactics are being played in the
Court, even in the High Court for protracting the decisions of the
matters. Such tactics were played as the concerned apprehends
that he may not get favourable orders as the facts and
circumstances of these proceedings are very peculiar in nature.
This Court has no hesitation to observe that only due to the
conduct of the respondent from the first two proceedings and
the tactics played by him, the matters could not be disposed of
for the period of more than around 15 months. Even today an
attempt was made to play such tactics by making aforesaid
submissions. This conduct can be definitely taken in to
consideration at the time of decision of the present proceedings
as the proceedings are filed due to the peculiar facts and
circumstances due to which the relief was granted to this
accused.
5) This Court has no hesitation to observe that fraud is
played on this system by the respondent, accused Shri. Wagh.
This respondent had filed applications for relief of anticipatory
bail in this Court bearing Criminal Application Nos. 2908 and
2909 of 2013. After hearing both the sides, this Court
(undersigned) had expressed that the Court was not inclined to
grant relief of anticipatory bail. The learned counsels
representing the respondents, accused had then on instruction
submitted that they wanted to withdraw the applications and the
applications were disposed of as withdrawn. One advocate Shri.
Sakolkar was representing the present respondent, Shri. Wagh,
the Executive Engineer of Zilla Parishad and one advocate Shri.
Joydeep Chatterji was representing the Committee members of
the scheme. In the present proceedings, the learned counsels
were requested to make statement as to whether they had
advanced arguments before this Court and this Court had
expressed that this Court was not inclined to grant relief. Both
the counsels were before this Court on 18.12.2013 in the present
proceedings and the statements came to be recorded
accordingly. It is the practice atleast at this bench of making
submissions of withdrawal, when the Court expresses that the
Court is not inclined to grant the relief of bail or anticipatory bail.
Such withdrawal submissions are made to avoid the
observations of this Court with regard to the material, merits of
the case. Thus, even when the matters are shown to be disposed
of due to withdrawal, the matters are ordinarily treated as
rejected on merits. In view of these circumstances, the accused
were expected to surrender before police. Instead of
surrendering before police, it appears that present respondent,
the Executive Engineer, filed applications for anticipatory bail
within two days i.e. on 19.7.2013 in Sessions Court. The record
shows that in Sessions Court also on merits the applications filed
for anticipatory bail were already rejected in the month of May
2013. It appears that the applications bearing Nos. 867 and 868
of 2013 in which relief is granted, came before the learned
Additional Sessions Judge Mr. D.P. Surana of Jalgaon. The
previous matters were rejected on merits by the learned
Additional Sessions Judge Shri. V.S. Dixit in May 2013.
Submissions were made in subsequent matters, that after the
rejection of the previous anticipatory bail applications, the
circumstances had changed. It was contended in the
applications filed for anticipatory bail that the matter in the High
Court was withdrawn only due to circumstance that Special
Judge had granted anticipatory bail to another accused. It was
not informed to the Court that the application was withdrawn in
High Court after advancing arguments when High Court had
expressed that the Court was not inclined to grant relief. Thus,
fraud was played on the Court for obtaining relief and even when
the respondent, accused had failed to get relief on merits, the
learned Additional Sessions Judge was virtually deceived and the
order was obtained. The orders of the learned Additional
Sessions Judge Mr. D.P. Surana and the reasoning show that
there was total non application of mind and the material which
was available was not at all considered. It can be said that even
on merits, the order of the learned Additional Sessions Judge,
Jalgaon cannot sustain in law. When the criminal Court like
Additional Sessions Court grants relief without considering the
relevant material, this Court has ample power to cancel that
order by using the provisions of section 439 (2) of Cr.P.C. [Relied
on 2001 SUPREME COURT 2023 (1) [Pooran Vs. Rambilas
and Another]. This Court has no hesitation to observe that only
on the ground of fraud played on the system and aforesaid
circumstances also, the order made by the Additional Sessions
Judge can be cancelled.
6) So far as the merits of the matters are concerned, it
can be said that there are serious allegations against the present
respondents/accused, Executive Engineer and Sectional
Engineer. In Maharashtra, by using peculiar modus operandi, the
officers and other connected with Irrigation Department, other
departments implementing schemes for drinking water have
misappropriated huge amount of Government money which runs
into thousands of crores of rupees. Even when the work was not
executed, it was shown to be executed by joining hands with the
Engineers, supervising the work, by preparing false record of
bills and vouchers. Another modus operandi was used like
preparing false revised estimates showing revision of rates and
by getting sanction to additional amount for project when the
work was actually completed in period given in contract. Both
the modus operandi were used in the present matters.
7) The submissions made show that present
respondent, Executive Engineer had control over the schemes,
which were being implemented by Zilla Parishad, Jalgaon. He
was the main technical hand of the Zilla Parishad and the other
technical hands like Deputy Engineer and Sectional Engineer
were working under him. Sectional Engineer being the field man
is expected to do inspection of work, take measurement, look
after measurement book and then to see that the bills are
prepared as per the measurement. His superior officers like
Deputy Engineer and Executive Engineer are expected to do the
checking of this record and they are also expected to approve
the revision of rates when there is delay caused in executing the
work and the rates are required to be revised. Thus, the revised
estimate is expected to be approved by Executive Engineer. The
submissions made show that when the inquiry was made in to
irregularities as per the instruction given by the Revenue
Commissioner of this region, it was noticed that in the schemes
of atleast 31 villages, which were under the control of present
Executive Engineer, irregularities were found and by using
aforesaid modus operandi, the amount was misappropriated.
8) The submissions made show that writ petitions were
filed in this Court by the Committees of 28 villages and the
grievance was made that no opportunity of being heard was
given to them by the authority. In notices, these Committees
were directed to deposit the amount which was misappropriated.
This Court (Division Bench) gave directions to the authority to
give opportunity to the Committee members to explain the
things and then take action. The submissions made show that
the writ petitions came to be disposed of on 1.8.2013, but after
that no progress was made, nobody has deposited the amount ,
but, the action is not taken by the authority for recovery of the
misappropriated amount. These circumstances need to be
considered against the present respondents, Executive Engineer
and Sectional Engineer also as they were involved in those
projects also. There are allegations that persons involved are
influential and due to that, no action is taken against the
Committee members and others. This circumstance also shows
as to how the Government money is grabbed and the persons
concerned escape even from criminal liability. It needs to be
observed that action can be taken against present respondents
also in those 28 matters, if they are found to be involved in
those matters. In the present two matters and one more matter,
opportunity was given to the Committee members by authority
and the amount involved is huge. The directions were given by
the authority to give reports to the police and accordingly,
reports are given. In the present matters, this Court will be
considering only the material in respect of the C.R. Nos. 71 and
73 of 2013.
9) Both the F.I.Rs. bearing C.R. Nos. 71 and 73 of 2013
are given by Assistant Executive Engineer of Water Supply
Department of Zilla Parishad, Jalgaon. The F.I.Rs. came to be
given after making detailed inquiry of the irregularities and
aforesaid modus operandi. Inquiry was done by Deputy
Commissioner of Development, Nashik Region on the basis of
directions given by Revenue Commissioner. The entire material
which can be found in the F.I.R. was considered by the Inquiry
Officer. On the basis of this report dated 29.12.2013, a direction
was given by the Divisional Commissioner on 12.3.2013 to give
reports, register crimes and also to recover the amount
misappropriated. These directions were given to the Chief Officer
of Zilla Parishad. As per the directions given by the Chief Officer,
Zilla Parishad, F.I.Rs. came to be given.
10) For implementation of the schemes at village level,
there are Committees of elected members. The technical wing of
Zilla Parishad, respondents prepare estimates, supervise work
and approve it.
11) In C.R. No. 71/2013, there are allegations that
misappropriation of amount of Rs. 28.35 lakh has been done in
respect of scheme of supply of drinking water to works of village
Waghlud, Tahsil Dharangaon. In the F.I.R., it is mentioned that
similar irregularities were found in 31 projects. It is contended
that following modus operandi was used for misappropriation of
the Government money.
(i) When as per the Government Resolutions,
the Committee was expected to make payment only by
cheque and demand draft, all the payments were made
by cash.
(ii) When there were directions to issue tenders
for purchasing material and even for giving work to the
contractors, no such tenders were floated. In this
village, one Shri. Mangal Ganpat Patil was shown as
contractor, but no such contractor is in existence. By
preparing false vouchers, the amount of more than Rs.
14.94 lakh was shown to be given to Mangal Ganpat
Patil. The work included the construction of overhead
water tank. When the overhead water tank was already
available in the village and it was constructed in
another scheme, this water tank was shown in the
present scheme and the payment was shown to be
made. This payment was shown to be made by cash
when even as per the directions given by the Income
Tax Department, the payment of more than Rs.
20,000/- need to be made by cheque or demand draft.
(iii) Some material was shown to be purchased
from Nilkamal Traders (Pimpri Khurd) by producing the
vouchers of this shop. One bill was of 24.6.2003. The
Village Panchayat Pimpri had made construction of
commercial complex and first time, the tender was
published on 9.12.2004 for giving shops from this
complex but as per the record of the present matter,
Nilkamal Traders was shown to be functioning in this
complex on 24.6.2003. One Shri.Subhash Champalal
Patil, the Secretary of the Committee of this Village was
shown as owner of the shop, when the shop was not in
existence and the payment of more than Rs. 5.39 lakh
was shown to be made to this shop. This shop had no
record of sales tax, VAT etc. and this payment was also
shown to be made by cash.
(iv) Some amount was sanctioned for
construction of public toilet. The amount was disbursed
by the authority in the moth of August 2010. When no
construction of public toilet was done, the amount of
Rs. 1.43 lakh was withdrawn and it was
misappropriated. The second installment of Rs. 1.44
lakh was also taken and it was shown to be paid to one
Shri. Rohidas Aawasu Koli. When the amount of more
than Rs. 2.87 lakh was shown to be paid before
20.7.2012, when the visit was paid by the Inquiry
Officer, there was no public toilet block in existence.
Thus, by using this modus operandi, the amount of Rs.
2.87 lakh was misappropriated.
(v) It is noticed that there are two
measurement books. There is inconsistency in the two
books with regard to everything. The inconsistency is
with regard to the measurement and also with regard
to rates. One technical consultant Shri. Yogesh Sharad
Kolgekar was expected to prepare the measurement
book, but it can be said that the technical man of Zilla
Parishad like Sectional Officer was expected to keep
control over the things as he was the field man for Zilla
Parishad. Even when some work was executed in the
year 2003 itself, it was shown that the work was not
executed and delay was caused and revised estimates
were prepared. For that, second measurement book
was prepared and on that basis, the revised estimate
was submitted before the Executive Engineer, present
respondent and he approved the revised estimate. On
that basis, the sanction of the Government was
obtained for additional amount and this amount was
misappropriated. The work which was already executed
and the purchases which were made within prescribed
period are mentioned in revised estimates and they
include the purchase of pumping machine.
(vi) The work of erection of barbed wire fencing
was not actually done, but the work was shown to be
executed and this amount was misappropriated. This
amount was more than Rs. 1.30 lakh.
(vii) When the work of underground bunding
was already executed, this work was shown in the
second measurement book, revised estimate was
prepared and as against the amount of initial
assessment of Rs. 71,000/-, the amount of Rs. 3.66
lakh was got sanctioned and the excess amount was
misappropriated.
(viii) The procedure was flouted and the matters
were directly taken to the Executive Engineer by giving
bye-pass to other technical hands, who are between
the Committee and the Executive Engineer. That was
done to obtain the sanction in respect of revised
estimates.
12) The aforesaid material is not at all considered by the
learned Additional Sessions Judge. The peculiar modus operandi
is also not considered and without application of mind, the
learned Additional Sessions Judge has granted relief of
anticipatory bail to these respondents in C.R. No. 71/2013.
13) C.R. No. 73/2013 is in respect of the work which was
to be executed in the village Sonwad Khurd, Tahsil Dharangaon.
It was also water supply scheme. There are allegations which are
of similar nature and there are further allegations that some
extra expenditure was shown and the amount was
misappropriated. This work included the taking of bore well,
fixing of pump and machinery, construction of pump house and
laying of pipeline etc. This work also included barbed wire
fencing and some other ancillary work. In this work also,
respondent Chandrakant Wagh, Executive Engineer was involved
and one Yogesh Kolgekar was technical consultant. From the
same shop viz. Nilkamal Traders, material was shown to be
purchased and vouchers of this shop were collected by the
Committee. Some amount was shown to be paid by cheque, but
most of the amount was shown to be paid by cash. In this
matter, also it was noticed that revised estimate was prepared
for misappropriation of the amount by using similar modus
operandi and in this crime, there is allegation that the amount of
Rs. 13.75 lakh was misappropriated. This material is also not at
all considered by the learned Additional Sessions Judge while
granting relief of anticipatory bail.
14) In the reply filed by the present respondent,
Executive Engineer, he has contended that he approached the
learned Additional Sessions Judge as the learned Additional
Sessions Judge had granted relief to Sudhir Dahake, Sectional
Engineer and he had withdrawn the proceeding filed in this
Court. This Court has already observed that this Court was not
inclined to grant relief and as per the procedure at this station,
the application was disposed of as rejected and only the
observations were avoided by the accused by withdrawing the
proceeding. He has made allegations against his colleagues like
Assistant Engineer and he has contended that the inquiry was
not properly made and the report is not correct. He has
contended that only departmental inquiry can be held and no
action including criminal action can be taken. He has contended
that the amount was properly utilized and no offence has been
committed even by the Committee. He has contended that the
revised estimate was approved by the Gram Sabha and so, it
cannot be disputed. He has contended that it is the duty of the
Deputy Engineer to visit the site and to examine the work and
Executive Engineer cannot be held responsible, if there is any
irregularity. He has contended that he has no other criminal
record and so, he is entitled to protection.
15) The learned counsel for other respondent Shri.
Sudhir Dahake submitted that there are no specific allegations
against Dahake and so, there is no reason to interfere in the
orders made in favour of Dahake. On one hand, it is submitted
for Executive Engineer that Dahake the man on field got relief
and so, he is entitled to relief and on the other hand, Dahake is
saying that he had no role to play. In F.I.R. itself name of Dahake
is mentioned. He was Sectional Engineer, the field man and so,
measurement books could not have been prepared without his
approval. Even if the submission that revised estimates were
prepared behind his back and without taking recommendation
from him is considered, there are allegations of aforesaid nature.
Even when the work was not executed, the work was shown to
be executed and so, the Sectional Engineer cannot say that he is
not responsible. He is a man on the field and only after actual
measurement of the work, he is supposed to give green signal of
making payment of the bills. Unless there is such technical
approval, the bills are not passed. This circumstance shows that
Dahake has also hand in aforesaid misappropriation.
16) Though there are two matters before this Court, the
material discussed and the allegations show that in 31 villages
similar irregularities were found. Unless the technical man like
Sectional Officer and Executive Engineer join hands with the
members of the Committee, there is no possibility of
misappropriation of the amount. Whenever there is
misappropriation of the amount and the Government is duped,
that amount needs to be recovered. That amount needs to be
treated as stolen property under section 410 of I.P.C. It cannot be
said in the cases like present one that only on the basis of
record, investigation can be done. The actual role played and the
other persons who had joined hands in creating false record can
be ascertained only after custodial interrogation. Amount of
thousands of crores of this State has been misappropriated and
this could not have happened if the officers like present
respondents had acted honestly. They are certainly benefited
and that money needs to be traced. Such persons are not at all
entitled to any lenient view. All these circumstances need to be
considered by the Criminal Court while using the discretionary
power of granting anticipatory bail. Thus, the relevant material is
not at all considered and the learned Additional Sessions Judge
has committed grave error in granting relief on merits to both
the respondents, Executive Engineer and Sectional Engineer.
This Court has no hesitation to hold that the orders made in their
favour need to be cancelled. Unless there is custodial
interrogation, the investigation will not be effective and it will
not be possible for the investigating agency to complete the
investigation. There is possibility of revealing more material and
more instances of fraud only after the custodial interrogation.
17) Morality has gone to the lowest level. The corruption
has increased to alarming extent and it is on the rise. Many
officers who are supposed to protect public money are joining
hands with outsiders to mint money. Due to the corruption, the
welfare schemes of Government are not implemented. Even
after spending thousands of crores of rupees by the Government
on such schemes people in drought hit areas are not getting
even drinking water. For most of the time of the year their
villages have a look of desert. Due to absence of water, these
areas have remained underdeveloped. Money provided for such
schemes is being continuously misappropriated as they are sure
that with the same money they can save themselves. Most of
them do not remain behind bars even for a single day and stolen
property is never traced and seized. This money is making such
such officers rich and many more officers are getting involved in
such activities. The honest officers are finding it difficult to work.
Courts cannot ignore this condition of the society.
18) If Investigating Officer is of the opinion that there are
grounds for investigation and for the same custodial
interrogation is necessary, due weight to his opinion needs to be
given by the Court. This is because the police have the statutory
power to investigate cognizable offences. When there is such
statutory power, it is generally desirable that method and
manner of investigation are left entirely to the officer incharge of
investigation.
19) By the amendment of 2009 to section 41 of Cr.P.C., in
case of cognizable offence punishable with imprisonment of a
term less than seven years and which may extend to seven
years, some conditions are required to be fulfilled by the
Investigating Officer, but that does not mean that the power is
reduced in any way. To see that arrest is not made as a matter of
course in such cases, the limitations/conditions are given in
section 41 of the Code. Once the police officer is satisfied about
it and puts it in writing, he can exercise the power of arrest. So,
when in proceeding filed before Court for relief of anticipatory
bail, when the Investigating Officer/ the prosecutor submits that
custodial interrogation is necessary, the Court should give due
weight to such submission. For more serious offences, no
justification in writing is required to be given by Investigating
Officer at the time of arrest. The provisions of sections 57, 156
and 167, 169, 170 and 173 of Cr.P.C. are also relevant in this
regard as they speak about the said statutory power.
20) In the result, the applications are allowed. The orders
made by the learned Additional Sessions Judge granting relief of
anticipatory bail to the respondents/accused viz. Chandrakant
s/o. Parsharam Wagh and Sudhir s/o. Devidas Dahake are set
aside. The relief granted in their favour is cancelled. Both these
persons are to be arrested and taken in custody forthwith.
Investigating agency will be at liberty to approach the concerned
J.M.F.C. for obtaining remand after the arrest of these persons.
[ T.V. NALAWADE, J. ]
Print Page
material discussed and the allegations show that in 31 villages
similar irregularities were found. Unless the technical man like
Sectional Officer and Executive Engineer join hands with the
members of the Committee, there is no possibility of
misappropriation of the amount. Whenever there is
misappropriation of the amount and the Government is duped,
that amount needs to be recovered. That amount needs to be
treated as stolen property under section 410 of I.P.C. It cannot be
said in the cases like present one that only on the basis of
record, investigation can be done. The actual role played and the
other persons who had joined hands in creating false record can
be ascertained only after custodial interrogation. Amount of
thousands of crores of this State has been misappropriated and
this could not have happened if the officers like present
respondents had acted honestly. They are certainly benefited
and that money needs to be traced. Such persons are not at all
entitled to any lenient view. All these circumstances need to be
considered by the Criminal Court while using the discretionary
power of granting anticipatory bail. Thus, the relevant material is
not at all considered and the learned Additional Sessions Judge
has committed grave error in granting relief on merits to both
the respondents, Executive Engineer and Sectional Engineer.
This Court has no hesitation to hold that the orders made in their
favour need to be cancelled. Unless there is custodial
interrogation, the investigation will not be effective and it will
not be possible for the investigating agency to complete the
investigation. There is possibility of revealing more material and
more instances of fraud only after the custodial interrogation.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CRI.APPLN/4526/2013
RAMESH MANIK PATIL
V/S
THE STATE OF MAHARASHTRA AND ANOTHER
CORAM : T.V. NALAWADE, J.
DATED : 29th January, 2015.
1) All the applications are filed under section 439 (2) of
Criminal Procedure Code ('Cr.P.C.' for short) for cancellation of
anticipatory bail granted by the learned Additional Sessions
Judge, Jalgaon in C.R. Nos. 71/13 and 73/13 registered in
Dharangaon Police Station, Dharangaon for the offences
punishable under sections 409, 420, 467, 468, 477-A, r/w. 34 etc.
of Indian Penal Code ('I.P.C.' for short) and sections 13 (1) (d) r/w.
13 (2) of Prevention of Corruption Act, 1988 ('PC Act' for short).
2) Learned counsel for respondent/accused Shri.
Gangakhedkar from Criminal Application Nos. 4527 and 4529 of
2013 argued the matters. The learned APP also argued and he
supported the applicant by submitting that the chargesheet
could not be filed due to absence of custody of the applicants
and the investigation could not be completed. Learned counsel
Mrs. Rashmi Gaur for respondent/accused in Criminal Application
Nos. 4526 and 4528 of 2013 submitted that her client has taken
away the brief from her and so, she does not want to argue. In
the first session, this Court had expressed that this Court will not
be granting more time and as the time was given to the same
advocate in the past, due to which the matter was adjourned
from time to time and it came before this Court after one year,
no further time will be given and no excuse will be heard. Upon
that, learned counsel Mrs. Rashmi Gaur had submitted that she
would argue in the second sessions and so, the learned counsel
for the applicant was heard. In the second session, learned
counsel Mrs. Rashmi Gaur submitted that she has specific
instructions from her client not to argue the matters and she
avoided to argue the matters. This Court has expressed that this
Court will not allow learned counsel to withdraw the appearance
in view of the peculiar facts of the case and the fact that it is
she, who had sought time in those matters and due to her
seeking of time, the matters could not be disposed of for the
period of one year.
3) Present matters, atleast, the first two matters are the
glaring examples as to how fraud is played on Court. These
cases are also instances of the tactics played in the Court to
protract the decision of the matters. These cases are also
instances of the effect of the orders of anticipatory bail which
virtually stopped the investigation of the matters. First time, the
first two matters came before this Court on 6.9.2013. The
matters again came before this Court on 10.12.2013 and
11.12.2013.
4) On 11.12.2013 this Court had expressed that in view
of the peculiar facts and circumstances of the case on
13.12.2013 the matters will be heard and disposed of. In view of
the peculiar facts of the case, inquiry was made with the learned
counsels, who had represented the respondent of the first two
proceedings (respondent Chandrakant Wagh) and they were
requested to make statements with regard to the manner in
which the previous proceedings were disposed of. This Court is
mentioning those statements made by the counsels. It appears
that steps were then taken like filing of the proceedings like
quashing of the F.I.R. itself by this respondent. In view of the
procedure of this Court, the proceeding filed for quashing of the
F.I.R. lies before the Division bench and the present matters were
also tagged with those matters. On 13.11.2014 these matters
came to be removed from the board of the Division Bench as the
writ petitions filed for quashing of the F.I.R. were withdrawn on
that date. Thus, for the period of around nine months, the
matters were kept before Division Bench by playing tactics like
filing writ petitions for quashing of the F.I.R. and after the period
of nine months, those proceedings were withdrawn and thus, the
matters again came before the regular Court. The aforesaid
circumstances show as to how the tactics are being played in the
Court, even in the High Court for protracting the decisions of the
matters. Such tactics were played as the concerned apprehends
that he may not get favourable orders as the facts and
circumstances of these proceedings are very peculiar in nature.
This Court has no hesitation to observe that only due to the
conduct of the respondent from the first two proceedings and
the tactics played by him, the matters could not be disposed of
for the period of more than around 15 months. Even today an
attempt was made to play such tactics by making aforesaid
submissions. This conduct can be definitely taken in to
consideration at the time of decision of the present proceedings
as the proceedings are filed due to the peculiar facts and
circumstances due to which the relief was granted to this
accused.
5) This Court has no hesitation to observe that fraud is
played on this system by the respondent, accused Shri. Wagh.
This respondent had filed applications for relief of anticipatory
bail in this Court bearing Criminal Application Nos. 2908 and
2909 of 2013. After hearing both the sides, this Court
(undersigned) had expressed that the Court was not inclined to
grant relief of anticipatory bail. The learned counsels
representing the respondents, accused had then on instruction
submitted that they wanted to withdraw the applications and the
applications were disposed of as withdrawn. One advocate Shri.
Sakolkar was representing the present respondent, Shri. Wagh,
the Executive Engineer of Zilla Parishad and one advocate Shri.
Joydeep Chatterji was representing the Committee members of
the scheme. In the present proceedings, the learned counsels
were requested to make statement as to whether they had
advanced arguments before this Court and this Court had
expressed that this Court was not inclined to grant relief. Both
the counsels were before this Court on 18.12.2013 in the present
proceedings and the statements came to be recorded
accordingly. It is the practice atleast at this bench of making
submissions of withdrawal, when the Court expresses that the
Court is not inclined to grant the relief of bail or anticipatory bail.
Such withdrawal submissions are made to avoid the
observations of this Court with regard to the material, merits of
the case. Thus, even when the matters are shown to be disposed
of due to withdrawal, the matters are ordinarily treated as
rejected on merits. In view of these circumstances, the accused
were expected to surrender before police. Instead of
surrendering before police, it appears that present respondent,
the Executive Engineer, filed applications for anticipatory bail
within two days i.e. on 19.7.2013 in Sessions Court. The record
shows that in Sessions Court also on merits the applications filed
for anticipatory bail were already rejected in the month of May
2013. It appears that the applications bearing Nos. 867 and 868
of 2013 in which relief is granted, came before the learned
Additional Sessions Judge Mr. D.P. Surana of Jalgaon. The
previous matters were rejected on merits by the learned
Additional Sessions Judge Shri. V.S. Dixit in May 2013.
Submissions were made in subsequent matters, that after the
rejection of the previous anticipatory bail applications, the
circumstances had changed. It was contended in the
applications filed for anticipatory bail that the matter in the High
Court was withdrawn only due to circumstance that Special
Judge had granted anticipatory bail to another accused. It was
not informed to the Court that the application was withdrawn in
High Court after advancing arguments when High Court had
expressed that the Court was not inclined to grant relief. Thus,
fraud was played on the Court for obtaining relief and even when
the respondent, accused had failed to get relief on merits, the
learned Additional Sessions Judge was virtually deceived and the
order was obtained. The orders of the learned Additional
Sessions Judge Mr. D.P. Surana and the reasoning show that
there was total non application of mind and the material which
was available was not at all considered. It can be said that even
on merits, the order of the learned Additional Sessions Judge,
Jalgaon cannot sustain in law. When the criminal Court like
Additional Sessions Court grants relief without considering the
relevant material, this Court has ample power to cancel that
order by using the provisions of section 439 (2) of Cr.P.C. [Relied
on 2001 SUPREME COURT 2023 (1) [Pooran Vs. Rambilas
and Another]. This Court has no hesitation to observe that only
on the ground of fraud played on the system and aforesaid
circumstances also, the order made by the Additional Sessions
Judge can be cancelled.
6) So far as the merits of the matters are concerned, it
can be said that there are serious allegations against the present
respondents/accused, Executive Engineer and Sectional
Engineer. In Maharashtra, by using peculiar modus operandi, the
officers and other connected with Irrigation Department, other
departments implementing schemes for drinking water have
misappropriated huge amount of Government money which runs
into thousands of crores of rupees. Even when the work was not
executed, it was shown to be executed by joining hands with the
Engineers, supervising the work, by preparing false record of
bills and vouchers. Another modus operandi was used like
preparing false revised estimates showing revision of rates and
by getting sanction to additional amount for project when the
work was actually completed in period given in contract. Both
the modus operandi were used in the present matters.
7) The submissions made show that present
respondent, Executive Engineer had control over the schemes,
which were being implemented by Zilla Parishad, Jalgaon. He
was the main technical hand of the Zilla Parishad and the other
technical hands like Deputy Engineer and Sectional Engineer
were working under him. Sectional Engineer being the field man
is expected to do inspection of work, take measurement, look
after measurement book and then to see that the bills are
prepared as per the measurement. His superior officers like
Deputy Engineer and Executive Engineer are expected to do the
checking of this record and they are also expected to approve
the revision of rates when there is delay caused in executing the
work and the rates are required to be revised. Thus, the revised
estimate is expected to be approved by Executive Engineer. The
submissions made show that when the inquiry was made in to
irregularities as per the instruction given by the Revenue
Commissioner of this region, it was noticed that in the schemes
of atleast 31 villages, which were under the control of present
Executive Engineer, irregularities were found and by using
aforesaid modus operandi, the amount was misappropriated.
8) The submissions made show that writ petitions were
filed in this Court by the Committees of 28 villages and the
grievance was made that no opportunity of being heard was
given to them by the authority. In notices, these Committees
were directed to deposit the amount which was misappropriated.
This Court (Division Bench) gave directions to the authority to
give opportunity to the Committee members to explain the
things and then take action. The submissions made show that
the writ petitions came to be disposed of on 1.8.2013, but after
that no progress was made, nobody has deposited the amount ,
but, the action is not taken by the authority for recovery of the
misappropriated amount. These circumstances need to be
considered against the present respondents, Executive Engineer
and Sectional Engineer also as they were involved in those
projects also. There are allegations that persons involved are
influential and due to that, no action is taken against the
Committee members and others. This circumstance also shows
as to how the Government money is grabbed and the persons
concerned escape even from criminal liability. It needs to be
observed that action can be taken against present respondents
also in those 28 matters, if they are found to be involved in
those matters. In the present two matters and one more matter,
opportunity was given to the Committee members by authority
and the amount involved is huge. The directions were given by
the authority to give reports to the police and accordingly,
reports are given. In the present matters, this Court will be
considering only the material in respect of the C.R. Nos. 71 and
73 of 2013.
9) Both the F.I.Rs. bearing C.R. Nos. 71 and 73 of 2013
are given by Assistant Executive Engineer of Water Supply
Department of Zilla Parishad, Jalgaon. The F.I.Rs. came to be
given after making detailed inquiry of the irregularities and
aforesaid modus operandi. Inquiry was done by Deputy
Commissioner of Development, Nashik Region on the basis of
directions given by Revenue Commissioner. The entire material
which can be found in the F.I.R. was considered by the Inquiry
Officer. On the basis of this report dated 29.12.2013, a direction
was given by the Divisional Commissioner on 12.3.2013 to give
reports, register crimes and also to recover the amount
misappropriated. These directions were given to the Chief Officer
of Zilla Parishad. As per the directions given by the Chief Officer,
Zilla Parishad, F.I.Rs. came to be given.
10) For implementation of the schemes at village level,
there are Committees of elected members. The technical wing of
Zilla Parishad, respondents prepare estimates, supervise work
and approve it.
11) In C.R. No. 71/2013, there are allegations that
misappropriation of amount of Rs. 28.35 lakh has been done in
respect of scheme of supply of drinking water to works of village
Waghlud, Tahsil Dharangaon. In the F.I.R., it is mentioned that
similar irregularities were found in 31 projects. It is contended
that following modus operandi was used for misappropriation of
the Government money.
(i) When as per the Government Resolutions,
the Committee was expected to make payment only by
cheque and demand draft, all the payments were made
by cash.
(ii) When there were directions to issue tenders
for purchasing material and even for giving work to the
contractors, no such tenders were floated. In this
village, one Shri. Mangal Ganpat Patil was shown as
contractor, but no such contractor is in existence. By
preparing false vouchers, the amount of more than Rs.
14.94 lakh was shown to be given to Mangal Ganpat
Patil. The work included the construction of overhead
water tank. When the overhead water tank was already
available in the village and it was constructed in
another scheme, this water tank was shown in the
present scheme and the payment was shown to be
made. This payment was shown to be made by cash
when even as per the directions given by the Income
Tax Department, the payment of more than Rs.
20,000/- need to be made by cheque or demand draft.
(iii) Some material was shown to be purchased
from Nilkamal Traders (Pimpri Khurd) by producing the
vouchers of this shop. One bill was of 24.6.2003. The
Village Panchayat Pimpri had made construction of
commercial complex and first time, the tender was
published on 9.12.2004 for giving shops from this
complex but as per the record of the present matter,
Nilkamal Traders was shown to be functioning in this
complex on 24.6.2003. One Shri.Subhash Champalal
Patil, the Secretary of the Committee of this Village was
shown as owner of the shop, when the shop was not in
existence and the payment of more than Rs. 5.39 lakh
was shown to be made to this shop. This shop had no
record of sales tax, VAT etc. and this payment was also
shown to be made by cash.
(iv) Some amount was sanctioned for
construction of public toilet. The amount was disbursed
by the authority in the moth of August 2010. When no
construction of public toilet was done, the amount of
Rs. 1.43 lakh was withdrawn and it was
misappropriated. The second installment of Rs. 1.44
lakh was also taken and it was shown to be paid to one
Shri. Rohidas Aawasu Koli. When the amount of more
than Rs. 2.87 lakh was shown to be paid before
20.7.2012, when the visit was paid by the Inquiry
Officer, there was no public toilet block in existence.
Thus, by using this modus operandi, the amount of Rs.
2.87 lakh was misappropriated.
(v) It is noticed that there are two
measurement books. There is inconsistency in the two
books with regard to everything. The inconsistency is
with regard to the measurement and also with regard
to rates. One technical consultant Shri. Yogesh Sharad
Kolgekar was expected to prepare the measurement
book, but it can be said that the technical man of Zilla
Parishad like Sectional Officer was expected to keep
control over the things as he was the field man for Zilla
Parishad. Even when some work was executed in the
year 2003 itself, it was shown that the work was not
executed and delay was caused and revised estimates
were prepared. For that, second measurement book
was prepared and on that basis, the revised estimate
was submitted before the Executive Engineer, present
respondent and he approved the revised estimate. On
that basis, the sanction of the Government was
obtained for additional amount and this amount was
misappropriated. The work which was already executed
and the purchases which were made within prescribed
period are mentioned in revised estimates and they
include the purchase of pumping machine.
(vi) The work of erection of barbed wire fencing
was not actually done, but the work was shown to be
executed and this amount was misappropriated. This
amount was more than Rs. 1.30 lakh.
(vii) When the work of underground bunding
was already executed, this work was shown in the
second measurement book, revised estimate was
prepared and as against the amount of initial
assessment of Rs. 71,000/-, the amount of Rs. 3.66
lakh was got sanctioned and the excess amount was
misappropriated.
(viii) The procedure was flouted and the matters
were directly taken to the Executive Engineer by giving
bye-pass to other technical hands, who are between
the Committee and the Executive Engineer. That was
done to obtain the sanction in respect of revised
estimates.
12) The aforesaid material is not at all considered by the
learned Additional Sessions Judge. The peculiar modus operandi
is also not considered and without application of mind, the
learned Additional Sessions Judge has granted relief of
anticipatory bail to these respondents in C.R. No. 71/2013.
13) C.R. No. 73/2013 is in respect of the work which was
to be executed in the village Sonwad Khurd, Tahsil Dharangaon.
It was also water supply scheme. There are allegations which are
of similar nature and there are further allegations that some
extra expenditure was shown and the amount was
misappropriated. This work included the taking of bore well,
fixing of pump and machinery, construction of pump house and
laying of pipeline etc. This work also included barbed wire
fencing and some other ancillary work. In this work also,
respondent Chandrakant Wagh, Executive Engineer was involved
and one Yogesh Kolgekar was technical consultant. From the
same shop viz. Nilkamal Traders, material was shown to be
purchased and vouchers of this shop were collected by the
Committee. Some amount was shown to be paid by cheque, but
most of the amount was shown to be paid by cash. In this
matter, also it was noticed that revised estimate was prepared
for misappropriation of the amount by using similar modus
operandi and in this crime, there is allegation that the amount of
Rs. 13.75 lakh was misappropriated. This material is also not at
all considered by the learned Additional Sessions Judge while
granting relief of anticipatory bail.
14) In the reply filed by the present respondent,
Executive Engineer, he has contended that he approached the
learned Additional Sessions Judge as the learned Additional
Sessions Judge had granted relief to Sudhir Dahake, Sectional
Engineer and he had withdrawn the proceeding filed in this
Court. This Court has already observed that this Court was not
inclined to grant relief and as per the procedure at this station,
the application was disposed of as rejected and only the
observations were avoided by the accused by withdrawing the
proceeding. He has made allegations against his colleagues like
Assistant Engineer and he has contended that the inquiry was
not properly made and the report is not correct. He has
contended that only departmental inquiry can be held and no
action including criminal action can be taken. He has contended
that the amount was properly utilized and no offence has been
committed even by the Committee. He has contended that the
revised estimate was approved by the Gram Sabha and so, it
cannot be disputed. He has contended that it is the duty of the
Deputy Engineer to visit the site and to examine the work and
Executive Engineer cannot be held responsible, if there is any
irregularity. He has contended that he has no other criminal
record and so, he is entitled to protection.
15) The learned counsel for other respondent Shri.
Sudhir Dahake submitted that there are no specific allegations
against Dahake and so, there is no reason to interfere in the
orders made in favour of Dahake. On one hand, it is submitted
for Executive Engineer that Dahake the man on field got relief
and so, he is entitled to relief and on the other hand, Dahake is
saying that he had no role to play. In F.I.R. itself name of Dahake
is mentioned. He was Sectional Engineer, the field man and so,
measurement books could not have been prepared without his
approval. Even if the submission that revised estimates were
prepared behind his back and without taking recommendation
from him is considered, there are allegations of aforesaid nature.
Even when the work was not executed, the work was shown to
be executed and so, the Sectional Engineer cannot say that he is
not responsible. He is a man on the field and only after actual
measurement of the work, he is supposed to give green signal of
making payment of the bills. Unless there is such technical
approval, the bills are not passed. This circumstance shows that
Dahake has also hand in aforesaid misappropriation.
16) Though there are two matters before this Court, the
material discussed and the allegations show that in 31 villages
similar irregularities were found. Unless the technical man like
Sectional Officer and Executive Engineer join hands with the
members of the Committee, there is no possibility of
misappropriation of the amount. Whenever there is
misappropriation of the amount and the Government is duped,
that amount needs to be recovered. That amount needs to be
treated as stolen property under section 410 of I.P.C. It cannot be
said in the cases like present one that only on the basis of
record, investigation can be done. The actual role played and the
other persons who had joined hands in creating false record can
be ascertained only after custodial interrogation. Amount of
thousands of crores of this State has been misappropriated and
this could not have happened if the officers like present
respondents had acted honestly. They are certainly benefited
and that money needs to be traced. Such persons are not at all
entitled to any lenient view. All these circumstances need to be
considered by the Criminal Court while using the discretionary
power of granting anticipatory bail. Thus, the relevant material is
not at all considered and the learned Additional Sessions Judge
has committed grave error in granting relief on merits to both
the respondents, Executive Engineer and Sectional Engineer.
This Court has no hesitation to hold that the orders made in their
favour need to be cancelled. Unless there is custodial
interrogation, the investigation will not be effective and it will
not be possible for the investigating agency to complete the
investigation. There is possibility of revealing more material and
more instances of fraud only after the custodial interrogation.
17) Morality has gone to the lowest level. The corruption
has increased to alarming extent and it is on the rise. Many
officers who are supposed to protect public money are joining
hands with outsiders to mint money. Due to the corruption, the
welfare schemes of Government are not implemented. Even
after spending thousands of crores of rupees by the Government
on such schemes people in drought hit areas are not getting
even drinking water. For most of the time of the year their
villages have a look of desert. Due to absence of water, these
areas have remained underdeveloped. Money provided for such
schemes is being continuously misappropriated as they are sure
that with the same money they can save themselves. Most of
them do not remain behind bars even for a single day and stolen
property is never traced and seized. This money is making such
such officers rich and many more officers are getting involved in
such activities. The honest officers are finding it difficult to work.
Courts cannot ignore this condition of the society.
18) If Investigating Officer is of the opinion that there are
grounds for investigation and for the same custodial
interrogation is necessary, due weight to his opinion needs to be
given by the Court. This is because the police have the statutory
power to investigate cognizable offences. When there is such
statutory power, it is generally desirable that method and
manner of investigation are left entirely to the officer incharge of
investigation.
19) By the amendment of 2009 to section 41 of Cr.P.C., in
case of cognizable offence punishable with imprisonment of a
term less than seven years and which may extend to seven
years, some conditions are required to be fulfilled by the
Investigating Officer, but that does not mean that the power is
reduced in any way. To see that arrest is not made as a matter of
course in such cases, the limitations/conditions are given in
section 41 of the Code. Once the police officer is satisfied about
it and puts it in writing, he can exercise the power of arrest. So,
when in proceeding filed before Court for relief of anticipatory
bail, when the Investigating Officer/ the prosecutor submits that
custodial interrogation is necessary, the Court should give due
weight to such submission. For more serious offences, no
justification in writing is required to be given by Investigating
Officer at the time of arrest. The provisions of sections 57, 156
and 167, 169, 170 and 173 of Cr.P.C. are also relevant in this
regard as they speak about the said statutory power.
20) In the result, the applications are allowed. The orders
made by the learned Additional Sessions Judge granting relief of
anticipatory bail to the respondents/accused viz. Chandrakant
s/o. Parsharam Wagh and Sudhir s/o. Devidas Dahake are set
aside. The relief granted in their favour is cancelled. Both these
persons are to be arrested and taken in custody forthwith.
Investigating agency will be at liberty to approach the concerned
J.M.F.C. for obtaining remand after the arrest of these persons.
[ T.V. NALAWADE, J. ]
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