Punjab-Haryana High Court
Subhash Tyagi vs State Of Haryana on 18 December, 2008
Author: K. C. Puri
Bench: K. C. Puri
Criminal Misc.No.10949-M of 2008.
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In the High Court of Punjab and Haryana at Chandigarh.
Criminal Misc.No.10949-M of 2008.
Date of decision:18.12.2008.
Subhash Tyagi
...Petitioner.
Versus
State of Haryana.
...Respondent.
...
Coram: Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr. R. S. Cheema, Senior Advocate with Mr. Pawan
Girdhar, Advocate for the petitioner.
Mr. Neeraj Bhutani, AAG Haryana.
Mr. Gauttam Dutt, Advocate.
...
K. C. Puri, J.
Judgment.
Subhash Tyagi has applied for grant of anticipatory bail in case FIR No.9 dated 9.1.2008, under Section 406 IPC, Police Station Badshahpur, District Gurgaon.
As per allegations of the prosecution, the petitioner was Criminal Misc.No.10949-M of 2008.
-2-Sarpanch of village Badshahpur, Tehsil and District Gurgaon. He had received an amount of Rs.59,37,093/- as compensation on account of acquisition of panchayat land. He was required to deposit the said amount in the joint account of Panchayat and the District Development and Panchayat Officer and the development work was to be undertaken with the amount of interest accrued thereon. However, he, in violation of the Rules, instead of depositing the amount in joint account, has deposited the same in his own account and had withdrawn the same. As pre report of the Executive Engineer, the petitioner neither got the estimates prepared nor got the assessment done nor got filled the measurement books as per Haryana Panchayati Raj Finance, Budget, Account, Audit and Taxation Works Rules. Before spending any amount on development work, the panchayat has to get prepared estimate and the measurement book has to be got filled in and then assessment has to be got done.
It has been further alleged that the petitioner had withdrawn an amount of Rs.59,37,093/- and has not spent the same on any development work of the panchayat.
Then investigation of the case was conducted and as per report of the Executive Engineer dated 14.4.2008, the assessment Criminal Misc.No.10949-M of 2008.
-3-of work got done by the petitioner works out to be Rs.43,12,178/-.
During the pendency of bail application before the Additional Sessions Judge, the petitioner was granted full opportunity to explain the amount spent by him on the development work. As per resolution No.150 dated 20.3.2006, drainage from Darbari Road till Canal Badshahpur and from Chinar Hotel to Canal Badshahpur was got dug up with a J.C.B Machine for an amount of Rs.2,00,000/- but on the spot, no such drainage was found to have been got dug up. It has been further observed, during the course of investigation, that the petitioner forged various bills to account for the amount. Five hand-pumps have been shown to have been purchased for an amount of Rs.1,04,000/- but at the spot, only two hand-pumps have been installed. White washing bills in respect of white washing of Government Secondary School for Girls, Dispensary and Government Primary School have been prepared without getting the same white washed. The bills regarding installation of steel pipes in Kabir Mohalla have also been fabricated. So, in this manner, the embezzlement, as per prosecution allegations, comes to more than Rs.16 lacs.
The learned counsel for the petitioner has submitted that Criminal Misc.No.10949-M of 2008.
-4-the petitioner belongs to BJP and due to political rivalry, he has been falsely implicated. The custodial interrogation of the petitioner is not required. It is only an irregularity and the petitioner was not aware of the fact that the amount has to be deposited in the joint account and cannot be withdrawn without getting the estimates prepared and measurement work done. The petitioner has joined the investigation, during the pendency of his application for bail before the Additional Sessions Judge. So, the petitioner is entitled to the concession of anticipatory bail, more-so, when the learned Additional Sessions Judge has not observed that custodial interrogation is required.
The learned counsel for the petitioner has referred to the objects and reasons for incorporating Section 438 Cr.P.C and has drawn my pointed attention towards para No.39.9 of 41st report of Law Commission which reads as under:-
"39.9 Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their Criminal Misc.No.10949-M of 2008.-5-
rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail."
It has further been contended that the petitioner is not likely to abscond or misuse the liberty. So, there was no justification to submit to custody and remain in prison for sometime.
It has been further contended that the amount had been withdrawn after the resolution was passed by the panchayat members. The other panchayat members have not been arrayed as accused, so much so, Panchayat Secretary has not been arrayed as an accused.
The learned counsel for the petitioner has, therefore, submitted that the petitioner is entitled to the concession of Criminal Misc.No.10949-M of 2008.
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I have carefully considered the said submissions and have gone through the record of the case.
Even a single penny belonging to the Government has to be accounted for and can be spent only after obtaining proper sanction from the competent authority. It is not disputed that an amount of Rs.59,37,093/- was received by the petitioner on account of acquisition of panchayat land and the some amount is stated to have been spent by the petitioner. The petitioner has himself stated that he remained Sarpanch for five years from 1994 to 1999 and was holding other positions like Panch and a Member of Block Samiti. He also remained Vice President of Kisan Morcha of the BJP. It cannot be said that a person, with so much experience, would not have the knowledge that any amount of the panchayat cannot be kept in the personal account. During the investigation, it was revealed that various bills have been forged and the amount is stated to have been spent on various projects which have actually not been implemented. So, in these circumstances, the extra-ordinary relief of anticipatory bail cannot be allowed to the petitioner.
So far as reliance of the counsel for the petitioner on the Criminal Misc.No.10949-M of 2008.
-7-report of Law Commission is concerned, the same does not help the petitioner. The petitioner was given full opportunity by the Additional Sessions Judge to explain his position and to account for the amount in question. It is not merely an irregularity, as according to the allegations of the prosecution, huge amount has been usurped by the petitioner for his personal gains.
So far as submission of counsel for the petitioner to the effect that the other Panches and Panchayat Secretary have not been arrayed as accused and on that count, the petitioner is entitled to concession of bail is concerned, the same is without any substance. Criminal cases are registered on the culpability of each accused. The amount was kept by the petitioner in his personal account and then he spent some amount on development works and embezzled the remaining amount.
Therefore, in the light of above discussion, it is a fit case to dis-allow the concession of extra-ordinary relief of anticipatory bail to the petitioner. Consequently, this petition stands dismissed.
December 18,2008. ( K. C. Puri ) Jaggi Judge