Gujarat High Court
Dayabhai Nanjibhai Kacha vs State Of Gujarat on 10 April, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
R/CR.MA/2780/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 2780 of
2017
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DAYABHAI NANJIBHAI KACHA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR MRUGEN K PUROHIT, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN, LD. PUBLIC PROSECUTOR WITH MR LB DABHI, APP for
the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 10/04/2017
ORAL ORDER
Rule, returnable forthwith. Learned Additional Public Prosecutor Mr.L.B. Dabhi waives service of Rule. The application is taken up for final consideration today itself.
2. It is in connection with First Information Report bearing Crime Register No.I-121 of 2016 registered on 22nd November, 2016 with Jasdan Police Station, Rajkot Rural, that the applicant-accused has presented this learned Additional Public Prosecutor under Section 438 of the Code of Criminal Procedure, 1973. The offences which are alleged in the F.I.R. in question are those punishable under Sections 406, 409, 420, 467, 468, 471, 474, 477A and 114 of the Indian Penal Code, 1860.
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3. Applicant herein is the President of accused No.3 Asmita Samvardhan Trust. The First Information Report named 13 accused, of whom 12 were the Non- Governmental Organisations (NGOs)-the Trusts. Accused No.13 was the third party inspection agency-the Regional Director of All India Institute of Local Self-Government. The allegations in the First Information Report pertain to irregularities in the construction of toilets which was undertaken under a Scheme of the State Government called Swachh Bharat Abhiyan for the purpose of families who did not have the toilets in their houses. According to the F.I.R. under the Scheme of the State Government, contract was given by Jasdan Nagarpalika to the named NGOs to erect the toilets under the contract at the different places in Jasdan Nagarpalika area. The entire F.I.R. was based on an inquiry report dated 16th October, 2016 of the Deputy Collector. The inquiry was undertaken upon the complaints received about commission of irregularities.
3.1 It was stated in the F.I.R. that as per the record of the Jasdan Nagarpalika, during the year 2013-14 and 2014-15, payment was made to 3151 beneficiaries in respect of constructions of toilets, out of which 768 toilets were fully constructed whereas 335 were found to be incomplete. The F.I.R. noted the contents of the inquiry report of the Deputy Collector as to the number of beneficiaries not found, the beneficiaries who did not receive the assistance Page 2 of 16 HC-NIC Page 2 of 16 Created On Sun Aug 13 07:15:09 IST 2017 R/CR.MA/2780/2017 ORDER or though the amount was paid, the construction of toilet was not carried out and also such beneficiaries whose names were repeated or duplicated. For each toilet, assistance of Rs.08,000/- was to be given.
3.2 In order to comprehend the role of the accused persons and other involved, the State Government Scheme under which the construction of the toilets were undertaken, deserves to be looked into with relevance. The project was entrusted to the bodies of local self-government-in the instant case it was Jasdan Municipality-as per Resolution dated 12th April, 2012 in which the Non-Governmental Organisations were involved. The Resolutions dated 24th August, 2013 read with 21st October, 2013 which are on record and the contents of which are not in dispute, reflects the procedure.
3.3 Under the Scheme operated according to the above referred policy Resolutions, the procedure and steps were envisaged were inter alia that it was for the Municipality concerned to select an NGO to be the agency. The NGOs were to be those identified by Gujarat Municipal Finance Board or may be one selected by the Municipality concerned. As per the procedure in the Resolution dated 24th October, 2008 and 12th April, 2012, the Chief Officer and the other municipal servants after undertaking inspection were required to prepare list of beneficiaries. They would also obtain in writing the consent letters from the beneficiaries which details were required to be submitted to the District Urban Development Agency who would finalise Page 3 of 16 HC-NIC Page 3 of 16 Created On Sun Aug 13 07:15:09 IST 2017 R/CR.MA/2780/2017 ORDER and finally approve the same. After the NGO concerned completing the construction under the contract, the Chief Officer would certify about the construction. Upon this report is submitted in respect of construction, 90% of the bill amount would be disbursed to the NGO concerned. The next step was to undertake third party inspection and upon their certification and approval, 10% amount would be disbursed. The All India Institute of Local Self Government was the third party inspecting organisation. A double-check mechanism was evolve by carrying out inspection by the Municipal Officers and by the third party inspecting agency.
3.4 The further facts attendant to this case are inter alia that by work order dated 31st December, 2013 the NGO was assigned work of constructing 150 toilets as per the list of beneficiaries given by the Nagarpalika. After completion of 92 toilets out of 150 toilets, the NGO raised a bill dated 24th May, 2014. The bill was cleared after being duly processed as per the Scheme. The payment was made by the Nagarpalika in the month of August, 2014, that is 90% amount being Rs.07,200/- for each toilet. Total Rs.06,62,400/- was paid towards 92 units. It was stated that after completion of the construction of these 92 toilets, the NGO was orally assigned the work of construction of 117 other toilets. For such 117 toilets, no formal work order in writing had ever been given to the NGO. On completion of construction of 117 toilets, after following procedure, the payments was made by the Nagarpalika in the month of March, 2015 towards 117 Page 4 of 16 HC-NIC Page 4 of 16 Created On Sun Aug 13 07:15:09 IST 2017 R/CR.MA/2780/2017 ORDER toilets of Rs.08,42,400/- was paid. Therefore, the present NGO has in all constructed 209 toilets in Jasdan Taluka under the Nirmal Gujarat Scheme. It is stated that this applicant has received 90% payments only for such 209 toilets that have been fully constructed. The F.I.R. in question was filed on 22nd November, 2016 alleging the offences under Sections 406, 409, 420, 467, 468, 471, 474, 477A read with Section 114 of the Indian Penal Code, 1860.
4. Heard learned advocate Mr.Aditya Parikh for learned advocate Mr.Mrugen Purohit, who submitted his case with commendable clarity and he highlighted the issue with succinctness. Also heard learned Public Prosecutor Mr.Mitesh Amin assisted by learned Additional Public Prosecutor.
4.1 It was submitted by learned advocate for the applicant that in the entire scheme under which the policy for construction of toilets for the needy persons was implemented, the main role was of the municipal officers who had identified the houses in the beneficiaries for the purpose of construction and even before making the payment, the list was prepared after inspection which was verified and approved by the third party inspecting agency which was a government agency. It was submitted that the alleged irregularity was investigated at the level of Collector who filed report pursuant to which the F.I.R. was filed. It was submitted that in the facts of the case, anticipatory bail deserves to be granted.
4.2 In support of his submissions, learned
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advocate for the applicant relied on decision of the Supreme Court in Bhadresh Bipinbhai Seth v State of Gujarat [(2016) 1 SCC 152] for its paragraphs 17, 21, 22 and 25. It was submitted on the basis of the decision in Siddhram Stalingappa Mehtre v State of Maharashtra [(2011) 1 SCC 694] that arrest of a person should be as a last resort and it was submitted that the applicants are the office bearers of the NGOs and they enjoy reputation in the society and that they would co-operate with the investigation. Arguing against the coercive methods in the investigation, they relied on the decision of the Supreme Court in Joginder Kumar v State of Uttar Pradesh [(1994) 4 SCC 260] as well as the decision of this Court in Jayrajsinh Temubha Jadeja v State of Gujarat [2001 (1) GLH 465].
4.3 Learned Public Prosecutor submitted that the act of the accused person was a scheming conduct. He submitted that there was a large scale irregularity in which even the officers of the Municipality, if found guilty, would have also to face the consequences. He sought to demonstrate that after notice was given to the NGO concerned-the accused, they made a show of returning the amount which is of no avail. He submitted that the names were mismatching in the learned Additional Public Prosecutor forms so also the photograph of the beneficiary. It was submitted that details in relation to the beneficiaries, the actual constructed number of units and in what circumstances the payment was made excess even after certification, were all the matters requiring investigation.
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4.4 Learned Public Prosecutor submitted that
investigation was required to be carried out on all fronts and he emphasised the need to have effective investigation by custodial interrogation. In this regard he relied on the principles flowing from the decisions of the Supreme Court in Pokar Ram v State of Rajasthan [(1995) 2 SCC 597]. In the next he relied on decision of State REP. By the C.B.I. V Anil Sharma [(1997) 7 SCC 187]. He thereafter relied on the decision of the Supreme Court in Shri Gurbaksh Singh Sibbia v State of Punjab [(1980) 2 SCC 565], in particular paragraph 32 thereof to submit that in ultimate analysis it is the facts of each case which have to be sifted and assessed by the Court. He also relied on the principles stated in Jayprakash Sing v State of Bihar [(2012) 4 SCC 379] in respect of grant of the anticipatory bail.
5. The claim for anticipatory bail is founded on the bedrock of personal liberty. The journey from decisions in Sibbia (supra) to Siddhram (supra) emphasises the invariability for protecting personal liberty of a person facing charges for offences and underlines the valuability of such liberty. In Sibbia (supra) the Supreme Court in paragraph 26 observed that there was a great deal of substance that in denial of bail there is a deprivation of personal liberty, which aspect should weigh high and it was observed that even in imposition of conditions for granting of bail, the impurities of personal liberty should not be overlooked. In Siddhram (supra), the Page 7 of 16 HC-NIC Page 7 of 16 Created On Sun Aug 13 07:15:09 IST 2017 R/CR.MA/2780/2017 ORDER aspect of protection of right to personal liberty was elaborated to be highlighted further. In this, however, the need for investigational interests cannot be overlooked.
5.1 In Sibbia (supra) Apex Court stated in paragraphs 16 and 17 and 17 that it is not proper to hold that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, a discretion under Section 438 of the Code should not be exercised. It was observed that it is not possible for the court to assess the blatantness of corruption at the stage of anticipatory bail. It further observed that it was not possible to hold that the anticipatory bail cannot be granted unless it is alleged and shown that the acquisitions were mala fide.
5.2 What the Sibbia (supra) emphasised which is a cardinal proposition weighing for grant or otherwise of anticipatory bail, is that the court should strike the balance between the individual's right to personal freedom and the investigational rights of the police. In Siddhram (supra) this principle was furthered and observed that the principle of striking balance between upholding of personal liberty and guarding the requirements of needs of investigation must be balanced.
5.3 The Court considered the law laid down in Sibbia (supra) and the principles highlighted therein, as well as the decision in Siddhram (supra) whic Page 8 of 16 HC-NIC Page 8 of 16 Created On Sun Aug 13 07:15:09 IST 2017 R/CR.MA/2780/2017 ORDER hfollowed the decision in Sibbia (supra) to lay down the broad parameters for grant of bail. Those principles were also considered in light of the facts of the present case. The decisions relied on by both the sides were also considered.
5.4 Liberty is precious to an individual so as the societal interest and the interests of the investigation. Therefore while considering the plea for anticipatory bail, the cardinal consideration is to securing an equilibrium between the personal liberty and investigational need. While the grant or otherwise of anticipatory bail would depend upon each case, the facts would have to be assessed and applied so as to maintaining the balance between the aforesaid two vital considerations. It is trite that denial of anticipatory bail is not to operate as punishment. Nor it could be denied by way of punishment.
6. Keeping in view the above principles and parameters, the Court considered the totality of allegations and the facts relating to the alleged offences as they would operate and apply qua the present applicant-accused. The allegations and the attendant aspects of the case considered with the investigational material, show the following aspects clearly emerging.
(a) In the Scheme of State Government for
construction of toilets to the needy
beneficiaries at their residences, the NGOs
were the agencies identified to whom the
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contract was given by the Municipality
concerned-the Jasdan Municipality. The
beneficiaries were identified by Municipality after inspection of the places by the officers of the Municipality following procedure under the policy resolutions. The primary task rested with the officials of the Municipality and after necessary spade-work, the NGO concerned was entrusted the work of construction;
(b) The completion of construction was verified by the Chief Officer and other municipal servants who would, as per the mechanism envisaged, satisfy themselves about the construction of the toilet unit for the beneficiary, collect details, took the photographic image and send all these details to the higher authority, namely the Collector or the District Urban Development Agency;
(c) Thus all the details of the units to be constructed and actually constructed would be collected by the municipal servants to be the basis for clearance of bill to be paid to the NGO concerned. The task of verifying the approving the construction work as per the details gathered was to be performed and okayed by the municipal authority;
(d) The payment was made on the basis of such inspection and examination. Subsequently the NGOs were told by notice that units were not constructed as required;
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(e) The third party inspecting agency also carried
out its assignment of inspection and prepared report. On that basis, the remainder 10% payment was made;
(f) Though the applicant-NGO was an agency to whom the contract was given, in the monitoring of the entire execution of the work, including identification and inspection of the beneficiaries and the units constructed, a clear and decisive role was played by the Municipality, the third party inspecting agency and its officers;
(g) There is no gainsaying, nor the prosecution denied, that the municipal officers would also constitute a separate class against whom the offending role has to be necessarily attributed. They were the ultimate supervisory agency.
6.1 The entire scenario coming out as above an aspect could not be lost site of that the accused NGOs were the agencies to whom the contract was given. It was the municipal authorities and the officers who identified the beneficiaries, fixed number of units to be constructed for them and after construction was over, certified about the construction having been completed. Not only that, the third party investigating agency played final role to approve about the completion of the work to make the final part of the payment. In the process of this Page 11 of 16 HC-NIC Page 11 of 16 Created On Sun Aug 13 07:15:09 IST 2017 R/CR.MA/2780/2017 ORDER certification, a direct role of the trustee or office bearer of the NGO was not possible to be exacted. The further aspect of the matter is that when the F.I.R. was filed, the same was on the basis of the report of the Deputy Collector dated 16th October, 2016. The Deputy Collector was asked to inquire and give report pursuant to the complaints of irregularities in the construction of toilet units were received. In other words, the report of the Deputy Collector was in the nature of investigative report which contain the gist of the details regarding allegations.
6.2 In the above view, the imperativeness for custodial interrogation could not be spelt out. Custodial investigation is not a substitute for investigation. When the investigation could be carried out by other modes, custody and arrest by the police for the said purpose has to be kept at a bay. The valuability of personal liberty has to be recognised in such circumstances and the forced arrest of the accused persons cannot be permitted. In this case, it could also be said that the entire investigation, even if the same may proceed further, would be mainly rest on the documentary material. The prosecution could not establish nor could show any aspects for which custodial investigation may be necessary at the cost of personal liberty of the accused.
6.3 In the facts and circumstances obtained and for the reasons recorded above, personal liberty of the applicant-accused deserves to be accorded primacy over his forced arrest. The investigational needs Page 12 of 16 HC-NIC Page 12 of 16 Created On Sun Aug 13 07:15:09 IST 2017 R/CR.MA/2780/2017 ORDER could be balanced by imposing appropriate conditions to be observed by the applicant-accused including the condition of keeping the right of the police open to ask for remand of the applicant-accused, if required. Looking to the totality of the facts, a more stringent conditions for furnishing higher amount of the personal bond and solvent surety would serve the ends of justice.
7. As a result of above facts and aspects, present application is allowed and it is directed that in the event of the applicant's arrest in connection with the F.I.R. bearing Crime Register No.I-121 of 2016 registered on 22nd November, 2016 with Jasdan Police Station, Rajkot Rural, he shall be released forthwith on condition of his execution a personal bond of Rs.50,000/- (Rupees Fifty Thousand Only) and shall further furnish a solvent surety of equivalent amount.
7.1 The anticipatory bail granted by this Court shall be further governed and regulated by the following conditions.
[i] The applicant shall cooperate with the investigation. He will make himself available for interrogation and for all investigative purposes whenever required;
[ii] The applicant shall not obstruct the process of investigation in any manner. He shall not directly or indirectly induce threat or extend promise to any witness so as to dissuade and prevent such witness Page 13 of 16 HC-NIC Page 13 of 16 Created On Sun Aug 13 07:15:09 IST 2017 R/CR.MA/2780/2017 ORDER from disclosing such facts as may be required, to the Court or Police Officer;
[iii] The applicant shall at the time of execution of bond, furnish full address of his residence and stay to the Investigating Officer as well as to the Court concerned. He shall not change the residence without prior intimation to the Court concerned during the pendency of the prosecution in the criminal case;
[iv] The applicant shall not travel beyond the territory of the State of Gujarat without prior permission of the Court concerned;
[v] The applicant shall surrender passport, if any he is holding, before the Court concerned immediately;
[vi] The applicant shall appear before the concerned Police Station on 19th April, 2017 between 11.00 am and 02.00 pm. [vii] It shall remain open to the Investigating Officer to seek and file application for remand of the applicant, if in his discretion he considers the asking for remand of the applicant to be just and proper for the purpose of investigational needs. If such application for remand is made by the Investigating Officer, the learned Magistrate concern would consider the same on merits without being influenced by the anticipatory bail granted.
8. It is clarified that despite this order, the investigating agency is not precluded from applying Page 14 of 16 HC-NIC Page 14 of 16 Created On Sun Aug 13 07:15:09 IST 2017 R/CR.MA/2780/2017 ORDER before the competent Magistrate for police remand of the applicant. It is further provided that the applicant shall remain present before the Magistrate concerned on the first day of such application, if made, and on all such subsequent occasions as may be directed by the learned Magistrate in such proceedings. This would be sufficient to treat the accused as in judicial custody for the purpose of entertaining the application for remand by the prosecution.
8.1 The liberty available to the prosecution to seek remand shall be without prejudice to the rights of the accused to contend against or to seek stay against the remand. It is further clarified that the applicant even if remanded to the police custody, after completion of the remand period; shall be set at liberty immediately, subject to other conditions of this anticipatory bail order, to be complied with.
8.2 It is clarified that the observations made in this order are for the purpose of granting pre- arrest protection only. It is further clarified that the trial court shall not be influenced by any of the observations made in this order and the same shall be treated for the purpose of dealing with the present application only.
9. The present application is allowed in the aforesaid terms. Rule is made absolute.
Direct service is permitted.
(N.V.ANJARIA, J.)
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Anup
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