Gujarat High Court
The State Of Gujarat vs Manoj Devshankar Pandya on 24 June, 2019
Equivalent citations: AIRONLINE 2019 GUJ 120
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/12034/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12034 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 12037 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 11939 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 12141 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 12109 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 12110 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 12111 of 2018
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THE STATE OF GUJARAT
Versus
MANOJ DEVSHANKAR PANDYA
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Appearance:
MR HS SONI, ADDITIONAL PUBLIC PROSECUTOR(2) for the Applicant(s)
No. 1
IN CR.MA NOS. 12034/2018, 12037/2019, 12109/2018, 12111/2018 AND
12110/2018 : MR NANDISH H THACKAR(7008) with MR D V
KANSARA(7498) for the Respondent(s) No. 1
IN CR.MA NO. 11939/2018 : NO APPEARANCE SHOWN
IN CR.MA NO. 12141/2018 : MR HRIDAY BUCH for the Applicant(s) No.1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 24/06/2019
COMMON ORAL ORDER
1. All these applications are filed under Section 439(2) and 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as 'the Code') with a prayer to cancel the anticipatory bail granted by the Sessions Judge (Special Judge ACB, Devbhumi Dwarka) at Page 1 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019 R/CR.MA/12034/2018 ORDER Khambhalia in connection with an offence being registered as C.R. No.I-2018 with ACB Police Station, Jamkhambalia, Devbhumi Dwarka Police Station.
2. All these applications are filed by the State against the respondent/s who are the accused of the aforesaid C.R. and are the Contractors who were engaged through their organizations for the purpose of construction of 'Shauchalaya' (Toilets) under the Okha Municipality.
3. Considering the similarity in the contentions raised on behalf of the State and the identical role alleged against the respondent accused, all these applications are taken up for joint hearing and disposal with consent of the concerned Advocates. However, the facts are taken from Criminal Miscellaneous Application No.12034/2018.
4. A First Information Report being C.R. No.1/2018 came to be filed by the Police Inspector, Jamnagar, ACB Police Station, Jamnagar for the offences punishable under Sections 120(B), 406, 409, 465, 467, 471 and 114 of the Indian Penal Code and under Sections 13(1)(d)(g)) and 13(1)(2) of the Prevention of Corruption Act, 1988. The gist of allegations as stated in the First Information is that vide order of Chief Police Officer and Director, Anti-corruption Bureau, Gujarat State, Ahmedabad bearing No. Inq/D/Kh.T./Devbhumi Dwarka/1/544, dated: 01/03/2017, Devbhumi Dwarka S.B. Police Station received the application of the applicant District Municipal Page 2 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019 R/CR.MA/12034/2018 ORDER Officer, Collector and the Office of District Magistrate dated:
02/12/2016 against the Officer of Okha Nagarpalika and the Trust/organization constructing the toilets alleging corruption committed under the scheme of Nirmal Gujarat Individual Toilet Construction scheme for making open defecation free cities of the state pursuant to Mahatma Gandhi Swachchhata Mission in the year 2014-15 in the area of Okha Nagarpalika. Vide order of Chief Police Officer and Director, Anti-corruption Bureau, Gujarat State, Ahmedabad bearing No. Inq/D/Kh.T./Devbhumi Dwarka/1/1841, dated: 19/06/2017, Devbhumi Dwarka ACB Police Station received the application of the applicant Devram Vala Ghoda, residing at:
Devpara, Surajkaradi, Ta-Dwarka, dated: 16/02/17 commonly alleging against the aforesaid alleged persons. The later application was kept with the previous application and the order was passed to conduct open inquiry.
5. Pursuant to the Resolution of Government of Gujarat, Department of Urban Development and Urban Housing, Sachivalaya, Gandhinagar bearing No.NML/102008/1305/Gh, dated:
24/10/2008, this scheme was implemented for the purpose of making the open defecation free by 2010 according to the Swarnim target of the government. In this connection, like other Nagarpalikas of the District, the toilet less families were identified in Okha Nagarpalika on the basis of 2011-census, and the order was passed by the Government to pay Rs.8000/- and thereafter Rs.12000/- to construct the toilets.
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R/CR.MA/12034/2018 ORDER
6. For the implementation of toilet scheme by the Nagarpalikas, the list of total 216 voluntary organizations was prepared and the same was sent to the Nagarpalikas. As mentioned in the order of Municipal Finance Board, any of 216 voluntary organizations was to be opted or the Nagarpalikas were permitted to allot the construction work of the toilets to any of the voluntary organization of its choice.
7. Thus, on the basis of orders of the Government and Municipal Finance Board, the work orders were given by Okha Nagarpalika to total-7 voluntary organizations for the construction of total 6752 toilets from the year-2011-12 to 2014-15.
8. Though these organizations did not construct the toilets at the above mentioned details as per the rules and regulations of the government and though it has been clearly instructed in the resolutions of the Government and Municipal Finance Board that, if such organizations are not found functioning as per the norms or if any irregularity is found, the same is to be reported to the Municipal Finance Board and such organizations shall be relieved from the work with immediate effect and though the complaints of irregularities were received against these organizations, the above instructions were not followed or the ongoing construction works were not supervised by the Class-I Officer. Thus, the organizations constructing the toilets, city engineers, the then Chief Officer and the then Presidents of Okha Nagarpalika approved the fake bills and made payments thereof though the toilets were not Page 4 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019 R/CR.MA/12034/2018 ORDER constructed by the above organizations. Thus, the above organizations were paid Rs. 2,75,00,600/- and they were financially benefited. The financial loss of such amount was caused to the government and the power delegated by virtue of public servant was misused. They misappropriated the government money in connivance with one another by hatching conspiracy. The then city engineer of Okha Nagarpalika made his counter initials in the check list authenticating the details filled in the check list as true as per the rules and regulations, work orders and contracts of the Government, and forwarded the bill to the Co-ordinator of the organization for approval. And few material was provided to the beneficiaries by the organization and the signatures of the beneficiaries were obtained in the certificates that, complete toilets have been constructed by taking benefit of illiteracy of the beneficiaries though the toilets of the beneficiaries were not constructed. The signatures were obtained in such false certificates and total 1 to 42 organization wise bills alongwith the certificate and check list issued by the city engineer were submitted to the Nagarpalika for approval. Those bills were submitted before the then Chief Officer and President. Though there was clear government provision, they did not physically verify and both these officers/incumbents issued the Cheques of total amount of bills of Rs. 2,75,00,600/- in favour of respective organizations which were prepared on the basis of such false certificate and check list. The cheques were presented in the bank by the administrators of the organizations and the money were withdrawn and the misappropriation of such a large amount of Page 5 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019 R/CR.MA/12034/2018 ORDER government money was committed. It clearly appears that, they have misused their power of Public servant and thereby committed the offence.
9. The above accused persons and the officers/employees who may reveal during the investigation have hatched criminal conspiracy in connivance with one another and they have misused their power in the work allocated to them for getting the personal financial benefit. Thereby, they have committed the offence of criminal misappropriation and cheating with the government.
10.In connection with the aforesaid First Information Report, anticipatory bail applications were filed by the respondent before the Special ACB Court at Khambhalia. By the impugned order, the anticipatory bail applications were allowed while imposing certain conditions by an order dated 23.05.2018. The aforesaid order is challenged by the State praying for cancellation of anticipatory bail.
11.Learned Additional Public Prosecutor submits that the offence pertains to construction of toilets under the benevolent Scheme of the State which was to be executed through the Municipality all over the State. The Okha Municipality was also required to implement the Scheme. However, the accused persons have conspired with each other to receive financial benefits under the name of implementation of the Schemes whereas on ground, there is no proper execution of the scheme, but by creating bills and Page 6 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019 R/CR.MA/12034/2018 ORDER other documents, the payment is received as if the Scheme is duly executed. It is submitted that while scrutinizing government records, the irregularities came to light and it was found that these irregularities are widespread and therefore, intensive interrogation would be necessary for which custodial interrogation of the accused persons is a must. It is submitted that the entire offence is not restricted to role of an individual but many persons are involved which include private Contractors, Consultants and also employees of the Government and Municipality.
12.Learned Additional Public Prosecutor further submits that the impugned order is not a reasoned order which would justify the grant of anticipatory bail as the Special Court has failed to examine the role attributed by the investigation to the respondent accused and the need of the custodial interrogation of such accused.
13.It is also submitted that investigation is involving intricate facts and is complicated and only the accused persons will be able to throw light on how the entire scam was conspired by the accused persons.
14.As against this, the learned Advocates appearing for the respective respondent accused submitted that from the investigation done so far, nothing is coming on record to suggest that there is absolutely no construction of toilets and only on proper bills, documents are created and monies are received. It is submitted that at the best, the case of the prosecution can be that construction of toilets have Page 7 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019 R/CR.MA/12034/2018 ORDER taken place which are not as per the norms prescribed under the Scheme. It is submitted that the respondent accused have done their part as per the Contract and have procured the construction material and have actually carried out construction for which bills have been raised and the on-site inspection was also carried out. It is submitted that entire activity of construction of toilets was concluded long back and thereafter after a period of 3-4 years, the present First Information Report is sought to be registered. It is submitted that the entire offence is based on documents as the respondent accused have submitted all their bills and evidence of construction with the authority and have received the payments also by cheques and therefore, custodial interrogation is not necessary. It is further submitted that the respondent accused have co-operated with the investigation, their statements were also recorded and therefore, it can be said that the respondent accused have joined the investigation.
15.I have considered the rival submissions of the parties and the documents on record including the impugned order. The offence appears to be in connection with the Scheme floated by the Government for construction of toilets and such scheme was to be implemented through the local authorities like the Okha Municipality. In the present case, it appears that an First Information Report came to be registered on 25.03.2018 by the ACB Police Inspector against 19 accused named in the First Information Report which included the Officers of the Municipality, the Office bearers of the non-governmental organization, the Page 8 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019 R/CR.MA/12034/2018 ORDER Charitable organizations which were engaged in carrying out the construction of the toilets as per the Scheme on behalf of the local authority - Okha Municipality. From the First Information Report, it appears that the period during which the offence was committed was between the years 2011 to 2015, whereas the First Information Report came to be registered in the month of March 2018. From the allegations made in the First Information Report, it appears that a complaint was made by an individual in the year 2017 which was received by the ACB Police Station, which undertook the open enquiry and thereafter, the First Information Report came to be registered alleging conspiracy of the accused persons alleging that payments were made without due verification on the basis of the bills raised which were falsely created or wrongly made causing financial loss to the State.
16.From the investigation carried out and the summary submitted to this Court in a tabular form, the allegations which are supported by some evidence are as under :-
Name of the Role of the accused in the offence Accused Shri Hiteshbhai N. The accused, in the capacity of Coordinator of the Joshi, Residing at: organization, did not construct toilets in Okha Bhanvad Nagarpalika Area, which were required to be made The Coordinator as per the resolution of the government and he Ganesh Education provided only toilet building materials to several Charitable Yuva beneficiaries and he had not made toilets of several Mandal, Bhanvad beneficiaries. Despite that, he produced bills of all
toilets in Okha Nagarpalika, deposited its cheques in the bank accounts of the organization and withdrawn the said amount and thus, he has caused revenue loss to the government.
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R/CR.MA/12034/2018 ORDER Shri Manojbhai The accused, in the capacity of President of the Devshankarbhai organization, did not construct toilets in Okha Pandya Nagarpalika Area, which were required to be made The President as per the resolution of the government and he Ganesh Education provided only toilet building materials to several Charitable Yuva beneficiaries and he had not made toilets of several Mandal, Bhanvad beneficiaries. Despite that, he produced bills of all
toilets in Okha Nagarpalika, deposited its cheques in the bank accounts of the organization and withdrawn the said amount and thus, he has caused revenue loss to the government.
Shri Lakhabhai The accused, in the capacity of Coordinator of two Jogal, Residing at: different organizations, did not construct toilets in Kalyanpur Okha Nagarpalika Area, which were required to be (1) The made as per the resolution of the government and Coordinator, he provided only toilet building materials to several Bhagwati beneficiaries and he had not made toilets of several Foundation, Upleta beneficiaries. Despite that, he produced bills of all (2) The toilets in Okha Nagarpalika, deposited its cheques Coordinator, Vikas in the bank accounts of both the organizations and Bharti, Kheralu withdrawn the said amount and thus, he has caused revenue loss to the government.
Shri Kishorekumar The accused, in the capacity of president of three Narandas different organizations, did not construct toilets in Devmurari Okha Nagarpalika Area, which were required to be (1) The President, made as per the resolution of the government and Jan Seva Mandal, he provided only toilet building materials to several Kathrota beneficiaries and he had not made toilets of several (2) The President, beneficiaries. Despite that, he produced bills of all Maruti Charitable toilets in Okha Nagarpalika, deposited its cheques Trust, Rajkot in the bank accounts of the organizations and (3) --- withdrawn the said amount and thus, he has caused revenue loss to the government.
17.From the record, it appears that the respondent accused were subjected to inquiry wherein the respondents were called by the investigating officer and their statements have been recorded. It also appears that during the investigation, the documents in the nature of work order, the bills, documents regarding completion of work, the inspection carried out and the documents pertaining to passing of bills have been received. Therefore, the nature of investigation appears to be such that it would be based on the documentary evidence. It appears that all such documents are Page 10 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019 R/CR.MA/12034/2018 ORDER either from the government record or from the offices of the NGO, Charitable Trust which were given the responsibility and such documents are already in custody of the investigating agency. Therefore, no custodial interrogation may be necessary.
18.The offence undoubtedly is wide spread involving many individuals who have played their role which may be termed to be 'his part' in commission of the offence. However, such role can be easily brought on record even on the basis of the documents which are now part of the investigation and therefore, also custodial interrogation may not be necessary. The Special Court has dealt with the statements of both the sides and has observed it is not a case where there is absolutely no construction of toilets and only money in the name of the toilets are siphoned and from the records of the case, it appears to be only to the extent that construction of toilets is carried out not as per the norms. Therefore, the degree of involvement of the individual accused persons will have to be viewed with that consideration. The respondent accused are not having any criminal history and are engaged in a legal activity of construction which has been done at a similar level.
19.This Court in the case of another Municipality where the offence came to be registered for similar nature of illegality in construction of toilets has examined the Scheme for building toilets for the poor citizens under the local body or Municipality and have granted bail to the accused persons who are also the Office Bearers of the Municipality as well as the employees. This Court in its order Page 11 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019 R/CR.MA/12034/2018 ORDER dated 10.04.2017 in Special Civil Application No.2743/2017 pertaining to construction of toilet under the Jasdan Nagar Palika has granted anticipatory bail to the President of the Nagar Palika. Having considered the observations of this Court in the aforementioned order, and the similarity in the factual matrix, the Court can draw support from the observations made therein :-
"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 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 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 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- Page 12 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019
R/CR.MA/12034/2018 ORDER 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."
20.This Court finds in the impugned order that the Special Court has assigned proper reasons and has also imposed appropriate conditions so as to protect the interest of the investigation. In view of the aforesaid, no case is made out for interference with the impugned order.
21.In view of the above, the applications deserve to be dismissed and are hereby dismissed. Notice is discharged.
Sd/-
(A.Y. KOGJE, J) Caroline Page 13 of 13 Downloaded on : Tue Jun 25 23:25:03 IST 2019