Bombay High Court
Vijendra S/O. Gulabsingh Jadhav vs The State Of Maharashtra on 2 December, 2020
Author: V.L.Achliya
Bench: V.L.Achliya
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
927 ANTICIPATORY BAIL APPLICATION
NO.834 OF 2020
VIJENDRA S/O. GULABSINGH JADHAV
VERSUS
THE STATE OF MAHARASHTRA
...
Mr.S.G.Chapalgaonkar, Advocate for the
applicant.
Mr.V.M.Kagne, APP for the respondent-State.
Mr.Rajendra Deshmukh, Senior Counsel i/b.
Mr.Indraneel S.Godsay and Devang R.Deshmukh,
Advocate for the informant.
...
CORAM : V.L.ACHLIYA,J.
DATE : 02.12.2020
P.C.
1] On an apprehension of arrest in
connection with Crime No. 0408 of 2020
registered with Jinsi Police Station,
Aurangabad, for the offences punishable u/s.
406, 420, 468, 471 r/w. 34 of the IPC, the
applicant has preferred this Application
seeking anticipatory bail.
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2] Heard learned counsel for the
applicant-accused, learned APP for the
respondent-State and advocate representing
the informant, who has been permitted to
assist the prosecution.
3] In brief, it is the contention of
the learned counsel for the applicant that
the applicant is innocent and likely to be
arrested and humiliated for no offence
committed on his part on account of false and
frivolous complaint lodged at the instance of
informant on account of inter se dispute
amongst trustees of the trust.
4] It is submitted that on 04.09.2020,
Baburao Pawar, the informant, lodged a
complaint alleging therein that the present
applicant, who was Secretary of Nisargadip
Education Society, appointed 27 Lecturers in
the year 2019 by creating a farce that the
procedure required to be followed for
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appointment has been duly followed. It is
alleged that though no advertisement was
published in daily news paper 'Sakal' in its
edition published on 01.08.2019 still the
documents have been created to show that the
advertisement was published in said news
paper in edition published on 01.08.2019,
inviting application to fill up the vacant
post of the Lecturers. So also false
undertaking were prepared and submitted to
competent authority showing that the
lecturers so selected are not employed and
working in any other institution. By creating
such false and fabricated documents approval
of the University was obtained to appointment
of 27 Lecturers.
5] In the background of the allegations
made in the complaint, learned counsel
submits that the complaint filed is per se
false and frivolous and nothing but an
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attempt to implicate the applicant in a false
case with a motive and to take over the
control of the Education Society of which the
applicant is Secretary. It is submitted that
the applicant is serving as Headmaster in a
school run by Saibaba Education Society of
which informant is the Chairman. The
applicant is also the Secretary of Nisargadip
Education Society, which runs Tuljabhavani
Arts and Science College at Chitepimpalgaon.
The informant is interested to take over the
management of the Nisargadip Education
Society and in that attempt he joined hands
with the brother of the applicant and raised
dispute before the Charity Commissioner and
change reports have been filed by the rival
groups claiming to be office bearers of the
trust. The matter is subjudiced before the
Assistant Charity Commissioner. With an
attempt to oust the applicant from the
management, initially the informant got
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lodged complaints through Mangilal Chavan
with Kranti Chowk Police Station and
Chikalthana Police Station making same
allegations. Since the police have refused to
take cognizance of the complaints, the
Complainant Mangilal Chavan filed Criminal
Misc. Application No.1471 of 2020 and
Criminal Misc. Application No.1578 of 2020 in
the Court of Judicial Magistrate First class,
Aurangabad, seeking direction u/s. 156 [3]
of the Cr.P.C. to register and investigate
the complaints filed against the present
applicant and other members of the trust.
However, no such direction was given in those
two applications. Since attempt made through
Mangilal Chavan to register criminal case
against the applicant failed, the informant
Baburao lodged complaint with Jinsi Police
Station making same allegation though no
cause of action arose within jurisdiction of
Jinsi Police Station to register and
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investigate the complaint against the
applicant.
6] By referring to allegations made in
the first information report, learned counsel
submits that the allegations made in the
complaint are false and baseless. In fact no
advertisement was published on 01.08.2019 by
the institution to fill up any post. The
allegations made in complaint in that respect
are vague and imaginary. On the contrary, the
University has granted permission to fill up
the post and to issue advertisement vide
communication dated 30th July, 2019.
Subsequent to permission granted by the
University, an advertisement was published
on 23.08.2019 in daily news paper 'Sakal'
inviting application for the post of
Lecturers to be appointed temporarily on
clock hour basis for a period of six months.
It is submitted that as the education session
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was to start from the month of June, 2020 the
persons already working were given
continuation. The University has granted
approval to those temporary appointments
which were made for limited period of six
months. The alleged undertaking were not
furnished by the applicant but same were
furnished by two Lecturers, who were selected
but not joined the post after their
selection. In that view, there is no
substance in the allegations made in respect
of cheating, fabrication of documents and
commission of act of criminal breach of trust
on the part of the applicant. On the basis of
such false and frivolous complaint lodged by
informant to anyhow involved applicant in
criminal case there is likely that applicant
was arrested, humiliated and harassed for no
offence committed on his part.
7] On the other hand, learned APP
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supported the order passed by the learned
Additional Session Judge and submits that in
order to conduct proper investigation, the
police may require custodial interrogation of
the applicant. However, learned APP fairly
conceded that the allegations made in the
complaint as to publication of advertisement
in news paper 'Sakal' in its edition dated
01.08.2019 made by the informant found to be
without any basis. In fact the advertisement
was duly published on 23.08.2019 in daily
news paper 'Sakal' thereby inviting
applications for the post of Lecturers. So
also the alleged undertakings were not given
by applicant. Those undertakings were given
by two applicants appeared for interview.
Learned APP further conceded that in the
complaint lodged there are no allegations of
alleged misappropriation of amount of
scholarship etc. on the part of the
applicant.
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8] Learned advocate representing the
informant opposed the application with
contention that in order to conduct proper
investigation, the custodial interrogation of
the applicant is necessary. By referring to
overall facts of the case, nature of
accusations made against the applicant,
learned counsel submits that there is prima
facie case to connect the applicant with the
offence registered against him. It is
submitted that the University has granted
permission vide communication dated 30th July,
2019, to publish an advertisement inviting
application to fill up the post of Lecturers.
The advertisement was published on
23.08.2019. However, the appointment orders
were issued prior to the permission granted
by the University to publish advertisement
and to fill up the post. In that the
procedure prescribed for appointment was not
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followed in appointment of Lecturers. The
applicant has manipulated the process and
indulged into act of making illegal
appointments.
9] It is further submitted that
although the applicant is not holding the
post of Secretary of the Nisargadip Education
Society, still he is posing himself to be
Secretary of the trust. He has opened the
account with the Bank of Maharashtra, showing
himself to be a Secretary of the trust. It is
further submitted that there is scope to draw
inference that the scholarship received by
the trust might have been misused and
misappropriated by the applicant. In order to
conduct proper investigation, the custodial
interrogation of the applicant is necessary.
10] I have carefully considered the
submissions advanced in the light of overall
facts of the case, nature of accusations made
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against the applicant and the order passed by
the learned Additional Sessions Judge,
rejecting the application, seeking
anticipatory bail filed by the applicant.
11] If the allegations made in the first
information report are taken into
consideration then the allegations made in
the complaint confines to creating farce of
publication of advertisement in daily news
paper 'Sakal', in its edition dated
01.08.2019 inviting application for the post
of Lecturers and filing of false undertaking.
In the complaint lodged, there are no
allegations made as to misappropriation of
amount of scholarship by the informant.
12] So far as allegations made as to
farce being created of publication of
advertisement in the news paper 'Sakal' in
its edition dated 01.08.2019, learned APP has
fairly conceded that no substance found in
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the said allegations. In fact there was due
publication of advertisement in news paper
'Sakal' in its edition dated 23.08.2019.
13] Similarly, the allegations made as
to giving false undertaking, no such
undertaking found to be given by the
applicant. Those undertakings were given by
two candidates, who were selected the posts
but not joined the posts. In that view, the
allegations made in the complaint found to be
prima facie false and without any basis.
14] Thus, on the face of allegations
made in the complaint, no prima facie case
exist to invite registration of offence under
Section 406, 420, 468, 471 r/w. 34 of the
IPC.
15] Perusal of the order dated 19th
September, 2020 spells out that the
application has been rejected only for the
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reason that there are allegations as to
misappropriation of Rs.17,60,878/- received
towards scholarship and amount of
Rs.40,53,745/- received towards grant in aid
by the trust. The observations made in para
nos. 16 and 17 reads as under:
16. So far as the appointment of the
27 posts of the assistant professors
in the said college etc. are
concerned, the original documents like
the proposal for approval etc. appear
to have been filed with the said
University and the same can be
recovered during the course of
investigation from the office of said
University. It can also be verified
from the office of said newspaper
whether such advertisement was issued
at any point of time. It can also be
verified from the office of the said
University whether it had approved the
temporary appointment of the 27
teachers for the year 2019-2020. For
that purpose the custodial
interrogation with the applicant does
not appear necessary.
17. However, there are allegations
about receipt of certain funds towards
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the grant in aid and the scholarship
to be given to the students from the
Government and its credit to the
account of the said Trust / college in
the Bank of Maharashtra. The presence
of the applicant appears necessary for
the custodial interrogation relating
to appropriation or relating to
allegation of its misappropriation.
There are allegations that an amount
of Rs.17,60,878/- towards scholarship
and an amount of Rs.40,53,745/-
towards the grant in aid has been
received by the said Trust / college.
However, accounts for its disposal are
not given by the applicant. The
investigating officer has expressed
apprehension that there is every
possibility of fraudulent financial
transactions. Under such
circumstances, his presence for
custodial interrogation relating to
same would be necessary.
16] It is very surprising that learned
Additional Sessions Judge has rejected the
application to enquire into the allegations,
which never form part of the complaint lodged
by the informant. Learned APP and counsel
representing the informant has fairly
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conceded that in the complaint filed by first
informant no allegations of misappropriation
of amount of scholarship and grant in aid
have been made against the applicant. Learned
counsel for the informant submits that the
above quoted observations came to be recorded
in the order as during the course of hearing
the informant has expressed his apprehension
as to misappropriation of amount received
towards scholarship. In view of absence of
any allegations as to misappropriation being
made in the complaint, the learned Additional
Sessions Judge should not look into those
allegations and rejected application on the
basis of such vague allegations made by
informant during the course of submission.
The role of the informant during the course
of hearing was confined to assist the
prosecution. He cannot steps into shoes of
prosecution. If the informant had received
any such information as to misappropriation
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of amount of scholarship or grant in aid it
was expected on the part of the informant to
have filed specific complaint to that effect.
17] The applicant has filed an affidavit
stating therein that institution has been
permitted to run the college on permanent no
grant basis and the institution has not
received any grant in aid from Government.
Learned counsel for the applicant also
pointed out that from last two financial year
no amount of scholarship payable to student
has been received from the Central
Government. On 29.09.2020, a request letter
was sent to Central Government to release the
scholarship for the financial years 2018-19
and 2019-20. It is submitted that if the
scholarship itself not received from the
Central Government, there is no question of
same being misappropriated by applicant or
any body else. The allegations made in the
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complaint make out no prima facie case to
attract the offences as registered against
the applicant.
18] Thus, on due consideration of the
submissions advanced in the light of overall
facts of the case, nature of accusations made
against the applicant and the allegations
made in the first information report which
are found to be baseless, I am of the view
the applicant deserves to be extended
protection under Section 438 of Criminal
Procedure Code. Hence the following order :
ORDER
i] The application is allowed.
ii] The interim bail granted vide order dated 29.09.2020 is confirmed and made absolute on same terms and conditions.
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iv] It is clarified that the observations made in the order are made for limited purpose of deciding the present application and none of the observations to be treated as observations made as to the merits of the case of the prosecution against the applicant.
[V.L.ACHLIYA] JUDGE DDC ::: Uploaded on - 07/12/2020 ::: Downloaded on - 09/02/2021 14:06:13 :::