Gujarat High Court
Amitkumar Manilal Patel vs State Of Gujarat on 22 September, 2023
NEUTRAL CITATION
R/CR.MA/16376/2023 ORDER DATED: 22/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16376 of 2023
==========================================================
AMITKUMAR MANILAL PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MOHIT P PATHAK(7344) for the Applicant(s) No. 1
MR LB DABHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 22/09/2023
ORAL ORDER
[1.0] RULE. Learned APP waives service of notice of Rule on behalf of the respondent - State.
[2.0] By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11200045231094 of 2023 dated 13.07.2023 registered with Umargam Police Station, District Valsad for the offences punishable under Sections 406, 409, 420, 465, 467, 468, 471 and 114 of the Indian Penal Code, 1860.
[3.0] Learned advocate for the applicant submitted that present applicant is falsely enroped in the offence. The applicant has been serving as Sarpanch of the Solsumba Gram Panchayat since 24.01.2022 and during the period 23.01.2017 to 22.10.2022, he was serving as Deputy Sarpanch. During this period, after Page 1 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined following the due procedure and after passing appropriate resolution in Solsumba Gram Panchayat, it was decided in the general meeting of the Panchayat to renovate the market and to construct shops on the land bearing old Survey Nos.260 and 263 (New Survey Nos.706 and 2396), which was in occupation of the Panchayat and wherein structure of some wooden cabins was too old and dilapidated condition. After passing appropriate resolution unanimously the Panchayat resolved to construct the market and for that tenders were floated by issuing notice in the local newspaper and undertaken the renovation work and put up new shops under the administration of the Panchayat qua the said work on Public and Private Partnership (PPP) basis for which purpose one bank account in the name of Solsumba Village Panchayat (Bazar) was opened in the HDFC Bank which was duly maintained by the Panchayat. There is no allegation of misappropriation and no any amount is siphoned by the present applicant. Further, keeping grudge of one ACB case filed earlier as well as due to some administrative lapses, during the inquiry in connection with applications filed by some persons, the report came to be filed and thereafter notice for the alleged breach of the rules and regulations under the Panchayat Act also came to be issued which is replied by the present applicant though subsequently present FIR came to be lodged for alleged offence committed during the period 07.09.2018 to 13.07.2023. Hence, considering the aforesaid fact, whatever allegations leveled in the FIR are in the nature of administrative lapse and no fabrication or concoction of any document is there. The applicant Page 2 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined has not taken any undue advantage of the funds of Panchayat, has not committed any offence of criminal breach of trust or cheating with anybody. Further, the property in question is let out by way of lease deed which is permissible under the Gujarat Panchayat Act. In absence of any material, present FIR came to be lodged wherein the present applicant is falsely enroped due to political rivalry and submitted that applicant is ready and willing to cooperate the investigation. Hence, he requested to allow the present application as there is no requirement of custodial interrogation.
[4.0] Learned APP appearing for the State has vehemently opposed the present application and stated that, the present applicant being Sarpanch, in connivance with office bearers of the Panchayat, has committed the fraud. Though the property was not belonging to the Panchayat and was a gauchar land, construction has been erected without following the due procedure under the Gujarat Panchayat Act. Nonetheless, the survey numbers are also different and subsequently the applicant without any permission letter to deposit the amount, the applicant and other accused have deposited an amount of Rs.3.50 Crores in the private account in HDFC Bank and thus, the applicant has managed and done administration of the said amount on his own by flouting the provisions of the Gujarat Panchayat Act. Further, on inquiring from the applicant, it is found that the construction of alleged shopping center is being done in another portion and parcel of the property. The said property is not the same property on which the resolution was Page 3 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined passed to erect the shopping center in Old Survey Nos.260 and 263 (New Survey Nos.706, 2396). Further, if 7/12 village abstract of the said property is perused, it reveals that property does not belong to Solsumba Gram Panchayat but is government land. Nonetheless, the lease deed is executed in favor of the shop- keepers wherein it is mentioned that the shops are situated in the non-agricultural land bearing S.No.174/1/1/paikee 1. Thus, it clearly reveals that the entire transaction is sham and fraudulent transaction and as an eye-wash of having followed the due procedure, the applicant has erected the construction on the said land. Further, he has submitted that during the investigation, it also revealed that no tender was floated by inviting public notice and that two companies viz. Komal Construction and Prince Construction both, were under the control of the present applicant as he was engaged in the business of the construction, he had employed two supervisors and in the name of those two supervisors, account in the name of two firms came to be opened. Further, the actual administration of the said two firms was being done by the nephew viz. Pintubhai of the present applicant and thus, the applicant has managed the entire construction and amount received towards construction in those two accounts, which were managed and run indirectly by the present applicant. Thus, prima facie, involvement of the present applicant is there and huge amount is siphoned away under the guise of administration of the Panchayat and as investigation is at a nascent stage, custodial interrogation is required. Hence, he has requested not to exercise the discretion in favor of the Page 4 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined applicant and has requested to dismiss the present application.
[5.0] Heard learned advocates appearing for the respective parties and given thoughtful consideration to the arguments canvassed by both sides. It is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided.
[6.0] Going through the FIR, it appears that the FIR is filed at the instance of Akshaysinh Jawaharsinh Rajput, who is Taluka Development Officer, Umargam as he had received applications from villagers of village Solsumba Gram Panchayat about the irregularities after the inquiry in the construction of shops erected over the gauchar land and about irregularity in the Page 5 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined payment and collection of money in the guise of Gram Panchayat.
[6.1] During the inquiry, earlier there were 57 cabins and then Panchayat has passed the resolution to erect the new shopping center on the Public and Private Property over the land bearing Old Survey Nos.260 and 263 (New Survey Nos.706 and 2396) though the said land was not belonging to the Gram Panchayat and is vested with the State Government, without there being any title or ownership of the Panchayat and even the land does not vest in the Panchayat though they have passed the resolution. Nonetheless, the said land was a gauchar land and construction is erected without floating the tenders and without following the due procedure the applicant and other accused had entrusted the work of construction to two companies viz. Komal Construction and Prince Construction both were indirectly under the control of the present applicant and his nephew one Pintubhai was the administrator of said firms and the owners of the said two firms who were earlier engaged as supervisors by the present applicant for his construction work and they were shown as proprietors of the said two firms.
[6.2] Further, whatever amount is collected is deposited in the private account though it is mandatory that the Panchayat has to keep and maintain account in Government or Nationalized Bank. The said account is opened in the private Bank without any permission of the competent authority and same is not being deposited in the bank account of the Panchayat but deposited in private account held with HDFC Bank, Solsumba Gram Panchayat Page 6 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined (Bazar). Prima facie, the said act is against the rules and regulations of the Panchayat and prima facie, against sections 111 and 112 of the Panchayat Act as the amount is collected under the guise of funds of Panchayat and therefore, the said amount was required to be deposited in the account of the Local Funds still however, the said amount is deposited in the private account. Even no audit is carried out for the said amount. Thus, there is no check over the said amount or account.
[6.3] Further, it is alleged in the complaint that the receipts which were issued towards the deposit were also forged and duplicate. Even, it is alleged that rubber stamp and receipts are also misused and the receipts were issued to the persons who participated in the auction and from whom illegal amount is collected and said fact is also not revealed from the record of the Panchayat.
[6.4] It is submitted by the learned advocate for the applicant that the construction was put up on the property as per the rules of the Gram Panchayat though the property on which construction is put up is nowhere mentioned or entered as Panchayat property in the Asset register of the Gram Panchayat. One more aspect is also required to be considered that the lease agreement is executed qua shop-keepers wherein survey number is 174/1/1/paikee 1, which is totally different. Thus, it appears that the lease agreement is not qua shops of impugned construction. Considering the aforesaid aspect, prima facie, it appears that the entire transaction done under the guise of Page 7 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined Panchayat is sham, fictitious and nothing but an eye-wash.
[6.5] It is pertinent to note that under the Gujarat Panchayat Construction and Development, Implementation, Grant and Acquisition of Property Rules, 1995 and under Section 241 of the Gujarat Panchayat Act, budget is required to be prepared and approved with plan from the competent authority including technical approval of plan from the Taluka Development Officer and Deputy Engineer (Panchayat). The tender proceeding shall be initiated only after approval of competent authority and administrative and technical approval but in the present case, no such procedure has been followed and mere empty formality of invitation of tender is shown on record. Further, under sections 99, 100, 130, 131, 154, 155 and Schedule 1 to 3 of the Gujarat Panchayat Act, 1993 and under Rule 3, the work should be initiated only after approval of budget. Herein, no such exercise undertaken.
[6.6] This Court is of the considered view that the present applicant has misused his post and position and siphoned away huge amount in the name of Gram Panchayat. The said act on the part of the applicant is not only dereliction of the duty but more than dereliction of duty, which cannot be termed as administrative lapse. Considering all these aspects, custodial interrogation of the present applicant is required.
[6.7] Further, in connivance of Talati cum Mantri and the Deputy Sarpanch, who are also facing charges under the same FIR, Page 8 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined siphoned huge amount under the guise of administration of Panchayat and under the shield of welfare of village people, the applicant has not only misused his power but has used his power for his own monetary benefit and even shop-keepers who were allotted the shops and had given the amount have also raised their voices about the irregularity and illegality committed by the present applicant-accused. Present accused is also have past antecedents as offence under Prevention of Corruption Act is also registered against the present accused.
[6.8] Present applicant was serving as Deputy Sarpanch since 24.01.2022 and cheques were issued in favor of two firms and there was direct interest of the Deputy Sarpanch. Nonetheless, the said account was in private bank and the applicant has operated the said account by giving his specimen signature whereas specimen signature of Talati cum Mantri shall be furnished to operate the bank account and by keeping aside the Talati cum Mantri, the present applicant acted as a signing authority and intentionally avoided joint operation of the said bank account and present applicant has furnished his specimen signature and operated such dummy account which is opened in the private bank without any permission. All these aspects speak volumes about the conduct and modus operandi of the present applicant and therefore also, custodial interrogation of the present applicant is required.
[7.0] Considering the aforesaid all facts as also keeping in mind the law laid down by the Hon'ble Supreme Court in the case of Page 9 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined Siddharam Satlingappa Mhetre V/s State of Maharashtra and Others reported in (2011) 1 SCC 694, and going through the material very carefully available against the accused it appears that herein, no complaint has been made with view to humiliating or tarnish the image of the present applicant.
[7.1] Further, considering the allegation made in the FIR, for the qualitative investigation, presence of applicant is required and custodial interrogation is necessary. Thus, prima facie it appears that accused has played active role and qualitative investigation is necessary in the matter.
[7.4] When serious offences are disclosed and involvement of an accused is prima facie established then, the Court would be loath to lean in favour of grant of pre-arrest bail in absence of any other overriding considerations. The alleged offence is in nature of white collar and socio economic offence, this Court is conscious with the safeguards provided under Section 438 and concept of the personal liberty. But herein, this court is of considered view that, the present offence is committed very smartly and in very planned and methodical manner which is not just an offence against any individual rather the largest societal interest and in such circumstances, the delicate balance is required to be maintained between two rights one against the personal liberty and second is societal interest. Arrest is part of the process of investigation and intended to secure several purposes in which the accused may provide information, during the discovery of material facts and relevant information. In such Page 10 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined circumstances, when investigation is in preliminary stage if, anticipatory bail is granted may hamper the investigation and to collect the material in the more information, and find out the involvements of another person custodial interrogation is also necessary, therefore, keeping in mind the law laid down by the Hon'ble Supreme Court in the case of (i) State Rep. by the CBI V/s Anil Sharma reported in 1997 (7) SCC 187, (ii) Adri Dharan Das V/s State of W.B. reported in 2005 (4) SCC 303 and (iii) P. Chidambaram V/s Directorate of Enforcement reported in AIR 2019 SC 4198, wherein the Hon'ble Supreme Court has held held as follows:
"The legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest.
Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. It may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Pre-arrest bail is to strike a balance between the Page 11 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In this view, it cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant/applicant under Article 21 of the Constitution of India.
Consequently, power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the pre- arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Anticipatory bail is to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy".
Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation".
[7.5] This court has also kept in mind the law laid down by the Hon'ble Supreme Court in the case of Pratibha Manchanda vs The State Of Haryana reported in AIR 2023 SC 3307, wherein para 19 read as under :
"19. The relief of Anticipatory Bail is aimed at safeguarding Page 12 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice.
The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."
Even in the case of Jai Prakash Singh V/s State of Bihar and another, reported in (2012) 4 SCC 379, Hon'ble Supreme Court was pleased to hold:
"Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."
[7.6] The object of anticipatory bail is that person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. In present case, no any such sort of allegation or bias is found out it is needless to say that order under Section 438 is not a passport to the commission of trial nor a seal against any serious accusation, which adversely affects the society.
Page 13 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined [8.0] In the above facts and circumstances and considering the observations on the legal aspect of the matter, as applicant is actively involved in the offence therefore, I have absolutely no doubt that if applicant is equipped with such an order of anticipatory bail before he is interrogated by the Police, it would greatly harm the investigation and would impede the prospects of unearthing huge amount of misappropriation.
[9.0] Further, the applicant has used his powers in guise of administration of Panchayat for his personal gain and benefit and committed an offence. The present applicant-accused is involved in white collar socio-economic offence which constitute a class apart and needs to be visited with a different approach. The economic offences adversely affect the economic and social fabric of the country. At this stage, reference is required to be made to the decision of Hon'ble Apex Court in the case of State of Gujarat vs. Mohanlal Jitamalji Porwal & Others reported in (1987) 2 SCC 364, wherein it has been observed in paragraph 5 as under in paragraph:
"The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar Page 14 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023 NEUTRAL CITATION R/CR.MA/16376/2023 ORDER DATED: 22/09/2023 undefined crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest."
In such circumstances also, grant of anticipatory bail at this stage would frustrate the investigation.
[10.0] Having considered nature and seriousness of the charge, prima facie involvement of accused and possibility of tempering with evidences, it does not appear to be just and proper to exercise the discretion in favour of the applicant and accordingly, the application for anticipatory bail is dismissed. Rule is hereby discharged.
(HASMUKH D. SUTHAR, J.) Ajay Page 15 of 15 Downloaded on : Mon Sep 25 20:40:32 IST 2023