Gujarat High Court
Rajnikant vs State on 27 April, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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CR.MA/3412/2010 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3412 of
2010
=========================================================
RAJNIKANT
MANIBHAI PATEL & 1 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
PM THAKKAR, SENIOR COUNSEL for M/S THAKKAR ASSOC.
for
Applicant(s) : 1 - 2.
MR DC SEJPAL, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 27/04/2010
ORAL ORDER
1. This is an application preferred under Section 438 of the Code of Criminal Procedure by the applicants who are apprehending their arrest in connection with CR No. I 7 of 2010 registered at Sojitra Police Station for the offence punishable under Sections 409, 467, 468, 471 and 114 of the IPC.
2. Mr PM Thakkar, learned Senior Counsel for the applicants submitted that the applicants are not prima facie involved in the commission of offence as alleged in the FIR and therefore, sought to be involved on the basis of the political rivalry. Learned Senior Counsel placing reliance on the FIR submitted that as per the FIR, there was a scheme of 15% Vivekadhin grant for construction of C.C. Road in the year 2005-06 issued by Jilla Ayojan Mandal, Anand. The proposal for construction of C.C. Road was made by Taluka Panchayat, Sojitra in the year 2005-06. The Gram Panchayat, Piplav has passed necessary resolution and executed the agreement with Taluka Panchayat, Sojitra. The work was to be carried out by the Gram Panchayat and inspection was carried out by Additional Assistant Engineer of Taluka Panchayat, Sojitra. The engineers are required to carry out the necessary measurement of the work and it was also required to be noted in the measurement book after visiting the site. Thereafter, the engineer would issue completion certificate. The entire work was done under the supervision of engineer of Taluka Panchayat, Sojitra and completion certificates have been issued by the engineers of Taluka Panchayat. Thus, it is submitted that the applicants have not played any role in the entire transaction and therefore, they deserve to be released on anticipatory bail. It is submitted that Piplav Gram Panchayat received a notice dated 29.2.2008 from the office of Taluka Panchayat, Sojitra wherein it was instructed by Taluka Panchayat, Sojitra to recover an amount of Rs.76,062/-. The Gram Panchayat had issued notices dated 10.3.2008, 22.4.2008 and 13.5.2008 to the concerned material supplier and labour supplier. In pursuance of the notice dated 29.2.2008, Piplav Gram Panchayat passed the resolution in the meeting held on 4.3.2008 and it was decided to recover the amount of Rs.76,062/- from the person who had received the amount by cheques from Piplav Gram Panchayat. In pursuance of the said notice, Shri Talpad Natubhai Maganbhai and Shri Talpada Mafatbhai Bachubhai have deposited the total amount in the sum of Rs.76,062/- to the Gram Panchayat, Piplav on 30/31.5.2008 and the receipt to that effect was also issued by the Gram Panchayat, Piplav. The Piplav Gram Panchayat deposited the aforesaid amount in the Treasury Office, Petlad on 31.5.2008. Necessary challan was also issued by the Treasury Office, Petlad in favour of Piplav Gram Panchayat. Thus, the entire amount is received back even prior to lodging of the FIR and as no financial loss was caused to the Panchayat or the Government in this transaction, the prayer as set out in the application be granted. The learned Senior Counsel for the applicants has placed reliance on the judgment reported in (2010) 1 SCC 684 in the case of Ravindra Saxena Vs. State of Rajasthan in support of the submission that considering the ratio laid down in the aforesaid judgment, the applicants deserve to be granted anticipatory bail as prayed for in the application.
3. Mr DC Sejpal, learned APP for the State, while opposing the bail application, submitted that the applicants are facing the charge for the offence punishable under Sections 409, 467, 468, 471 and 114 of the IPC. Considering the role attributed to the applicants and the manner in which the offence is committed by the applicants along with the other accused, no discretionary relief be granted to the applicants under Section 438 of the Code of Criminal Procedure. The learned APP submitted that on perusal of the statement of witnesses and the material on record of the case, the applicants are prima facie involved in the commission of offence which is of a serious nature. Taking into account, the manner in which the offence is committed by the applicants along with the other accused, even if the payment is made and the amount in question is deposited, no discretionary powers can be used in favour of the applicants by granting anticipatory bail under Section 438 of the Code of Criminal Procedure and as the application is without any merits, it deserves to be rejected.
4. I have heard Mr PM Thakkar, learned Senior Counsel for the applicants and Mr DC Sejpal, learned APP for the State at length and in great detail. I have considered the role attributed to the applicants as reflected in the FIR, police papers, statement of witnesses and other material which is produced for my perusal. Since the application preferred by the applicants is under Section 438 of the Code of Criminal Procedure and they are seeking anticipatory bail, it would not be proper to discuss the evidence in detail in the case as the investigation in the matter is also not over. I have also considered the judgment cited by the learned Senior Counsel for the applicants in the case of Ravindra Saxena Vs. State of Rajasthan, reported in (2010) 1 SCC 684 and the ratio laid down by the Apex Court. However, considering the material on record of the case and the prima facie involvement of the applicants in the commission of offence punishable under Sections 409, 467, 468, 471 and 114 of the IPC, I am of the view that the applicants are not entitled to claim the discretionary relief as prayed for in the application. Even if the payment is made of the huge amount of Rs.76,062/-, the applicants cannot wriggle out on the plea that since the amount in question is already paid, they should be granted anticipatory bail because it is not in dispute that the complaint filed is not frivolous, nor is it the case of the applicants that they are falsely implicated in the commission of offence punishable under Sections 409, 467, 468, 471 and 114 of the IPC. Thus, taking into account the totality of the facts and circumstances of the case and the material on record of the case which is perused by me, I am of the view that no discretionary relief be granted to the applicants as prayed for in the application while exercising the powers under Section 438 of the Code of Criminal Procedure. The powers under Section 438 of the Code of Criminal Procedure are of an extraordinary nature and can be exercised in a very rare and exceptional circumstances.
5. For the foregoing reasons, there is no merit in the application and the same is hereby rejected.
[H.B.ANTANI, J.] mrpandya Top