Bombay High Court
Rajendra Mahadev Patil vs State Of Maharashtra on 2 September, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-AS:35230-DB
6 aba 1156 of 2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO.1156 OF 2024
Sudarshan Nageshrao Bhojankar
Rajendra Pandurang Zunzarrao ... Applicants
versus
The State of Maharashtra ... Respondent
WITH
ANTICIPATORY BAIL APPLICATION NO.1157 OF 2024
Vijay Padmakar Shingade
Vilas Pandurang Pawar
Ravindra Anandrao Patil
Sitaram Lakshaman Kavarkhe
Gulab Mumjaji Wakale ... Applicants
versus
The State of Maharashtra ... Respondent
WITH
ANTICIPATORY BAIL APPLICATION NO.3328 OF 2023
Shashikant Jaywantrao Shinde ... Applicant
versus
The State of Maharashtra ... Respondent
WITH
INTERIM APPLICATION NO.524 OF 2024
IN
ANTICIPATORY BAIL APPLICATION NO.3328 OF 2023
Rajendra Mahadev Patil ... Applicant/Intervener
and
Shashikant Jaywantrao Shinde ... Applicant
versus
The State of Maharashtra ... Respondent
Mr. Shyam Kalyankar for Applicants in ABA No.1156 of 2024.
Mr. Saurabh Butala, for Applicants in ABA No.1157 of 2024.
Mr. Raja Thakre, Senior Advocate with Mr. Uday Nighot, Mr. Saurabh
SSP 1/15
6 aba 1156 of 2024.doc
Butala, Ms. Sulajja Patil, for Applicant in ABA 3328 of 2023.
Mr. Ajay Patil, APP for State in all matters.
Mr. Girish Kulkarni with Mr. Atharva R.B. i/by Mr. Vaibhav Gaikwad, for
Intervener in IA 524 of 2024.
Mr. Ajay Kumar Landge, ACP Crime Branch, Navi Mumbai, present.
CORAM: N.J.JAMADAR, J.
DATE : 2 SEPTEMBER 2024
P.C.
1. Heard the learned Counsel for the parties.
2. These applications are for pre-arrest bail in connection with
C.R.No.424 of 2023 registered with APMC Police Station, Navi Mumbai,
for the offences punishable under Sections 406, 409, 420 read with
Section 34 of the Indian Penal Code, 1860 and Section 13(2) of the
Prevention of Corruption Act, 1988.
3. The applicant in ABA No.3328 of 2023 is one of the directors of
Agriculture Produce Market Committee, Mumbai (APMC, Mumbai). The
applicant was also elected as a director of APMC for 10 years as the
representative of Mathadi workers. The applicant is a member of
Maharashtra Legislative Council.
4. The applicant No.1 in ABA No.1157 of 2024 is posted as a Deputy
Secretary with the APMC. The applicant No.2 is the Office
Superintendent. Applicant Nos.3 to 5 have since retired from the post of
SSP 2/15
6 aba 1156 of 2024.doc
Deputy Secretary from APMC, Mumbai.
5. The applicant No.1 in ABA No.1156 of 2024 is working as a
Deputy Engineer and Applicant No.2 as the Junior Engineer with APMC.
6. The prosecution case, in brief, runs as under :
7. Suresh Maru had filed a Petition, being Writ Petition No.3099 of
2021, seeking directions to initiate an inquiry against the officials of
APMC, representatives of people and certain individuals by making
allegations that he was made to pay huge amounts by way of undue
advantage for granting favour of allotment of Public Sanitary
Convenience (PSC) Block contracts in the APMC premises. Suresh
Maru had, however, subsequently sought to withdraw the said petition.
By an order dated 5th January, 2022 the Division Bench of this Court,
finding the allegations in the Petition serious, directed the respondent-
State to cause an inquiry treating the Memo of the petition as basic
material through an officer not below the rank of ACP and on the basis
of the said report take further action and file action taken report.
8. Pursuant to the said direction, the then ACP, Vashi Division, Navi
Mumbai conducted an inquiry and, inter alia, concluded that there was
no substance in the allegations of the petitioner Suresh Maru that the
SSP 3/15
6 aba 1156 of 2024.doc
applicant, being the Director of APMC, and other co-accused had
demanded and were paid illegal gratification. It was further noted that
there were irregularities in awarding of the contract of PSC Blocks, re-
possessing the PSC Blocks, not collecting the deposits and not
executing the rent agreements etc. and the said irregularities were
within the remit of the jurisdiction of the Director Marketing, Maharashtra
State and, therefore, independent action be initiated in respect of those
irregularities.
9. The said report was submitted on 4th April, 2022. Subsequently,
pursuant to a question raised in the State Legislative Assembly, a fresh
inquiry was instituted. In the fresh inquiry report submitted by ACP,
EOW, Navi Mumbai, dated 9th August, 2023, it was inter alia noted that
Himali Social Foundation, run by Suresh Maru, was allowed extension of
contract to run PSE Blocks despite the term of the contract having been
expired without following the tender process, at the intervention of the
applicant in ABA 3328 of 2023, in the year 2011. The applicant in ABA
No.3328 of 2023 had, thus, assisted Suresh Maru to continue to operate
the PSC Block. The ACP further noted that the officers and office
bearers of APMC had, in connivance with Suresh Maru, allowed him to
SSP 4/15
6 aba 1156 of 2024.doc
operate 10 units of PSC Blocks out of 12 units during the period 2005 to
2017. The contract was awarded without following the tender process,
and in the year 2017 and 2018 defective tender process was followed.
Thus, there was wrongful gain to Suresh Maru and wrongful loss to
APMC.
10. In substance, the applicants dishonestly and fraudulently awarded
the contract to operate PSC Blocks to Suresh Maru by deliberately
deviating from the procedure prescribed for awarding the contract, and,
thereby caused wrongful loss to the government to the tune of
Rs.7,61,49,689/-. In the process, the applicants obtained undue
advantage.
11. When ABA No.3328 of 2023 was first listed before the Court on
30 November 2023, this Court was persuaded to grant interim protection
to the applicant observing, inter alia, as under :
"6. Mr. Raja Thackary, learned senior counsel for the
applicant, submitted that the applicant has been falsely roped in
due to political vendetta. In the inquiry instituted pursuant to the
directions of this Court, no irregularity was found. The allegations
of illegal gratification were found to be unsustainable.
Subsequently, a fresh inquiry was instituted and on the basis of
the said report, the instant first information report came to be
lodged. Even in the said report, the role attributed to the accused
is that of recommending the continuation of contract to run PSC
SSP 5/15
6 aba 1156 of 2024.doc
Block after expiry of the term. Mr. Raja Thackary would urge that
pursuant to the order of this Court, it was incumbent upon the
State to consider the inquiry report submitted by the then ACP,
Vashi, Navi Mumbai and submit an action taken report before this
Court. Instead, the matter was re-inquired and the applicant has
been roped in on the strength of such inquiry report.
7. Mr. Venegaonkar, learned PP, resisted the prayer for pre-
arrest bail. It was submitted that there are grave allegations
against the applicant and the co-accused. The first inquiry was
found to be defective and incomplete. Therefore, the matter was
directed to be re-inquired into by another police officer. There is
material to show that the applicant had intervened in the tender
process and directed the then Chairman of APMC to allow Suresh
Maru to operate PSC Block beyond the contract period. Attention
of the Court was also invited to the statement of a person to whom
Suresh Maru had given interview.
8. Evidently, there are two inquiry reports. In the first report,
the allegations made by Suresh Maru were found to be not
substantiated by credible material. In the second inquiry report
prima facie, the role attributed to the applicant is that of
recommending the then Chairman of APMC to allow Suresh Maru
to continue to operate the PSC Blocks after the expiry of the term
of the contract without following the tender process.
9. Investigation is warranted to ascertain whether there was a quid
pro quo and wrongful gain to the applicant or it was a case of
mere recommendation to continue the contract beyond the term.
Prima facie, at this stage, there does not seem to be material to
indicate that element of criminality can be attributed to the said
recommendation, in the year 2011.
10. In the circumstances, it may be expedient to protect the
liberty of the applicant while directing the applicant to join in the
investigation. If further investigation reveals the complicity of the
applicant, the same can be considered at the stage of final
SSP 6/15
6 aba 1156 of 2024.doc
adjudication of the prayer for pre-arrest bail. Hence, I am inclined
to grant interim protection to the applicant."
12. Based on the aforesaid order, the liberty of the applicants in ABA
Nos.1156 of 2024 and 1157 of 2024 was also protected by an order
dated 30 April 2024.
13. I have heard Mr. Raja Thakre, learned Senior Advocate for the
Applicant in ABA No.3328 of 2023, Mr. Shyam Kalyankar, learned
Advocate for the Applicant in ABA No.1156 of 2024 and Mr. Butala,
learned Counsel for the Applicant in ABA No.1157 of 2024 and Mr. Patil,
learned APP for the Respondent-State at some length. Learned Counsel
for the parties took the Court through the material on record
14. Mr. Thakre, learned Senior Advocate for the Applicant in ABA
No.3328 of 2023, submitted that the instant prosecution is actuated by a
design to spite the applicant, in particular, and accused, in general, to
wreak vengeance. Mr. Thakre laid emphasis on the fact that, in the first
inquiry report, the then Assistant Commissioner of Police, Vashi
Division, has recorded a categorical finding that there was not an iota of
material in support of the allegations that the office bearers or officers of
APMC had either demanded or accepted any money from Suresh Maru.
As the said report was not to the liking of the rival political dispensation,
SSP 7/15
6 aba 1156 of 2024.doc
the applicant has been roped in on the basis of another inquiry report.
15. Mr. Thakre submitted that from the perusal of the material on
record, the only allegation against the applicant is that the applicant had
suggested that the contract of M/s.Himali Social Foundation be
extended by a term of five years. Eventually, the decision to extend the
contract was taken by the then Chairman and Secretary of APMC,
Mumbai. Thus, no element of criminality can be attributed to the
applicant.
16. Mr. Kalyankar, learned Counsel for the Applicant in ABA No.1156
of 2024, submitted that the applicants were not initially named in the
FIR. The applicants had no executive or decision making authority. In
the reply filed on behalf of the prosecution in opposition to the prayer for
pre-arrest bail before the learned Additional Sessions Judge, it was
alleged that the contract of construction of PSC blocks was awarded to
M/s. P.C.Jadhav. The contractor did not complete the work. The
applicants had allegedly made the contractor to handover construction
work to Suresh Maru and the bills were cleared in the name of M/s.
P.C.Jadhav. The applicant and co-accused allegedly had obtained
undue advantage in the nature of 5% commission. Mr. Kalyankar
SSP 8/15
6 aba 1156 of 2024.doc
submitted that, being the junior level officers, the applicants had no
authority to make such a decision. It was further submitted that, in fact,
M/s. P.C.Jadhav had duly completed the work and demanded release of
EMD.
17. Mr. Butala, learned counsel for the Applicants in ABA No.1157 of
2024, strongly urged that the prosecution has been biased and
completely unfair. Inviting attention of the Court to the orders passed by
this Court, Mr. Butala submitted that it was incumbent upon the State to
place report of the inquiry conducted by the Assistant Commissioner of
Police, Vashi, wherein a categorical finding was recorded that there was
no proof of any demand or acceptance of bribe from Suresh Maru.
Certain irregularities were indeed pointed out by ACP, Vashi Division,
which were within the province of the jurisdiction of the Director of
Marketing.
18. Mr. Butala further submitted that even the subsequent inquiry
records that as Suresh Maru had suffered financial loss, he had made
complaints against APMC with various authorities. Moreover, the then
Administrators, Directors and concerned higher level officers were held
responsible for the decisions which allegedly caused wrongful gain to
SSP 9/15
6 aba 1156 of 2024.doc
Suresh Maru by deviating from the prescribed procedure. Yet the then
Administrators and senior Officers having not been implicated. That
shows the unfairness on the part of the prosecution. Mr. Butala, lastly
submitted that, none of the applicants had authority to award a contract
or extend the same. Therefore, the order of interim bail deserves to be
made absolute.
19. Mr. Patil, learned APP, stoutly resisted the prayer of pre-arrest bail.
It was submitted that there was a large scale fraud in awarding a
contract to operate PSC blocks to Suresh Maru. Huge wrongful loss
was caused to the government. Mr. Patil laid emphasis on the fact that
the inquiries were conducted pursuant to the orders passed by this
Court. Therefore, the allegations of political vendetta are completely
misplaced.
20. Mr. Patil further submitted that the subsequent inquiry conducted
by ACP, EOW, Navi Mumbai, was necessitated as the first inquiry was
found to be incomplete. Therefore, the applicants cannot draw any
mileage from the fact that further inquiry was conducted.
21. I have carefully perused the material on record and given anxious
consideration to the submission canvassed across the bar. The
SSP 10/15
6 aba 1156 of 2024.doc
prosecution has alleged that the offences were committed in pursuance
of a criminal conspiracy. Evidently, there are two inquiry reports. In the
first inquiry report conducted by ACP, Vashi Division, it seems, a clear
finding was recorded that the allegations made by Suresh Maru were
not substantiated by any crediable material. The second inquiry report
concludes that the then Administrators, Directors of APMC and Officers
of APMC took decisions in deviation of the prescribed procedure and
thereby caused wrongful gain to Suresh Maru and wrongful loss to
APMC.
22. Qua the applicant in ABA No.3328 of 2023, it was alleged that in
the year 2011, at the instance of the applicant, the contract to operate
PSC blocks was renewed without following the tender process, and,
thereby, there was wrongful gain to Suresh Maru.
23. Mr. Raja Thakre made an endeavour to demonstrate that there
were multiple instances where the contracts have been renewed without
following the tender process. The applicant being a People's
representative had, at best, recommended the extension of the contract.
The ultimate decision was taken by the then Chairman and Secretary of
the Society. Thus, no criminality can be attributed to the applicant.
SSP 11/15
6 aba 1156 of 2024.doc
24. Prima facie, the aforesaid allegation of recommendation to extend
the contract, in itself, without anything more, may not fall within the
dragnet of the offences for which the applicant in ABA No.3328 of 2023
has been arraigned. Further allegation that the applicant, or for that
matter the other co-accused, had obtained undue advantage is, prima
facie, not supported by material on record. On the contrary, the first
inquiry report of ACP Vashi Division, concludes in clear and explicit
terms that there was no substance in the allegation that either bribe was
demanded or accepted by the accused.
25. As noted in the order granting interim protection, extracted above,
it does not appear that during the course of investigation any material
has been collected to show that there was a quid pro quo and wrongful
gain to the applicant in ABA No.3328 of 2023. At this length of time, and
having regard to the nature of the accusation, further custodial
interrogation of the applicant does not seem warranted.
26. For the foregoing reasons, I am impelled to make the order of
interim bail absolute qua the applicant in ABA No.3328 of 2023.
27. Qua the applicants in ABA Nos.1156 of 2023, I find substance in
the submission of Mr. Kalyankar that the accusation against the
SSP 12/15
6 aba 1156 of 2024.doc
applicants rests on a thin thread. Prima facie, there is no material to
indicate that the applicants, being the Deputy Engineer and Junior
Engineer, had either authority to award the contract or to allow the work
to be completed by a person, who was not party to the contract. Even
in the reply filed to the Application for pre-arrest bail before the Court of
Session, a guarded statement was made by the investigating agency
that the information was received that the applicants and the co-accused
had obtained 5% commission by allowing the works contract to be
completed by Suresh Maru for M/s. P.C.Jadhav. Such being the nature
of the accusation, I am inclined to make the order of interim bail
absolute qua the applicants in ABA No.1156 of 2023.
28. As regards the prayer for pre-arrest bail of the applicants in ABA
No.1157 of 2023, the reasons which weighed with the Court in granting
pre-arrest bail to the applicant in ABA No.3328 of 2023 govern the claim
of these applicants as well. The Court cannot loose sight of the fact that
the gravamen of indictment rests on the allegations made by Suresh
Maru, who came to be subsequently implicated as an accused. The
second inquiry report, in terms, records that Suresh Maru was financially
embarrassed. Mr. Suresh Maru made a number of complaints against
SSP 13/15
6 aba 1156 of 2024.doc
the APMC, its officers and officials with various authorities.
29. The second inquiry report also indicts the then Administrators,
other directors and the concerned officers of the administrative
department to have conspired to cause wrongful gain to Suresh Maru.
Thus, whether the applicants had authority to award the contract by
deviating from the prescribed procedure or extend the contract ?
whether the applicants derived any wrongful gain ? whether the
applicants deliberately took decisions which caused either wrongful loss
to APMC or wrongful gain to Suresh Maru, are the questions which
warrant adjudication at the trial.
30. Applicant Nos.3 to 5 have already retired from APMC. All the
applicants appear to have roots in society. Possibility of tampering with
evidence and threatening the witnesses appears to be remote.
31. In these circumstances, I am impelled to make the order of interim
bail qua the applicants in ABA No.1157 of 2024 also absolute.
32. Hence, the following order :
ORDER
(i) The Applications stand allowed.
(ii) The order of interim bail dated 30 November 2023 in ABA SSP 14/15 6 aba 1156 of 2024.doc No.3328 of 2023 is made absolute on the terms and conditions incorporated therein.
(iii) The order of interim bail dated 30 April 2024 passed in ABA No.1156 of 2024 and 1157 of 2024 is made absolute qua the applicants therein on the terms and conditions incorporated therein.
(iv) The applicants shall henceforth appear before the Investigating Officer as and when directed.
(v) The applicants shall regularly attend the proceedings before the jurisdictional Court.
(vi) Interim Application No.524 of 2024 also stands disposed.
(viii) By way of abundant caution, it is clarified that the observations made hereinabove are confined for the purpose of determination of the entitlement for pre-arrest bail only.
Applications disposed.
( N.J.JAMADAR, J. ) SSP 15/15 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 02/09/2024 20:44:01