Hasmukhbhai Vallabhbhai Bera vs State Of Gujarat

Gita Gopi, J

Rule. Ms. Shruti Pathak, learned Additional Public Prosecutor, waives service of notice of rule on behalf of respondent-State.

This application has been preferred under section 438 of the Code of Criminal Procedure seeking anticipatory bail in connection with the first

information report being I-C.R. No. 2 of 2020 registered with ACB Police Station, Jamnagar for the offences punishable under sections 465, 468 and

34 of the Indian Penal Code sections 12, 13(1)(d), 13(2) of the Prevention of Corruption Act, 1988.

Mr. V.H. Kanara, learned advocate for the applicant submitted that the FIR has been lodged on a complaint by one Muljibhai Danabhai Mobhera,

in the said FIR, it is stated that under the scheme of Mahatma Gandhi Swachhata Mission, Nirmal Gujarat Individual Toilet Construction Scheme,

almost about 400 toilets were constructed by the concerned trust/organization and there are allegations of misappropriation of funds leading to the loss

to State Exchequer amounting to Rs.78,800/-. Mr. Kanara, further submitted that the present applicant is retired person and he had to randomly check

10% of total construction of the toilets, and actually, it was the Junior Engineer and Additional Assistant Engineer, who are required to do 100%

supervision in the construction of toilets. The present applicant had to rely upon the receipt of the report and certificate issued by the Junior Engineer

and Additional Assistant Engineer. Mr. Kanara, also submitted that according to the norms of the State Government, the agencies which have

constructed toilets have only been paid 90% of the bills, whereas remaining 10% bill is still in custody of the corporation. Thus, the remaining amount

of more than Rs.2 crores still remains with the corporation and thus, no allegation of misappropriation can be levelled against the agencies. Mr.

Kanara, further submitted that Jamnagar Municipal Corporation has provided a list of 12 Trust/Organization for construction of toilet in the year 2014-

There is gross and unexplained delay in registration of the present FIR as the alleged offence is committed from 2014-15 to 2016-17 whereas the

present FIR came to be lodged on 12.07.2020 and about 63 different agencies were allotted the work of construction of 20 wards. In the year, 2014-

2016, 14,475 toilets and in 2016-2017, 16,182 toilets came to be constructed and the applicant was only responsible to randomly check 10% of total

construction of the toilets and since Rs.2 crores are still pending before the corporation, Mr. Kanara, prayed to grant anticipatory bail to the present

applicant, submitting that Kaushal Vijaybhai Chauhan, Assistant Engineer, was granted anticipatory bail by this Court vide order dated 28.07.2020

passed in Criminal Misc. Application No.10261 of 2020.

Ms. Shruti Pathak, learned Additional Public Prosecutor, relying upon the affidavit-in-reply of Mayurdhavjsinh Mahendrasinh Sarvaiya, Police

Inspector, ACB Police Station, Rajkot City, submitted that it was present applicant who had to undertake the site inspection by visiting at least 10% of

the places out of 100% site inspection and further, to give certificate on construction of the toilets. Further, the applicant was required to make

recommendations and in one of the case, it was noticed that NGO â€" Bhagwati Silk and Zari Khadi Gram Udhyog obtained amount of grant for

toilets construction in the year 2015-16. Thereafter, again the very same institute has placed bills for second time for in all 108 toilets for

Rs.15,12,000/- and out of bills placed second time by NGO, one bill qua which the applicant had issued a certificate dated 22.09.2016, to which, while

verification, it came to the notice that the toilet was already constructed at one Kantibhai Parmar's place in the year 2014-15. Hence, the certificate

came to be issued was without any actual verification.

Heard the learned advocates for the parties and perused the material on record. The total amount would be ranging from 2014-15, 2015-16 and

2016-17, it is admitted fact that the present applicant had to visit only 10% of the actual sites out of 100% inspection was carried out by Additional

Assistance Engineer and on the basis of their site inspection and report, certificates were to be issued. The fact of NGO is stated in the affidavit-in-

reply and the alleged misappropriation is in the case of this said NGO who are made accused. Taking into consideration role attributed to the applicant

and the duty of the applicant, the scale of work undertaken, discretion is required to be exercised in favour of the present applicant.

This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs.

State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution

Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565.

In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with the first

information report being I- C.R. No. 2 of 2020 registered with ACB Police Station, Jamnagaron executing a personal bond of Rs.10,000/- (Rupees

Ten Thousand Only) with one surety of like amount on the following conditions:

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 10.08.2020 between 11.00 a.m. and 2.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him

from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till

the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial

court within a week; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would

decide it on merits;

Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicant. The

applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be

directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of

the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if,

ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even

if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this

anticipatory bail order.

At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Rule is made

absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email

forthwith.