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CR.MA/3550/2010 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3550 of 2010
=========================================================
DIPAKKUMAR
RAJARAM KHANNA, ADDITIONAL ASSISTANT ENGINEER - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
VIJAY H PATEL for MR VM PANCHOLI
for
Applicant(s) : 1,
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 applicant who is apprehending his arrest in
connection with CR No. I 9 of 2010 registered at Sojitra Police
Station for the offence punishable under Sections 409, 467, 471 and
114 of the IPC.
2. Mr
Vijay H Patel for Mr VM Pancholi, learned advocate for the applicant
submitted that it is alleged in the FIR that during the financial
year 2005-06, 15% discretionary grant was sanctioned for certain
development work. However, even though the work was not performed,
Rs.76,062/- was withdrawn and the payment
was made to the contractor on the basis of the forged
record. As the FIR is filed in respect of the aforesaid offence, the
applicant apprehends his arrest. It is submitted by the learned
advocate for the applicant that there is gross delay of more than
four years in filing the FIR and there is no explanation in the FIR
for the delay and therefore, on this count alone, the applicant
deserves to be granted anticipatory bail. Learned advocate for the
applicant submitted that in respect of the incident/ transaction
which is referred to in the FIR, the concerned department under which
the applicant is working has already issued the departmental
charge-sheet on 24.3.2008. In the departmental proceedings, the
disciplinary authority passed the order on 17.12.2008 and held that
the applicant was careless and negligent in performance of his duty
and therefore, penalty of stoppage of one annual increment for a
period of one year without future effect was imposed on him. Learned
advocate for the applicant submitted that thus, considering the
aforesaid aspects, the applicant at the most can be said to be
negligent in performing his duty and as the applicant has not been
involved in the offence punishable under Sections 409, 467, 471
and 114 of the IPC, the prayer as set out in the application be
granted.
3. Mr
DC Sejpal, learned APP for the State, while opposing the bail
application, submitted that the applicant is involved in the
commission of offence
punishable under Sections 409, 467, 471 and 114 of the IPC along with
the other accused. The discretionary grant which was sanctioned for
certain development work in the year 2005-06 was sanctioned by the
department and even though the work was not performed, the amount of
Rs.76,062/- was withdrawn and the payment was made to the contractor
on the basis of the forged record and this fact is clearly reflected
in the police papers and the material on record of the case and
therefore, the learned APP submitted that no discretionary relief be
granted to the applicant and the application deserves to be rejected.
4. I
have heard Mr Vijay H Patel for Mr VM Pancholi, learned advocate for
the applicant and Mr DC Sejpal, learned APP for the State at length
and in great detail. I have perused the role attributed to the
applicant as reflected in the FIR as well as police papers and
other materials which is placed for my perusal. On perusal of the
same, it becomes clear that during the financial year 2005-06, the
grant was sanctioned for the development work. Even though the work
was not performed and the amount to the tune of Rs.76,062/- was
withdrawn and the payment was made to the contractor on the basis of
certain forged documents. It is evident on perusal of the record of
the case that the applicant was prima facie involved in the
commission of offence punishable under Sections 409, 467, 471 and 114
of the IPC. It has been strenuously urged by the learned advocate on
behalf of the applicant that with regard to the incident in question,
the departmental inquiry was held and he has been sufficiently
punished by the department. However, Special Civil Application
No.3576 of 2009 came to be filed in the High Court and in pursuance
of the same, the complaint came to be filed and therefore, it cannot
be said that the delay was caused in filing the FIR in the present
case. Be that as it may, on perusal of the FIR as well as the police
papers and the material which is placed for my perusal by the learned
APP, I am of the view that prima facie case is made out against the
applicant indicating his involvement in the offence. When
the prima facie case is made out against the applicant, the applicant
in my view is not entitled to claim the discretionary relief as
prayed for in the application while exercising the powers under
Section 438 of the Code of Criminal Procedure.
5. For the foregoing
reasons, there is no merit in the application and it is hereby
rejected. Rule is discharged.
[H.B.ANTANI,
J.]
mrpandya
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