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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION NO.1866 OF 2009.
APPLICANTS: 1. Abhijit Keshavrao Gavhankar, aged about 48
years, Occupation: under suspension, presently in
custody, resident of Vivekanand Colony,
Umarkhed, District: Yavatmal.
2. Sakharam S/o Shivram Wankhede (Wankhede),
R/o Sukhali, Tahsil Umarkhed, District:Yavatmal.
-VERSUS-
NON APPLICANT: State of Maharashtra, through its P.I., C.I.D.,
Yavatmal.
Shri Anil Mardikar Advocate for the applicants.
Shri Y.B.Mandpe, APP for the State.
CRIMINAL APPLICATION NO.1962 OF 2009.
APPLICANT: Godhaji S/o Bhagwanrao Gore, aged about 45
yea4rs, Occ:Government Service, R/o Umarkhed,
District Yavatmal.
-VERSUS-
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NON APPLICANT: State of Maharashtra, thr. P.S.O. Mahagaon, Dist.
Yavatmal.
Shri , Anil Mardikar Advocate for the applicants.
Shri Y.B.Mandpe, APP for the State.
CRIMINAL APPLICATION NO.1963 OF 2009.
APPLICANT: Hiralal S/o Gangaprasad Jaiswal, aged about 48
years, Occupation-Government Service, R/o
Mahagaon, District Yavatmal.
-VERSUS-
NON APPLICANT: State of Maharashtra, through P.S.O. Mahagaon,
Distt. Yavatmal.
Shri M. M. Shesh, Advocate for the applicants.
Shri Y.B.Mandpe, APP for the State.
CRIMINAL APPLICATION NO.2044 OF 2009.
APPLICANT: Arun S/o Marotroa Patil, aged about 60 years,
Occupation-Retired Government Servant, R/o
Laxminagar, Borgadi, Tahsil Pusad, District
Yavatmal (in Yavatmal Jail).
-VERSUS-
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NON APPLICANT: State of Maharashtra, through its C. I. D.,
Yavatmal, District Yavatmal.
Shri R. M. Patwardhan, Advocate for the applicant.
Shri Y.B.Mandpe, APP for the State.
=======================================================
CORAM: S.R.DONGAONKAR, J.
DATED : 18th JULY 2009.
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COMMON ORDER :
1] By these applications, the applicants are claiming bail under
Section 439 of Cr. P. C. These applicants have been arrested for the offences
under Section 420, 467, 468, 471, 472 read with section 34 of Indian Penal
Code and also under Section 3 and 7 of the Essential Commodities Act
arising out of Crime No.104/2007 of Police Station, Mahagaon.
2] The applicants are government officials working in District
Supply Department at Yavatmal. The offences are relating to the popularly
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known kerosene scam. It is alleged that the applicants had shown
exaggerated figures of the population and got sanctioned more kerosene
quota for Mahagaon Taluka of Yavatmal District, through District Supply
Office, Yavatmal. Said quota of kerosene was in turn released to the
wholesalers who thereafter released the same to semi-wholesalers and the
retailers. The last end of this chain is that of retailers and licenced hawker’s
who had distributed kerosene, which is stated to be an essential commodity.
It is alleged that because large quantity of kerosene was sought to be released
by showing illegal enhancement in the population figure, the kerosene to the
extent of some thousand kiloliters was sold in open market, some of it was
sold in the black market from the period January 2003 to April 2006. It is
alleged that because of this loss was caused to the Government to the extent
of Rs.3,73,50,800/-. In the act of commission of these offences, the aforesaid
accused persons committed cheating to the government by fabricating
documents, submitting false notes of demands, and thereby caused loss to the
government.
3] When the offences were registered, the aforesaid
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accused/applicants, so also the other persons preferred an applications for
grant of anticipatory bail. Some of the accused were released by the trial
Court. The matter was also considered by this Court and orders of pre-arrest
bails were passed.
4] This order was passed by this Court on 30-4-2008. Later on,
said order was challenged by the respondent before Apex Court. In the
special leave petition, the Apex Court has passed following order:
“Taken on Board.
Exemption allowed.
Issue notice on the applications for condonation of delay
as also on the special leave petitions.Until further orders, operation of the impugned order
shall remain stayed.”
5] As the aforesaid order dated 30.4.2008 of this Court was
stayed, the present applicants came to be arrested on 19.3.2009. The
respondents had carried out some investigation after the passing of the order
of anticipatory bail by this Court. Thereafter, as the applicants were taken
into custody, some another investigation was done. The charge sheet, against
the present applicants, as they were in custody, seems to have been filed on
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612.6.2009. This charge sheet appears to have been filed because the period
of 90 days, was to expire after the arrest of the present applicants. It is
necessary to note that so far no charge sheet is filed against the other accused
who either have been released on bail by this Court or by the Sessions Court.
It is necessary to state that even now respondent is unable to state as to when
the investigation against these accused would be completed and the charge
sheet would be filed. In the back drop of these circumstances, the
applications of the present applicants need to be considered for the purpose of
grant of bail.
6] Preliminary objection raised by the respondent to these
applications is that these applications were preferred before filing of the
charge sheet and as now the charge sheet has been filed, then applicants
should be ordered to move the Court of Judicial Magistrate First Class, or
Sessions Court for grant of bail first as there is a change of circumstances, in
pursuance to the judgment of this Court reported in 2004 All MR (Cri) 3073
Laxman Vs. State of Mah.
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77] According to learned APP it is proper on the part of the
applicants to move the trial Court particularly Sessions Court for grant of bail
as the charge sheet has been now filed. In a way, it is the submission of the
learned APP that this court should not consider the bail applications of these
applicants, in view of the said judgment.
8] In order to appreciate this contention, it is necessary to
closely peruse the provisions of section 439 of Criminal Procedure Code
which read thus:
“439. Special powers of High Court or Court of
Sessions regarding bail-(1) A High Court or Court of Session may direct-
(a) that any person accused of any offence
and in custody be released on bail, and ifthe offence is of the nature specified in
sub-section (3) of section 427, may
imposed any condition which it considers
necessary for the purposes mentioned inthat sub-section;
(b) that any condition imposed by a
Magistrate when releasing any person on
bail be set aside or modified:
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Provided that the High Court or the Court of
Session shall, before granting bail to a person who
is accused of an offence which is triable exclusivelyby the Court of Sessions or which, though not so
triable, is punishable with imprisonment for life,give notice of the application for bail to the Public
Prosecutor unless it is for reasons to be recorded in
writing of opinion that it is practicable to give suchnotice.
(2) A High Court or Court of Session may direct
that any person who has been released on bailunder this Chapter be arrested and commit
him to custody”.
9] It would be apparent that the High Court and the Sessions
Court, have plenary powers in respect of the subject of grant of bail. Though
normally such matter needs to be considered by the Court of Sessions first,
that fact by itself will not preclude the Courts of superior jurisdiction from
considering such applications, more particularly, in the present case, High
Court while exercising special powers conferred on the High Court under
section 439 of Cr. P. C. Here is the case where the applications for bail of
the applicants are already rejected by the Additional Sessions Judge, Pusad
by the order dated 30-4-2009 with the following observations:
“5. I have heard the learned Counsels appearing for
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9the petitioners and learned APP. On going through
the crime papers and the say, it is clear that the matter
involves a scam in which so many officers of higherrank and those working on lower posts were involved.
It cannot be accepted for a moment that the petitionerclerks bonafidely prepared the list for the proposal for
demand of the quota and the officers blindly signed
them not knowing about the deceit and fraudulentintention. It is alleged that after the offences came to
be registered more than 14 ration cards came to be
cancelled. The demand of kerosene which rose upto
450 K.L. was reduced to 252 K.L. which was thedemand made earlier as per the record. This is not
then case in which one or two officers were involved incommission of misappropriation and the offence has
no serious ramifications on the people at large. Inthat case, the court can think of release of accused on
the bail. In that case, the court can think of release of
accused on the bail. In the instant case, the
responsible Revenue Officers, some of whom workingas Class-I Officers, were involved in commission of
the misappropriation by way of sale of kerosene in
black marketing. The release of the petitioners, when
six accused are still absconding, would not be proper.
In the say, names of these accused are given as ArunDhobale, Sahebrao Kamble, Kamruddin Gajiyani,
Govind Kubade, Bhatgwat Saidane and Bhagwan
Narvade. From the facts of the case, it is prima facie
shown that the allegations against the petitioners arewell founded and they acted with ill intention and they
defrauded the government authority.
6] The learned Counsel for petitioners have cited
some cases, [1] Sunil Vs State of Maharashtra 2004
ALL Mr (Cri) 433, [2] Babanrao V State of::: Downloaded on – 09/06/2013 14:41:21 :::
10Maharashtra, 2006 ALL MR (Cri) 2655 (S.C.) [3] Dr.
Jagannath Mishra Vs. C.V.I. (1998) 9 Supreme Court
Cases 611 [4] State of Rajasthan Vs. Balchand, 1978Cri. L. J. 195. I have read the reported cases. These
cases are different from the instant case. Therefore, theratio laid down in these cases cannot be applied and
they do not help the petitioners. I am of the opinion
that when the investigation is still pending and someof the accused who had played important part in
commission of crime, are absconding, the release of
petitioners would not be in the interest of
investigation. Hence, I am constrained to reject theseapplications.”
10] He has thus observed that from the facts of the case, it is
prima facie shown that the allegations against the applicants are well founded
and they acted with ill intention and they defrauded the government authority.
Therefore, the Sessions Judge has formed an opinion against the present
applicants as regards the substantiation of the allegations against them, even
before the presentation of the charge sheet. The charge sheet is only the
formal expression of the conclusion drawn by the investigating authorities
and a report submitted to the concerned Court for starting proceedings
against the accused. Therefore, as rightly submitted by the learned Counsel
for the applicants, no useful purpose would be served in again asking the
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applicants to approach to the Court of J.M.F.C. or to the Sessions Court for
the purpose of bail, only to fulfill a ritual of going to the court of lowest
jurisdiction. They are further perhaps right in submission that the learned
J.M.F.C. or the Sessions Judge would not take any different view, than the
Sessions Judge has already taken by his order dated 30-4-2009.
11] Apart from this, the learned APP for respondent, can
definitely contest the matter on merits, here, also. No doubt, if the applicants
want to approach to the trial Court for bail of their own, that would have been
a welcome exercise for them, this Court, would have been benefited to have
the view of the lower courts on the issue. But as the applicants feel that
lower courts may not take different view than what was already taken They
would like to pursue this matter, in my opinion, as the High Court is the
Court having omnibus jurisdiction on this matter, cannot shut its doors, when
the parties want relief from this Court. Decision reported in 2004 ALL MR
(Cri) 3073 Laxman Vs. State of Mah is clearly distinguishable on facts. It
was on the point as to whether filing of charge sheet is a substantial charge in
circumstances, so as to enable same Court to consider bail application again.
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12] Before proceeding further in the matter, it is necessary to
take stock of the case. There are in all 48 accused in the matter. One of them
is dead. Out of 47 accused except 18 persons, rest of the persons are retailers
or the hawkers who are as stated above, are the last link in the chain of the
accused and are released on anticipatory bail by the Sessions Court. Six
accused are stated to be absconding. Three have been stated to be arrested
and released by this Court on bail. Rest of them i.e. 6 including these five
applicants were arrested by the respondents after the interim order of the
Apex Court passed in the S.L.P. regarding staying the order of this Court
dated 30-4-2008 and therefore, only these applicants are before this Court,
five in the present applications and one before the other bench of this Court,
who are claiming bail.
13] Turning to the merits of the case, it is necessary to note the
submission of the learned Counsel for the applicants. They submit that while
considering the applications of grant of anticipatory bail by this Court, it was
found that allegations against the applicants can be at the most of negligence
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in official duties. According to them, even after the arrest of the applicants,
no investigation was done. Even after seeking police custody or magisterial
custody for a considerable long time, except taking of specimen signatures,
nothing was done. The charge sheet is filed only to keep the applicants in jail
as the statutory period of 90 days was to be over. According to them
observations of this court in the order dated 30-4-2008, still, prevail as they
are not stayed by the Apex Court and therefore, it was the duty of the
respondents to submit the satisfactory answers to the queries raised in that
order. According to them there was no valid material collected by the I.O. to
substantiate the charge against the applicants. According to them reply filed
by the respondent to these applications, does not show the clinching evidence
collected against all or any of the applicants. In fact, the allegations are of
most general nature, without attributing any special act of the offence against
any of the applicants. It is the submission of the learned Counsel for the
applicants that the offences are triable by the Magistrate and as the none other
accused has been arrested so far, nor any charge sheet is filed against them,
the trial of the present accused in no case can be held in near future. Thus,
for all these reasons, applicants would be entitled for bail according to the
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learned Counsel.
14] As against this, the learned APP Shri Mandpe has submitted
that the case against the applicants in the charge sheet has been substantiated
by suitable evidence on record. As they have committed offences, they are
not entitled for bail as some of the offences are punishable by imprisonment
for life. Further according to them though the allegations against them in
reply are general in nature still they are substantiated by the evidence on
record and therefore, they would be liable for rejection of the bail. According
to him, though the trial may not be within sight, that fact by itself will not
entitle the applicants for bail, more particularly because the Hon. Apex Court
has stayed the operation of this Court’s order regarding grant of anticipatory
bail, which was passed on the basis that material collected by Investigating
authority was not sufficient to point out the guilt of applicants and main
possible culprits were released on bail.
15] He has further contended that, if necessary, the trial of these
accused can be separated and the same can be proceeded on merits.
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16] It goes without saying that no substantial investigation appears to
be done after the order of this Court dated 30.4.2008 and even after arrest of
the applicants, in pursuance of the order of the Apex Court except taking the
specimen signatures of the applicant.
17] The Apex Court has passed an order to stay the operation of
the order of this Court (dated 30-4-2008, reported in 2008 (Cri) 1849 Arun
S/o Marotrao Patil Vs. State of Maharashtra.) Some of the observations
of this Court in that order need to be noted.
23. With these observations about the working of
District Supply Office and other Offices in Yavatmal
District, it is difficult to say that such types of affairs
may not be in other talukas. No doubt, the original writ
petition was restricted to the illegalities or irregularities
committed in the distribution of kerosene in Mahagaon
Taluka, but the fact remains that when such illegalities
or irregularities were noticed in the District Supply
Office, in my opinion, it was duty of the concerned
authorities not to be satisfied with inquiry in Mahagaon
taluka only, but to get it confirmed that no such
illegalities and irregularities are committed in other
talukas of Yavatmal district and for that matter other
districts of Maharashtra.
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………
29. Needles to state that even in the inquiry conducted
by the Divisional Commissioner, there was no criminal
intention attributed to the present applicants except
saying that they had taken part in the process with full
knowledge. Nowhere there was allegation taht these
applicants were benefited by the sale of kerosene, rather
illegal sale of kerosene in the black market. The
possibility of their being acting perfunctorily without
any criminal intention cannot be overruled. A judicial
notice of the fact that many a times routine proposals are
submitted without actual verifidation of the
requirements, can be taken.
ig Therefore, in such
circumstances, there should have been a clear
connective material to show that all the applicants
(officials) or any of them had any mens rea in submitting
a false proposal for excess quota of kerosene to get the
same distributed through their acquainted retailers and
get benefited out of that. Here it is not a case that all
these officials were somewhere or the other connected
with the retailers i.e. who were the persons in the last
rung having direct duty of distribution of kerosene to the
card holders & card holders only. Though general
allegations are made, there appears to be no specific
statement of the persons either saying that they have not
received the kerosene through they had cards or they
had in fact received the kerosene in black market. There
is also no specific evidence to show that the kerosene
was being distributed without any entitlement through
the cards.
30. Why this is important to note, is the fact that the
kerosene in the present case which was allegedly
distributed in excess quantity is in such a large quantity,
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that unless there is evidence on record, it is difficult to
comprehend that all this kerosene would have been sold
in black market without there being any complaints.
Possibility of such use by some persons in large quantity
is also not shown. In my opinion, therefore, when
considerable time was lapsed, after registration of
offence, during the pendency of these applications, it
would have been benefiting to the investigation agency
to collect such evidence and produce it before the Court
to show that such a large quantity of kerosene could
have been sold in th4e black market with the aid of the
retailers and for that matter, even by semi-wholesalers.
31. As such it appears that the prosecution has failed
to produce any sufficient material on record to show that
except dereliction of their duties, there can be any
criminal intention in them to commit the offence to
ultimately have some gain out of the sale of said
kerosene in the black market.
…………
37. In my view, the offences in the present case could
not have been committed except with the active support
of the retailers, semi-wholesalers and wholesalers. Even
if, excess quota of kerosene wrongly or rightly is
released to any wholesaler, even for the sake of
argument it is assumed that the same was released
because of false or wrong submissions as the said
kerosene was to be distributed only to the card holders
and that too by maintaining record, the maximum part in
the offence would have been committed by the retailers.
It is apparent that, except this semi-wholesaler, all other
concerned persons have been either released on bail or
on anticipatory bail. I have already pointed out above
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that there is no move by the respondent to get those bails
cancelled. In such circumstances, this applicant would
call treatment in similar way.
18] What is the effect of the stay order granted by the Apex Court has
important bearing on the subject matter of these applications. It is observed
by the Apex Court that until further orders the operation of the impugned
order shall remain stayed. Learned counsel for the applicants have contended
that this stay cannot be interpreted to be a stay to the observations made by
this court in the aforesaid order of granting anticipatory bail to the applicants.
It can be interpreted only to mean that only the anticipatory bail of the
applicants has been stayed and therefore, they can be arrested for the
purposes of investigation etc.
19] In my opinion, it is not possible to accept such interpretation
inasmuch as the final order of anticipatory bail was passed for the reasons
recorded in the said order. When, after hearing, the Apex Court stays the
operation of the impugned order, it would mean all the observations therein
cannot be considered for the purposes of deciding further bail matters on
merits on the same material. It has to be presumed that the legality and
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validity and sustainability of the impugned order was considered by the Apex
Court and therefore, the operation of the impugned order was stayed. In this
view of the matter, the contention of the learned counsel for the applicants
that some of the observations referred above in the earlier order granting
anticipatory bail to the applicants should be considered, can not be
countenanced. Therefore, in my opinion, the applicants cannot rely on the
observations in that order to contend that no prima facie case has been made
out out against the applicants. Therefore, now the merits of the applications
have to be considered.
20] In the present case now charge sheet has been filed against the
present applicants. The matter as stated by learned counsel for the respondent
is for further investigation in respect of other accused as well as for filing
charge sheet against them which includes the other government officers,
wholesalers, semi-wholesalers, and retailers.
21] Reply of the respondent State to these applications clearly point
out the evidence collected against the applicants.
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22] As regards the accused No.1 – Loknath Tandil [he is not applicant
before this court] the following is the submission :-
“Accused no.1 was holding the charge for the period
come to 24-1-2003 till 30-4-2006 during the said period
the applicant accused No.1 with collusion of other co-
accused had increased the population of the villageMahagaon by taking false entries and also taken false
entries regarding ration card holders. The present
applicant/accused No.1 in order to get excess quota of
kerosene had submitted a false demand before theGovernment by increasing entries Ration Card holders.
The applicant has not maintained or inspected therecord of semi-whole-seller and retailers and in this way
the applicant cheated the Government and committed anoffences.”
23] As regards accused no.2 Shivram Sakharam Wankhade, Supply
Inspector, following is the submission :
“Regarding accused No.2 Sakharam Shivram
Wankhade, Supply Inspector who was posted from
3.8.2004 till 21-11-2007 the accused No.2 withcollusion of accused No.1 and other accused persons
had demanded excess amount of kerosene and that
there was no demand by whole-seller. This applicant
has placed excess demand of kerosene for Mahagaon
Tahsil. The applicant has also not maintained the
register as per require rules. This applicant has::: Downloaded on – 09/06/2013 14:41:21 :::
21prepared false unit and fabricated the list thereby had
caused the Government great loss. The evidence
collected against the present applicant. That theapplicant has prepared false statistical data regarding
population of village Mahagaon and also had takenfalse entries in unit register. The said document is at
page No.160, 183 of the charge sheet. The documents
at page No.52 to 142 also discloses that the applicanthas not maintained any register regarding the supply of
kerosene to the whole seller or semi whole-seller nor
the applicant had inspected the register with were
required to be inspected from time to time and thusapplicant had committed an offence. The applicant
had also submitted false report to the Government thiscan be gathered from page No.143,144 and 145 of the
charge sheet. The prosecution witness AmbadasLokhande Statistical Department discloses the same
thing at page No.290. The applicant had placed excess
department of kerosene and obtained signature of
Tahsildar and the same find placed at page No.312 ofthe charge sheet. The prosecution witnesses Subhash
Bedarkar, Kirankumar Waikos and Bhanudas
Nandanwar had also confirmed that the applicant has
not maintained the inspection report or had not taken
entries as per require rules and has prepared falsedocuments. The said document is at page No.
177,284,286 and 288 of the charge sheet.
The co-accused Jairam Natthuji Rawate
Proprietor Salim Trading Company, Sau. Sindhu
Sanjay Bhagat, Anandrao Narayan Kund and R. J.
Gulfulwar were given false entries in their stock
register by the present applicant. The applicant
without inspecting their stock register has given
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22defective. The applicant has also not maintained the
kerosene distributed by the co-accused who are
retailers and thereby committed the offence. The saiddocument is at page No.170 and 176. The applicant
had also not maintained or inspected the kerosenesupply by retailers, semi whole seller and had prepared
a false documents, then said documents is at page No.
206 to 209 and page No.241 of the charge sheet.
24] As regards applicant in Criminal application no.2044/2009 Arun
Patil, following are the submissions:-
“So far as the accused No.3 Arun Marotrao Patil he
was holding the charge of Inspecting Officer for the
period 26-9-2002 to 132-8-2004 at the relevant timeAccused No.1 was holding the charge for the period
come tom 24-1-2003 till 30-4-2006 during the said
period the applicant accused No.1 with collusion ofother co-accused had increased the population of the
village Mahagaon by taking false entries and alsotaken false entries regarding ration card holders. The
present applicant/accused no.1 in order to get excess
quota of kerosene had submitted a false demand beforethe Government by increasing entries Ration Card
holders. The applicant has not maintained or inspected
the record of semi-whole-seller and retailers and in this
way the applicant cheated the Government and
committed the offences.”
25] As regards accused no.4 Abhijit Gavankar, Senior Clerk following
are the allegations from the charge sheet :-
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“So far as the accused No.4 Abhijit Keshavrao
Gavhankar as Senior Clerk for a period 7.2.2004 to
11.4.2004 and again for the period from February2005 to October, 2005 and again from February 2006
till 30-8-2007 during this period the present applicantin collusion with other co-accused had exceeded the
unit register and shown much population and also had
shown excess card holders by taking false entries andthis point had placed excess department of quota for
kerosene for Mahagaon tahsil and thus has committed
an offence. Accused No.1 was holding the charge for
the period come to 24-1-2003 till 30-4-2006 during thesaid period the applicant accused No.1 with collusion
of other co-accused had increased the population ofthe village Mahagaon by taking false entries and also
taken false entries regarding ration card holders. Thepresent applicant/accused No.1 in order to get excess
quota of kerosene had submitted a false demand before
the Government by increasing entries Ration Card
holders. The applicant has not maintained orinspected the record of semi-whole-seller and retailers
and in this way the applicant cheated the Government
and committed the offences.”
26] Accused No.5 Hiralal Jaiswal in criminal application no.
1962/2009, the submissions are thus:-
“So far as the accused no.5 Hiralal Gangaprasad
Jaiswal is concerned he was appointed as Junior Clerk
for the period 4.12.2003 to 21.5.2004 and in collusion
with accused No.4 and other accused persons had also
prepared false unit register showing excess population
and excess card holders in order to get excess quota of::: Downloaded on – 09/06/2013 14:41:21 :::
24kerosene. Accused no.1 was holding the charge for the
period come to 24.1.2003 till 30.4.2006 during the
said period the applicant accused No.1 with collusionof other co-accused had increased the population of
the village Mahagaon by taking false entries and alsotaken false entries regarding ration card holders. The
present applicant/accused No.1 in order to get excess
quota of kerosene had submitted a false demand beforethe Government by increasing entries Ration Card
holders. The applicant has not maintained or inspected
the record of semi-whole-seller and retailers and in
this way the applicant cheated the Government andcommitted the offences.
The applicant has collected the documents
regarding the excess demand which is at page No.160of the charge sheet the false entries which were taken
by the applicant is at page 183 of the charge sheet,
there was also irregularities found during the
inspection regarding the supply of kerosene toMahagaon Tahsil. The said document is filed at page
No.52 to 142 of the charge sheet. The accused Nos. 4
to 6 had also increase the population and shown
excess card holders in order to get excess quota then
required for Mahagaon Tahsil. The said documents isat page NO.144 to 145 of the charge sheet. The data
collected from the Statistical Department Yavatmal and
the statement of Shri Ambadas Lokhande, District
Statistical Officer is at page No.290.”
27] As regards the accused no.6 Godaji Bhagwan Gore in Criminal
Application no.1963, the following are the contentions in paragraph 13:-
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25
“So far as the accused No.6 Godaji Bhagwan Gore is
concerned, he was also appointed as Jr. Clerk for the
period from 7.3.2003 to 15.9.2003 and in collusionwith other accused persons has created false and
bogus population register and had taken wrong entriesof population and card holders nor placed excess
demand of kerosene for Mahagaon tahsil. Accused
No.1 was holding the charge for the period come to24.1.2003 till 30.4.2005 during the said period the
applicant accused No.1 with collusion of other co-
accused had increased the population of the village
Mahagaon by taking false entries and also taken falseentries regarding ration card holders. The present
applicant/accused No.1 in order to get excess quota ofkerosene had submitted a false demand before the
Government by increasing entries Ration Cardholders. The applicant has not maintained or
inspected the record of semi-whole-seller and retailers
and in this way the applicant cheated the Government
and committed the offences.
The applicant has collected the documents
regarding the excess demand which is at page No.160
of the charge sheet the false entries which were taken
by the applicant is at page 183 of the charge sheet,there was also irregularities found during the
inspection regarding the supply of kerosene to
Mahagaon Tahsil. The said documents is filed at page
No.52 to 142 of the charge sheet. The accused Nos. 4to 6 had also increase the population and shown
excess card holders in order to get excess quota then
required for Mahagaon Tahsil. The said documents is
at page No.144 to 145 of the charge sheet. The data
collected from the Statistical Department Yhavatmal
and the statement of Shri Ambadas Lokhande, District::: Downloaded on – 09/06/2013 14:41:21 :::
26Statistical Officer is at page No.290.”
28] It is a case of the respondent that these accused who are applicants
before the court now; were responsible for committing such a fraud.
29] Learned counsel for the applicants, relying on the observations of
the earlier order of this court, which is subject matter of challenge before the
Apex Court have contended that the offences committed by them are not
made out from the evidence that was collected at the time when the
anticipatory bail applications were decided. Further according to them, even
after the arrest of the present applicants in pursuance to the orders of the
Apex Court, no evidence could be collected. Only investigation that is done
is, to collect the specimen of handwriting of the accused, which is quite
surprising, particularly when the principal claim of respondent before the
Apex Court was that, “for investigation the custody of the applicants was
necessary”. In fact they could have collected clinching material after police
custody remand and magisterial custody remand of the applicants was
obtained.
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27
30] It is further contended that, leave that apart, even now the
respondent State is unable to arrest the other accused in respect of whom the
stay order of the Hon. Apex Court is operating and it does not seem that they
are likely to be arrested in near future. According to them, main culprits, the
retailers, who had sold the kerosene possibly to the persons who were not
having ration cards, are released on bail and therefore, these applicants
would be entitled for the bail. They took me through various observations of
this court in the order dated 30.4.2008.
31] I have already pointed out that the effect of the order of the Apex
Court, while granting stay to the order passed by this court is that even the
observations therein now could not be relied upon by the applicants.
Therefore, in my opinion, it cannot be held that any case is made out against
applicants. The respondents “on affidavit”, have pointed out what evidence
they have collected and how the case against the applicants is made out. It
goes without saying the allegations against the applicants cannot be equated
with that of the retailers. Had the applicants been particular in doing their
duties, perhaps such offences would not have been committed. Considering
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28
the penalty for the offences involved in this case, though prima facie
offences are triable by the court of J.M.F.C., the matter can be transferred to
the court of C.J.M. for seeking enhanced punishment. In my opinion,
therefore, unless the trial court finds that no severe punishment can be
imposed or invited, applicants would not be entitled for bail considering the
impact of the order of stay, to the order of this court, passed by the Apex
Court.
32] Learned counsel for the applicants have further contended that the
trial of the applicants cannot be held in near future as investigation is
incomplete and other accused are yet to be arrested, but that would not entitle
the applicants for bail. As such the trial Court can be directed to expedite the
trial and consider the bail applications, if filed by the applicants, if the trial
can not be held for any reason, expeditiously.
33] The applicants if they feel that no offence is made out against
them, they would be entitled to file applications for discharge before the trial
court. Merely because other accused are not arrested and some other accused
are released on bail, that fact by itself, would not be sufficient to exercise the
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29
discretion in favour of the applicants. No doubt, the applicants can not be
kept indefinitely in jail if the trial is not insight i. e. not possible to hold the
same in near future. In my opinion, trial court, if necessary can start the trial
of the applicants for the purposes of expeditious trial, as the charge sheet is
already filed.
34] In this view of the matter, these applications cannot be granted.
However, applicants shall be at liberty to move for grant of bail, if the trial
does not commence within 3 months from today. As already observed, the
applicants would be at liberty to move for discharge, if they so desire,
35] Applications stand disposed of.
JUDGE
//SM PANDE//
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