1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 32 of 2007 Shri Mahadeo Dinkar Patil .. Applicant versus State of Maharashtra .. Respondent ... Mr.M.A. Choudhari for the applicant. Mr.U.V. Nikam APP for the State. W I T H W I T H W I T H CRIMINAL APPLICATION NO. 95 of 2007 Shri Vilas Krishna Patil .. Applicant versus State of Maharashtra .. Respondent ... Mr.H.E. Palwe for the applicant. Mr.U.V. Nikam APP for the State. W I T H W I T H W I T H CRIMINAL APPLICATION NO. 134 of 2007 Shri Vilas Krishna Patil .. Applicant versus State of Maharashtra .. Respondent ... Mr.S.V. Marvadi for the applicant. Mr.U.V. Nikam APP for the State. W I T H W I T H W I T H 2 CRIMINAL APPLICATION NO. 136 of 2007 Shri Krishnaji Baburao Hujare .. Applicant versus State of Maharashtra .. Respondent ... Mr.S.V. Marvadi for the applicant. Mr.U.V. Nikam APP for the State. CORAM : D.G.KARNIK, J DATED : 16th January 2008 P.C.: 1. Heard learned counsel for the applicants and learned APP for the State. All these applicants arise out of the same crime and hence are being disposed of together. 2. The applicants in each of the aforesaid applications has applied for anticipatory bail u/s.438 of the Code of Criminal Procedure in connection with the offence registered at Kashimira Police station under C.R. No. 274/06 punishable u/s.420, 437, 438, 406, 408, 409, 477, 471, 427 r/w sec.34 of the IPC. 3. All the applicants are employees of Bhogawat 3 Sahakari Sakhar Karkhana Maryadit (hereinafter referred to as ’sugar factory’). The auditor discovered several irregularities and misappropriation of thousands of sugar bags. The Director of Sugar, Maharashtra State, appointed a special Auditor in the matter. On the basis of the report of the Special Auditor, Regional Director of Sugar directed the Special Auditor to file the necessary FIR with the police. Accordingly, the Special Auditor filed the FIR. The police who are conducting the investigation. 4. From the copies of the papers produced before me it appears that 5111 bags of sugar in excess of the sanctioned quota were delivered to the Shetkari Sangh, 5075 bags of sugar were misappropriated during transit. 10,186 bags of sugar are alleged to have been delivered to the members of the sugar factory at concessional rate. Financial loss of more than Rs.73 lakhs was caused to the sugar factory on account of misappropriation of the sugar bags. Seven persons including the applicants are specifically named as persons responsible for the misappropriation in the report of the Special Auditor. 5. Apprehending that applicants would be 4 arrested in pursuance of the FIR, the applicants initially approached the Sessions Court at Kolhapur for anticipatory bail under section 438 of the Code of Criminal Procedure. By a common order dated 30th December 2006, the learned Sessions Judge has rejected the applications. Thereafter the applicants have approached this court for anticipatory bail. 6. Learned counsel for the applicants submitted that Mahadev D. Patil (applicant in Criminal Application no.32 of 2007 and Vilas Krishna Patil ( applicant in Criminal Application no.35 of 2007) at the relevant time were mere clerks and the entire administration of the sugar factory was being managed by the Board of Directors. They were acting in accordance with the orders of the Board of Directors in general and of the Chairman and Managing Director in particular. They are not responsible for the offence of misappropriation. They only obeyed the directions of the Chairman and the Managing Director. Krishna B. Huzare (applicant in Criminal Application no.136 of 2007) and Vilas Dinkar Patil (applicant in Criminal Application no.132 of 2007) were the chief accountants of the sugar factory each for part of the period of the relevant period of 5 years. They also submitted that though they were the chief accountants they also obeyed the orders issued by the Chairman 5 and the Managing Director being the employees working under them. They have not committed any misappropriation but whatever sugar was taken out of the factory was taken out in accordance with the resolutions passed by the Board of Directors or as per the directions of the Chairman and the Managing Director. Therefore, they are not responsible for the misappropriation of the sugar. 7. Counsel for the parties also invited my attention to the various orders passed earlier by this court including the order dated 9th January 2007 passed in Criminal Application no.32 of 2007. The said order is quoted below:- "As per the police themselves 15,339 gunny bags of sugar worth Rs.73 lakhs are alleged to be misappropriated and the FIR has been lodged against six employees of the concerned Sugar Factory i.e. Bhogavati Sahkari Sakhar Karkhana. The senior officers of the said Karkhana like the Managing Director, Stores In-charge and the members of the Managing Committee have not been impleaded as accused and they are undoubtedly more answerable. 6 . I have been assured by the learned APP that the Investigating Officer will take due steps to implead all such persons as the additional accused and file investigation report before this Court within a period of three weeks. . Until the next date the applicant shall not be taken in custody on the condition that he will report to the I.O. every day between 11 a.m. to 4.00 p.m. . S.O. for three weeks. Counsel for the parties submitted that this court was prima facie satisfied that the offence of misappropriation could not have been committed by any of the applicants except with the knowledge of the Chairman and the Managing Director and other Directors of the factory. Counsel submitted that the offence, if any, is committed by the Chairman, the Managing Director and the Board of Directors of the sugar factory and they have merely obeyed their orders. Counsel submitted that the police are 7 protecting the Chairman, the Managing Director and the Board of Directors and have not arrested any of them. Counsel prayed that applicants be granted anticipatory bail and if at all the action is to be taken, it be taken against the Chairman, the Managing Director and other members of the Board of Directors of the sugar factory. 8. Learned APP for the State submitted that the matter is still under investigation. Offence spans over for a period of five years between the years 2000 and 2005. It is necessary to take the applicants in custody for the purpose of custodial investigation. It is only after their custodial investigation that the role of each of accused can be ascertained and fixed. Learned APP assured the court that the Chairman, the Managing Director and the members of the Board of Directors would not be spared, if they are found to be involved in the misappropriation. In fact in the custodial investigation of the present applicants the true facts would come to light and further arrests can be affected by the police after the custodial investigation of the present applicants. 9. Taking into consideration the vastness of the misappropriation of thousands of sugar bags and 8 also taking into consideration that the misappropriation was going for a period of nearly five years some latitude must be given to the police for the purpose of investigation. It cannot be said that the police should have completed investigation forthwith and should have arrested all the concerned. 10. In the facts and circumstances and taking into consideration the gravity and the expanse of e the offence, applicants are not entitled to anticipatory bail at this stage. Hence, all the applications for anticipatory bail are rejected, the applicants are granted two weeks time for surrender. (D.G. KARNIK, J)