1 Cri.Appln.No.596/2011 & ors. IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.596/2011 Shivaji s/o Shyamrao Gawande - APPLICANT VERSUS The State of Maharashtra. - RESPONDENT WITH CRIMINAL APPLICATION NO.701/2011 Bhaskar s/o Kaknaji Govande - APPLICANT VERSUS 1) The State of Maharashtra & another. - RESPONDENTS WITH CRIMINAL APPLICATION NO.687/2011 Rajesh s/o Shankarrao Magare - APPLICANT VERSUS 1) The State of Mah. & Anr. - RESPONDENTS WITH 2 Cri.Appln.No.596/2011 & ors. CRIMINAL APPLICATION NO.625/2011 Bhaskar Pandharinath Lahane - APPLICANT VERSUS The State of Maharashtra. - RESPONDENT ***** S/Shri DM Shinde, Adv. h/for Mr.NN Chitlange; RN Dhorde; ; NS Ghanekar Advocates for respective Applicants; Mr.KS Patil, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 5th April, 2011. PER COURT : 1) Heard finally in all the four Criminal Applications. 2) Applicant – Shivaji Gavande (in Criminal Appln.No. 596/2011), is a Chairman of Shantidoot Pratishtan Dongarkada. Applicant – Bhaskar Lahane (in Cri.Appln.No.625/2011) is a Junior Engineer in Panchayat Samiti, Kalamnuri, Dist. Hingoli; Applicant – Rajesh Magare (in Cri.Appln.No.687/2011) is Sectional Engineer, working since 1995; and applicant – Bhaskar Govande (in Cri.Appln.No.701/2011) was President of Mahatma Phule Seva Bhavi Sanstha, Barad. 3 Cri.Appln.No.596/2011 & ors. 3) First Information Report disclose that a surprise check was carried by Collector, Hingoli in respect of 12 different works in the district and having noticed several irregularities/illegalities, responsible officers were appointed by formulating a Committee, consisting of Additional Collector, Sectional Engineer, 12 Agricultural Assistats, Chief Executive Officer, Zilla Parishad. These officers were authorized to take assistance of others in carrying the survey/inspection including measurements, recording statements. After the preliminary inquiry, having noticed the illegalities/irregularities, withdrawals, wrong measurements causing benefit to individuals, the FIR came to be lodged, one of such FIR is being Crime No.8/2011 of Aakhada Balapur police station, District Hingoli, for an offence under Sections 409, 420, 468, 471 r/w 34 of Indian Penal Code. 4) During the course of submissions, Mr.Ghanekar submits that two Gram Sevaks, namely Shivananda Gholave and Mohammed Saifee, are directed by the learned Sessions Judge, Hingoli, to be released on bail in the event of their arrest. Learned APP submits, State has already taken action for cancellation of such 4 Cri.Appln.No.596/2011 & ors. benefit/bail to these two persons. 5) Mr.Dhorde, learned Counsel, submits in the light of policy of the Government, enunciated way back on 23rd January, 2008, shrinkages are bound to take place and measurements to differ for which, 25% was provided by the Government through its Resolution. According to him, the work was carried three years back and the measurements are subsequently effected. Such difference in measurement is bound to creep in. Consequently, it will not be amounting to any irrational/illegal measurement by the authorities, i.e. Sectional Engineer – Mr. SP Lahane or Mr.Magare, other Sectional Engineer. 6) The learned Counsel submits that the applicant in Criminal Application No.701/2011 was President of Mahatma Phule Seva Bhavi Sanstha, Barad and is not involved in the act of carrying measurements, nor it is complained that he is benefited by any erroneous or illegal measurements. 7) I have gone through the investigation papers; statements of several persons are recorded. One of the Chart produced by learned APP indicates that some concession, in respect of shrinkages or loss owing to time factor, was 5 Cri.Appln.No.596/2011 & ors. considered. The report was not by a single officer, but by Sub Divisional Officer, Basmath; Junior Engineer of B. & C. Deptt; and other three authorities. 8) The applicants – Bhaskar Lahane and Rajesh Magare facilitate joint measurement, signed it. Even if Mr.Ghanekar submits that no measurements were carried by applicant – Rajesh Magare, however, the record rebels. There is categorical admission by applicant – Rajesh Magare that the measurements were carried by same agency and he has simply signed the same. It was an official duty of said applicant – Magare to ensure that the measurements were of the actual work done and then only the amounts are to be released in favour of the contracter, the society. However, no such care was taken. 9) So far as applicant – Bhaskar Govande is concerned, the work was allotted to benefit the said organization – Mahatma Phule Seva Bhavi Sanstha, individual role is played by said applicant, as pointed by officers, even if investigation papers reveal that forged Muster entries were prepared to show labours have worked in the name of fictitious persons, withdrawals are made. 6 Cri.Appln.No.596/2011 & ors. 10) So far as applicant – Shivaji Gawande is concerned, he is named in the F.I.R. to be a mediator, arranging with the officers and villagers, he has facilitated payment of Rs. 40,000/- to few of the villagers, whose lands were adversely affected. However, there was no reason for Government officials to activate through such unauthorised agency/person. 11) Considering above aspects of the matter, prima facie, there is no role of applicant – Shivaji Gawande in the alleged illegalities in measurements and committing misappropriation. It seems, he has not been financially benefited. 12) So far as other applicants are concerned, their reference is quite clear, huge amount of Rs.32,46,282/- has been misappropriated, at least from it, around an amount of Rs.19,00,000/-, is not yet properly accounted for. Several stages of investigation are yet to take its shape, other persons are to be named and their role to be specified. Even if two Gram Sevaks are released by the learned Sessions Judge on anticipatory bail, however, that by itself will not mitigate the responsibility and the role played by these applicants. Consequently, no pre-arrest bail to 7 Cri.Appln.No.596/2011 & ors. the three applicants. Hence, order. (i) Criminal Application No.596/2011 is allowed. In the event of arrest of the applicant/accused – Shivaji Shyamrao Gawande, he be released on his furnishing PR bond and a surety in the sum of Rs.25,000/- (Rupees twenty five thousand). He shall attend the Investigator on every Thursday and Sunday between 11.00 a.m. To 5.00 p.m. till filing of charge sheet. (ii) Criminal Application Nos.701/2011; 687/2011 & 625/2011 are rejected. ( K.U.CHANDIWAL ) JUDGE bdv/