1 Criminal Application No.735/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.735 OF 2011 Ishrat Fatema Ansari & ors. ... APPLICANTS VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Shri M.C. Syed, Advocate for applicants Shri K.M. Suryawanshi, A.P.P. for respondents ..... CORAM : K.U. CHANDIWAL, J. DATE : 9th March, 2011 PER COURT : 1. Heard learned counsel extensively. The accused/ applicants Head Mistress, Chairman and Secretary of Pradnya Surya Shikshan Sanstha and Matasaheb Primary School, Nanded, seek protection in terms of Section 438 of the Criminal Procedure Code in Crime No.13/2011, registered at Vazirabad Police Station, Nanded for offence under Sections 420, 468, 471 read with Section 34 of the Indian Penal Code. 2. The complainant, a Government official, informed on 22.1.2011 that by preparing fake sanction letters, an amount of Rs.1,12,000/- was received by appointing two persons as teachers 2 Criminal Application No.735/2011 in the school. Even the signatures of the Deputy Education Officer Shri M.D. Patil was forged. 3. Counsel for the applicants submits, that since the record itself is lost at the office of Zilla Parishad, Nanded, this responsibility cannot be fastened to the applicants as the officials could not maintain the record and could not keep control thereof. The strength of the teachers was three by virtue of retirement of one Smt. Chandrakalabai on 31.3.2009 and hence Shri Subhash Gade was appointed. Thereafter Rajashree was appointed under approval by Education Officer. The payments are directly credited to the accounts of respective teachers and consequently, nothing is to be recovered from the accused/ applicants, no role could be attributed to the Chairman of the institution as at the most the sanction was from the Head Mistress or the Secretary. 4. Learned A.P.P., while opposing the application, took me to the statement of Shri M.D. Patil, who in unequivocal terms, on being confronted with the disputed documents, mentioned that these documents do not bear his signature and they are manufactured and fake. 5. The beneficiaries in preparation of the documents are the applicants herein. It is a network of the applicants with other 3 Criminal Application No.735/2011 officials in the Zilla Parishad and particularly Education Department. The custodial interrogation of the accused/ applicants will unearth the other associaties in the network associated to dupe the Government by preparing false documents and to withdraw the amount as salary. When there is no sanctioned strength, such documents, even the letter with outward number was prepared. This shows the strength of the power and influence which the accused/ applicants could utilise to get financial gains. 6. Learned counsel for the accused/ applicants relied to the judgment of this Court in the case of Kamlesh s/o Dhirajlal Gandhi Vs. State of Maharashtra & anr. (2007 ALL MR (Cri) 1572), to the judgment of this Court in the case of Sunil Laxman Patil Vs. State of Maharashtra (2007 ALL MR (Cri) 1693), to the judgment in the case of Dr. Suresh G. Motwani Vs. State of Maharashtra & anr. (2003 ALL MR (Cri) 2212). The law on the aspect of exercise of discretion of powers in terms of Section 438 of the Criminal Procedure Code has been declared by the Hon’ble Apex Court in the matter of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & ors. (2010 ALL SCR 2725) and particularly paras 122 and 124 thereof, which read as under : “122. The following factors and parameters can be taken into consideration while dealing with the 4 Criminal Application No.735/2011 anticipatory bail. i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused’s likelihood to repeat similar or the other offences; v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension 5 Criminal Application No.735/2011 of tampering of the witness or apprehension of threat to the complainant. x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.” Hence, the referred judgments would be of no consequence to advance cause of the accused/applicants. 7. Consequently, no case to entertain discretion in terms of Section 438 of the Criminal Procedure Code. Application lacks merits, dismissed. Earlier interim protection is terminated. Observations are prima facie in nature. K.U. CHANDIWAL JUDGE fmp/cri735.11