1 CR.APL NOS.3527/2010, 3612/2010, 3625/2010, 3668/2010 AND 3858/2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APLN NO.3527/2010 (Balaji Babruvan Bangar Vs. State) WITH 3612/2010 ( Smt.Subhadra Baburao Sherkhane vs. State) 3625/2010 ( (Smt.Jyoti Sarjerao Patil Vs. State) 3668/2010 (Satish Dnyanoba Ban Vs. State) , 3858/2010 (Sanjay Mahadeo Harke Vs. State) -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. V.D.Salunke, Mr. S.G.Dodya, Mr. S.J.Salunke, - Mr.S.S.Jadhavar, Mr.Khivasara, Advocates for respective applicants. Mr. K.S.Patil, APP for State. ... CORAM: K.U.CHANDIWAL, J. DATE: 22-2-2011 1. Heard Counsel extensively. The accused/applicant Balaji (Application No.3527/2010) is Sarpanch of village Panchayat Bangarwadi. The applicant Sanjay ( Application No.3858/2010) is a Draftsman in the office of the Panchayat Samiti, Kallam. The applicant Smt.Subhadra (Application No.3612/2010) is Block Development Officer since 11.12.2008, she handled the project in question. 2 CR.APL NOS.3527/2010, 3612/2010, 3625/2010, 3668/2010 AND 3858/2010 Smt. Jyoti Sarjerao Patil ( Application No.3626/2010) is Gram Sevika at village Panchayat, Bangarwadi From April, 2005 till 26.8.2010. Applicant Satish Ban ( Application No.3668/2010) was representative of Technospert Gram Vikas Pratishthan, Parbhani. 2. In the village Bangarwadi, under Employment Guarantee Scheme Project of Loose soil dam was undertaken, the places were approved by the Gram Sabha. For such purposes, services of Technical Providers were obtained. The work was to be done by the Agency, however, supervisory activities were to be carried by the applicants herein. Based on the report/grievance of rival group represented by Rambhau Bangar, inquiry was conducted and it was found that an amount of Rs. 4,57,586/- has been misappropriated by manipulating documents while implementing Employment Guarantee Scheme ( Rojgar Hami Yojana). 3. It was pointed that Bogus 3 CR.APL NOS.3527/2010, 3612/2010, 3625/2010, 3668/2010 AND 3858/2010 Muster Role, Bogus work sheet was prepared at the behest of the Sarpanch of the village which has been facilitated by Gram Sevika, Block Development Officer, Engineer and the Technical Assistant. The deficiencies and illegalities reflected when the payments were collected/received by unauthorized persons on the identification by Sarpanch. It was established 168 Passbooks of labourers en-block were found at the house of Sarpanch, the applicant herein. It revealed that few labourers who are named, whose statements are recorded, did not work at the site. However, their attendance has been marked for period from 16.7.2009 to 31.7.2009. One Surekha was hospitalized on 30th July, 2009. She was taken to other hospital. She confirmed, she did not attend the labour work, however, under her name and by preparing Bogus job card, payments are released, allegedly received in concert by the Sarpanch. The inquiry also 4 CR.APL NOS.3527/2010, 3612/2010, 3625/2010, 3668/2010 AND 3858/2010 revealed, minors below 18 years are also shown to be engaged as labours and payments are made at the identification of Sarpanch. The Block Development Officer or the Draftsman and the Gram Sevika facilitated such illegalities in misappropriation to the figure referred above. 4. Mr.V.D. Salunke, Counsel, canvassed, no role is played by the Sarpanch due to the agreement entered into by the implementing agency. It is incorrect, as the investigation revealed, Sarpanch was monitoring all the affairs. Even if Agreement was in existence it mostly related to quality and adhering time schedule. He disputed names of the labours, facilitated receiving amount on behalf of such labours, the labours were either minor or even did not work. 5. The role played by the Sarpanch is quite clear. Though Mr.Salunke submits, Block 5 CR.APL NOS.3527/2010, 3612/2010, 3625/2010, 3668/2010 AND 3858/2010 Development Officer is mostly responsible, however, it was in association with Block Development Officer and the Gram Sevika, payments are shown to be released which, indeed, did not reach to the beneficiaries of scheme. 6. Learned Counsel Mr. Dodiya informs that Block Development Officer's acts are done in good faith, however, it is not so as the Scheme had inbuilt arrangement with checks and balances but same has been put to shelves. 7. It was obligatory of the Gram Sevak to carry necessary proceedings of Gram Sabha to maintain proper accounts and to convene meeting, however, it is not so done. The funds provided by the Central Government are, thus, misused and siphoned. The belief that there will not be any misdeeds in implementing scheme is fractured. The Muster Rolls are not countersigned by Muster Assistant. It was pointed, 6 CR.APL NOS.3527/2010, 3612/2010, 3625/2010, 3668/2010 AND 3858/2010 instead of getting the work manually, J.C.B. machines were deployed. 8. The parameters for entertaining anticipatory bail applications, particularly in the nature of accusations referred above, are well settled. The Hon’ble Apex Court in Siddharam Satlingappa Mhetre V. State of Maharashtra ( 2010(12) SCALE 691), at paragraph 122 indicated following aspects. "122. The following factors and parameters can be taken into consideration while dealing with the 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 7 CR.APL NOS.3527/2010, 3612/2010, 3625/2010, 3668/2010 AND 3858/2010 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 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." 9. The Hon'ble Apex Court, succinctly clarified object of Section 438 of Cr.P.C. in the matter of HDFC Bank Ltd. Vs. J.J.Mannan @ J.M.John Paul and anr (2010 CRI.L.J.2293) in paragraph no.15, as under: " The object of Section 438 Cr.P.C. has been repeatedly explained by this Court and the High Courts to 8 CR.APL NOS.3527/2010, 3612/2010, 3625/2010, 3668/2010 AND 3858/2010 mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But, at the same time, the provisions of Section 438 Cr.P.C. cannot also be invoked to exempt the accused from surrendering to the Court after the investigation is completed and if charge- sheet is filed against him." 10. Applying the above scale, the voluminous documents expand prima facie complicity to each of the accused/applicants in diverting Government funds for self benefit and causing misappropriation thereof. Though allegations against one of the applicant Ban is of manipulating signatures of superior authorities, however, it is not so indicated but, at the same time, under the garb of social work and representative of the implementing agency, he participated and actuated in misappropriation and could have received his share of cake. 11. In the result, no case to 9 CR.APL NOS.3527/2010, 3612/2010, 3625/2010, 3668/2010 AND 3858/2010 exercise discretion in favour of any of the applicants. Applications rejected. Observations are prima facie in nature. 12. Heard. Interim protection extended till 3rd March, 2011. Liberty to approach the learned Judge for regular bail. (K.U.CHANDIWAL) JUDGE ... AGP/3527-10crapl