1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH : NAGPUR Criminal Application No. 3024 of 2009 Applicant : Gajanan Jairam and ors versus Respondent : State of Maharashtra Mr Anil Mardikar, Advocate for applicants Mr A. Parihar, Addl. Public Prosecutor for State Coram : A.P. Bhangale, J Dated : 6th October 2009 P.C. 1. Heard Mr Anil Mardikar, learned counsel for applicants and Mr A. Parihar, learned Additional Public Prosecutor for State. Applicants are seeking anticipatory bail in Crime No. 31/2009 registered with Police Station, Chhani, District Akola under Sections 409, 420, 467, 468, 471 read with Sections 34 and 120B of the Indian Penal Code. 2. Applicant no.1 is a contractor while applicant no. 2 is Junior Engineer and applicant no. 3 is Deputy Engineer with 2 the Irrigation Department of Zilla Parishad. Contract for Kolhapuri Type Bandhara, popularly known as “K.T. WEIR”, was allotted to a registered Government contractor. It is claimed that contractor completed the work of contract in 2008-09. It is further claimed that running bills of the actual work done were sanctioned from time to time after the officers of Department inspected the site and measured the work. However, it is alleged that applicants have indulged into misappropriation in collusion with other engineers and contractors and offences, as aforesaid, have been registered against them. 3. Learned counsel for applicants strenuously contended that running bills were prepared by the Department after taking due measurement of the work and they are sanctioned by the department step-by-step as per the work completed. He submits that had the contractor not completed work, running bills would not have been prepared and sanctioned. He further submits that had the work not been as per the design given by the Department, the Department would not have allowed contractor to continue with the work and it would have asked contractor to rectify the mistake. Not only that, but the completion certificate was 3 also issued to contractor and, therefore, no fault could be found with the applicants. He contended that because of political rivallary with the contractors, applicants along with others have been falsely implicated in the crime. Learned counsel further submits that applicants no. 2 and 3 are Government servants working as Junior Engineer and Deputy Engineer respectively and in the event they are arrested, it is likely that they will be placed under suspension and they may invite even deemed suspension and they would thereby would suffer from grave and irreparable loss. He also submits that applicant no. 1 is a qualified engineer and registered with the Department as contractor. In the event of his arrest, applicant no.1’s name would be deleted from the panel of contractors maintained with the Department. He further submits that entire records are in the custody of Department including Measurement Book, copies of bills and, therefore, custodial interrogation of applicants is not necessary. 5. Anticipatory bail application is objected by learned Additional Public Prosecutor mainly on the ground that custodial interrogation of applicants is necessary. Learned Additional Public Prosecutor contended that applicants and others conspired and have duped the State Government of huge money. He submitted 4 that applicants no.2 and 3 approved substandard work carried out by the applicant no.1-contractor. He submitted that five- member committee was constituted and during technical enquiry, act of cheating, misappropriation and conspiracy indulged into by applicants was revealed. According to learned APP, there was misappropriation of huge amount and because of misappropriation, deriliction and negligence in duty by applicants no. 2 and 3 to illegally favour applicant no.1, scheme could not reach to the general public. He prayed for dismissal of application. 6. It is found that the Additional Sessions Judge had initially protected the applicants by interim order. After rejection of his application, applicants approached this Court and this Court vide order dated 10th August 2009 had granted interim anticipatory bail to the applicants. I have perused the order of Additional Sessions Judge. The Additional Sessions Judge has dealt with the issue threadbare and by a detailed order, has rejected application for anticipatory bail vide order dated 30th July 2009. 7. In the light of allegations of conspiracy, cheating and misappropriation on the basis of technical survey by five- member committee, I think, question as to whether custodial 5 interrogation is really necessary must be left to regular Court dealing with prayer for remand. 8. In Salauddin Abdulsamad Shaikh v. State of Maharashtra reported in (1996) 1 SCC 667, the Supreme Court has held - “Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge- sheet is submitted.” 9. Taking into consideration material collected by the 6 Investigating agency, without observing anything on merit, in my opinion, it would be appropriate leave the question of granting including the question of grant of appropriate remand to the regular Court as regular Court cannot be byepassed. Of course, in order to enable applicants to surrender before the regular Court, they can be protected for some time. Hence, the following order. 10. In the event of their arrest in Crime No. 31/2009 registered with Police Station, Chhani, District Akola under Sections 409, 420, 467, 468, 471 read with Sections 34 and 120B of the Indian Penal Code, applicants shall be released on temporary anticipatory bail upon their furnishing PR Bond in the sum of Rs. 25,000/- each with one or two sureties in the like amount. The temporary anticipatory bail is granted to applicants upto 15th October 2009. If temporary anticipatory bail is availed of by applicants, they will make themselves available to Investigating Officer as and when required. They shall not tamper with prosecution evidence in any manner. Applicants shall leave their permanent address with telephone/cell phone number, if any, with the Investigating Officer and shall communicate change therein, if any, in future. This order 7 granting temporary anticipatory bail shall automatically expire at the end of 15th October 2009. Applicants, in the mean-time, may surrender before the regular Court and apply for grant of bail. In such event, regular Court shall decide application of the applicants for grant of bail on its own merit and in accordance with law. Application stands disposed of accordingly. Hamdast granted. A.P. BHANGALE, J hsj