AB 3222/2011 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY Heard Mr. D.Das, learned Sr. counsel assisted by Mr. D. Talukdar, learned counse l for the petitioner and Mr. BB Gogoi, learned Addl. P.P.. This is an application u/s 438 CrPC, seeking pre-arrest bail on behalf of the pe titioner, Biren Kalita @ Birendra Kalita in connection with Dhula PS Case No.110 /2011 u/s 409/34 IPC. Learned Adl. PP by producing the case diary has apprised the Court regarding the progress of investigation so far made by the I.O. of the case. The allegation in the FIR reveals that the petitioner, who was working as Junior Engineer of Pub Mangoldoi Dev. Block allegedly neither paid the wages nor suppl ied the requisite materials to the labourers of VMC in respect of construction o f road from Sabed Ali house to Paraghat under MNREGAs 2008-09 Khataniapara G.P.. It has been further stated in the FIR that the scheme was jointly implemented b y Biren Kalita, J.E. and Abdul Malek President Pub Mongaldoi AP (APM of Khatania para G.P.). In the FIR VMC President Abi Seikh and Ataur Rahman claimed that t he VMC and labourers did not receive the amount of Rs.2,99,600/- from the petit ioner. Mr. BB Gogoi, learned Addl. PP by referring to the enquiry made by the Block Dev . Officer submits that Biren Kalita was requested on several occasions to comple te the work and to make payment to the labourer. Despite such requests, the pet itioner did not complete the work and make any payment to the labourers. Learned counsel for the petitioner pointed out that since the job entrusted was not completed, the entitlement the labourer for payment before completion of the work, is a question to be decided in a different Forum. Mr. D. Das, learned Sr. counsel by referring to Section 25 of the MNREGA Act, 20 05, submits that penal provision has been incorporated in the statute whereby it is provided that whoever contravenes the provisions of this Act shall on convi ction be liable to a fine which may extend to one thousand rupees. Therefore, i f the petitioner has failed to comply with the direction then in term of the spe cial Act penal provision as provided u/s 25 would follow. Thus, the allegation of misappropriation of fund by the petitioner may not have application in this c ase at this stage, since the work under the scheme is yet to complete. Learned Senior counsel has also pointed out that there is no sufficient materials to sho w that the amount was made available to the petitioner for payment to the labour ers. Furthermore, he also pointed out that the petitioner not being the Program me Officer, in terms of Section 15 of the MNREGA Act, 2005, the allegation of mi sappropriation of money against the petitioner, is pre-mature and redundant. Considering the matter in its entirety, keeping in view the nature of allegation and the progress of investigation, I am of the considered view that the petitio ner deserves to be enlarged on pre-arrest bail. Accordingly, the interim protection granted by this Court on 30.9.2011, is hereb y made absolute on following conditions: 1) the petitioner shall appear before the I.O. of the case as and when dire cted to do so; 2) the petitioner shall cooperate with the investigation of the case; and 3) the petitioner shall not try to influence any of the witnesses of the pr osecution. The bail application stands disposed of.