JUDGMENT 1. - Heard learned counsel for the petitioner as well as the learned Public Prosecutor. 2. This bail application under Section 439 Cr.P.C. has been filed against the order dated 27.7.2010 passed by learned Additional Sessions Judge, Beawar, District Ajmer, arising out of FIR No. 33/10 registered at Police Station Todgarh, District Ajmer for the offences under Sections 420, 467, 468 and 409 IPC. 3. The instant criminal case had been initiated on a report lodged by Vikas Adhikari, Panchayat Samiti, Javaja, District Ajmer on 16.4.2010 to the SHO, Police Station Todgarh, District Ajmer. It has been mentioned in the report that the State Government had on 10.2.2010 ordered for an enquiry in respect of the works done in MNREGA (Mahatma Gandhi National Rural Employment Guarantee Act) by Gram Panchayat Malati-ki-Ber, Panchayat Samiti, Javaja. Further, it is stated in the report that for the said purpose the State Government had constituted a Special Enquiry Team of which Mahendra Singh Bhukar, Joint Director was the head. The said Enquiry Team looked into the accounts from 3.3.2010 to 8.3.2010 and also physically verified the works done. According to the report, in respect of 28 works done of which copy was annexed, higher valuation had been done in the measurement books and in this embezzlement persons namely; Ganpat Singh Malawat, Sarpanch, Badaram Prajapat, Junior Engineer/Senior Technical Assistant, Manish Mittal, Junior Technical Engineer and Lalchand Yogi, Gram Sewak cum Secretary, Malato-ki-Ber, were involved.Thereafter, the investigation commenced and charge sheet came to be filed on 23.9.2010, against all the aforesaid persons holding that on the basis of evidence collected during the investigation and the record of the Panchayat Samiti, the alleged offences are prima facie established. The petitioner was arrested on 29.6.2010. It has also been informed that part of the embezzled amount i.e. Rs. 1,20,000/- had been recovered from the residence of the petitioner by Anti Corruption Bureau on 5.6.2010. It is to be noted that in respect of the other accused-persons, it has been mentioned in the charge-sheet that efforts for their arrest is being made. 4. It has been submitted by the counsel for the petitioner that the Chief Executive Officer, Zila Parishad, Ajmer vide order dated 24.6.2009 had posted the petitioner as Assistant Engineer at Panchayat Samiti, Javaja and he worked till 28.10.2009. 4. It has been submitted by the counsel for the petitioner that the Chief Executive Officer, Zila Parishad, Ajmer vide order dated 24.6.2009 had posted the petitioner as Assistant Engineer at Panchayat Samiti, Javaja and he worked till 28.10.2009. Further, he has submitted that the Investigating Agency, in the charge-sheet filed before the Court concerned, had noted in respect of the other co-accused that the embezzled amount was to be recovered; their arrest is to be made and the investigation had been kept pending under Section 173 (8) Cr. PC. He has also referred to the enquiry report submitted by the special enquiry team constituted by the State Government contending that it was the other accused-persons like Sarpanch, who were to supervise the NAREGA work and they are responsible for embezzlement, if any. The learned counsel for the petitioner has also submitted that Additional District Coordinator-cum-Chief Executive Officer, Ajmer had issued an order on 1.10.2010 whereby the recovery of the amount is to be made from co-accused Ganpat Singh, Lalchand Yogi and Manish Mittal. He has also referred to writ petition (13278/10) filed by the present petitioner along-with his wife challenging the recovery notice dated 15.4.2010 and the attachment notice dated 9.8.2010 wherein the order of 15.4.2010.has been stayed by the High Court. 5. On the other hand, learned Public Prosecutor has opposed the bail application and submitted that apart from the fact the. part of the embezzled amount had been recovered from the petitioner, the measurement books had been duly signed by him and there is other evidence on record to show his involvement in commission of the crime. 6. This court has considered the submissions made by the counsels for the rival parties and have carefully gone through the material on record, placed by the Investigating Agency along with the challan. 7. The State Government vide its order dated 10.2.2010 had constituted a Special Enquiry Cell with regard to MNREGA works from 1.4.2008 to 31.12.2009 in respect of four Gram Panchayats of the State, which included Gram Panchayat Malato-ki-Ber, Panchayat Samiti, Javaja, District Ajmer. The said Committee, headed by Mahendra Singh Bhukar, had submitted its detailed report which is also a part of the challan and came to the conclusion that in 28 works of MNREGA irregularities had been committed and illegal payments, to the tune of Rs. The said Committee, headed by Mahendra Singh Bhukar, had submitted its detailed report which is also a part of the challan and came to the conclusion that in 28 works of MNREGA irregularities had been committed and illegal payments, to the tune of Rs. 1,41,61,893/-, had been made on account of the conspiracy between Ganpat Singh Malawat, Sarpanch, Bagdaram Prajapat, Junior Engineer/Senior Technical Assistant, Manish Mittal, Junior Technical Engineer and Lalchand Yogi, Gram Sewak-cum-Secretary, Gram Panchayat Malato-ki-Ber. On the said report, the instant FIR came to be lodged by Vikas Adhikari, Panchayat Samiti, Javaja. It is to be noted that though in conclusion of the charge-sheet, it has been categorically mentioned that all the aforesaid persons are involved in the commission of the crime and the offences are well established against them, but apart from the present petitioner the investigation against other persons was kept pending under Section 173 (8) Cr.PC.In so far as the posting of the present petitioner vide order dated 24.6.2009 is concerned, it has been mentioned that he was already working on the post of Junior Engineer in the said Gram Panchayat and as the\post of Assistant Engineer-cum-Senior Technical Assistant was vacant in the Panchayat Samiti, the petitioner was authorised, till further orders, to work as STA (Senior Technical Assistant) in MNREGA scheme. In other words, the petitioner was very much working in the same Gram Panchayat and it was only on the post of Senior Technical Assistant, for the purpose of MNREGA, that the appointment was made on 24.6.2009. A perusal of the report submitted by the Special Enquiry Team headed by Mahendra Singh Bhukar goes to show that from the evidence on record of Gram Panchayat, including the measurement books etc., the involvement of the petitioner was prima facie established and that is why charge-sheet had been filed against him. 8. It is also noteworthy that the petitioner had in the meanwhile, filed a Criminal Misc. Petition under Section 482 Cr.PC. before the High Court challenging the FIR as well as the investigation in furtherance thereof. Though an interim order was passed at the initial stage, but subsequently the said misc. petition was dismissed on 30.8.2010. Thereafter before the High Court challenging the FIR as well as the investigation in furtherance thereof. Though an interim order was passed at the initial stage, but subsequently the said misc. petition was dismissed on 30.8.2010. Though an interim order was passed at the initial stage, but subsequently the said misc. petition was dismissed on 30.8.2010. Thereafter before the High Court challenging the FIR as well as the investigation in furtherance thereof. Though an interim order was passed at the initial stage, but subsequently the said misc. petition was dismissed on 30.8.2010. Thereafter a writ petition (13278/10) has been filed by the petitioner challenging the order of recovery dated 15.4.2010. Without expressing any opinion in respect of all the aforesaid proceedings undertaken by the petitioner, it would suffice to say that so far as the present criminal case is concerned, it has to be looked into on the basis of the evidence on record which has been collected during investigation and filed along with the charge-sheet for the purpose of adjudicating the present bail application. 9. On having considered the aforesaid facts and circumstances as well as the material on record and without making any observation in detail which may prejudice the case of either party at this Court is only considering the bail application under Section 439 Cr.P.C., I am of the opinion that no case for bail is made out in favour of the petitioner. 10. Consequently, the bail application is dismissed. 11. Before parting with this order, I deem it appropriate to refer to certain facts and circumstances of the case, emerging from the evidence collected during the course of investigation. 10. Consequently, the bail application is dismissed. 11. Before parting with this order, I deem it appropriate to refer to certain facts and circumstances of the case, emerging from the evidence collected during the course of investigation. The Investigation Officer, in the charge-sheet filed on 23.9.2010, had made the following remarks " vr% izdj.k gktk esa vc rd dh xbZ rQrh'k] c;kukr xokgku] voyksdu tIr 'kwnk fjdkMZ] i=koyh ij miyC/k nLrkostksa o iwNrkN ls eqfYteku Jh cxnkjke] x.kirflag] ykypUn ;ksxh] euh"k feRry ds fo:) vijk/k /kkjk 420] 407] 468] 409 rk0 fg0 dk cS[kqch izekf.kr ik;k x;k gSA eqyfte cxnkjke iq= ukFkwjke tkfr iztkir mez 41 lky fuoklh esxMrk Fkkuk jk;iqj ftyk ikyh rRdkyhu ,0bZ0,u0 iapk;r lfefr toktk dks fnukad 26-6-10 dks fxjQrkj fd;k tkdj rQrh'k dh xbZ gSA nkSjku rQrh'k eqyfte cxnkjke }kjk xcu dh xbZ jkf'k esa ls vius fgLls esa vkbZ jkf'k 12]000@& :0 crk;s tks eqfYte ds fuokl LFkku ls fnukad 5-6-10 dks ,0lh0ch0 }kjk dk;Zokgh ds nkSjku tIr djuk crk;k x;kA tks U;kf;d vfHkj{kk esa py jgk gSA " But despite of the said conclusion, in categorical terms, that the offences against Ganpat Singh, Lalchand Yogi and Manish Mittal have been well established, the charge-sheet had not been filed against them under Section 299 Cr.P.C. On the contrary, the investigation was kept pending under Section 173 (8) Cr.PC. Even though a bare perusal of the evidence collected during the investigation clearly shows that there is more than sufficient evidence on record so as to prima facie establish their involvement in the commission of crime. The purpose for filing the charge-sheet under Section 173 (8) Cr.P.C. is very obvious that if proper steps had been taken by the Investigation Agency to file challan under Section 299 Cr.P.C., then the appropriate procedure in furtherance thereof had to be adopted against the said persons by way of attachment of properties etc. under the provisions of Criminal Procedure Code and they would not have been left free from the clutches of law. 12. The other accused-persons are none else but sitting Sarpanch, Junior Technical Engineer and Gram Sewak-cum- Secretary of the Gram Panchayat. When pointed query was made to the Investigating Officer as to why other persons have not been arrested so far, he failed to give any satisfactory reply/explanation. 12. The other accused-persons are none else but sitting Sarpanch, Junior Technical Engineer and Gram Sewak-cum- Secretary of the Gram Panchayat. When pointed query was made to the Investigating Officer as to why other persons have not been arrested so far, he failed to give any satisfactory reply/explanation. As regards to the time required for arresting the other persons, the Investigating Officer has deposed as under : "That to arrest the co-accused namely Ganpat Singh, Manish Mittal and Lalchand Yogi, all sincere and intense efforts were made by the Police but they are not available so far. However, all possible efforts are being continued to arrest the accused persons. However, it is submitted that the aforesaid co-accused persons may be arrest by the humble deponent/Investigating Officer up to 29.11.2010." 13. In other words, the said accused persons who had not been arrested during the course of investigation, the Investigating Agency still requires time so as to arrest them and that too not certain as Investigating Officer has said that the accused may be arrested up to 29.11.2010. The facts and circumstances revealed from the evidence on record filed along with the challan as well as the fact that other accused persons have not been arrested so far, speak volumes with regard to the lack of sincere efforts made by the Investigating Agency so as to carry the matter to its logical conclusion..Having regard to the fact that the State Government appeared to be sincere to have ordered for constituting special Enquiry Teams for four Gram Panchayats in the State of Rajasthan which had distributed the highest amount for the purpose of MNREGA. The steps taken by the Investigating Agency, in the present case, reflects that the very purpose of holding such special enquiry was being sought to be defeated. 14. Therefore, I deem it just and proper to direct that a copy of this order be sent to (1) Director General of Police, Rajasthan, (2) The Special Secretary (Home), Government of Rajasthan, (3) The Principal Secretary, Rural Development and Panchayat Raj Department, Government Secretariat, Jaipur for information and necessary action.Bail Application Rejected - Purpose of Special Enquiry Not adhered to - Copy of order sent to D.G. Police.. *******