Research › Search › Judgment

Gujarat High Court · body

2017 DIGILAW 1094 (GUJ)

Shamjibhai Hirabhai Parmar v. State of Gujarat

2017-06-21

A.J.SHASTRI, ABHILASHA KUMARI

body2017
JUDGMENT : Abhilasha Kumari, J. 1. These applications have been preferred by the applicants with a prayer to enlarge them on temporary bail for different reasons as stated in the respective applications. We have considered it appropriate to pass a consolidated order in the present applications, though the facts would be dealt with separately, for the reason that in each of these applications, we find a recommendatory certificate of the Sarpanch of the concerned Gram Panchayat attached as an annexure. The tone and tenor of these certificates is that the convict may be released on bail for the purpose stated in the application. 2. The issuance of such a certificate by a Sarpanch of a Gram Panchayat, clearly does not fall within the purview of the executive functions of a Sarpanch, as laid down in Section55 of the Gujarat Panchayats Act, 1993. The duties and functions of a Sarpanch are meticulously delineated in the said provision and no Sarpanch can assume upon himself, or herself, the authority to perform any other role in his, or her, capacity as a Sarpanch, other than what is stated in the Statute. Subsection (2) of Section55, which lays down the duties of a Sarpanch is reproduced hereinbelow : “55. Executive functions of Sarpanch, or Upa-Sarpanch: (1) ***** (2) Without prejudice to the generality of the foregoing provision (a) the Sarpanch shall (i) preside over and regulate the meetings of the panchayat. (ii) exercise supervision and control over the acts done and actions taken by all officers and servants of the panchayat. (iii) incur contingent expenditure upon fifty rupees at anyone occasion. (iv) Operate on the fund of the panchayat including authorization of payment, issue of cheques and refunds; (v) be responsible for the safe custody of the fund of the panchayat. (vi) Cause to prepared all statements and reports required by or under this Act; (vii) exercise such other powers and discharge such other functions as may be conferred or imposed upon him by this Act or rules made thereunder.****” 3. The above are the functions and duties of a Sarpanch, which clearly do not include the issuance of certificates recommending the enlargement of convicts on temporary bail, for any reason whatsoever, in the official capacity as a Sarpanch. 4. Of late we are almost deluged by certificates of this nature, issued by Sarpanchas, Municipal Councilors, Members of the Municipalities and even Talati-cum-Mantris. 4. Of late we are almost deluged by certificates of this nature, issued by Sarpanchas, Municipal Councilors, Members of the Municipalities and even Talati-cum-Mantris. Every second or third application for temporary bail filed by the convict, be it through Jail or through counsel, is accompanied by a certificate recommending the release of the convict, for reasons stated in the certificate, which correspond with the reason stated in the application filed by the convict. 5. Had it been a singular case, or had such certificates surfaced once in a while, we would have ignored them. However, as the volume of such certificates is increasing day-by-day, we can no longer ignore this phenomenon. What is more, each certificate is written on the official letterhead of the Sarpanch of the concerned Gram Panchayat, and the official seal is fixed under the signature. In all matters except Criminal Misc. Application No.14954/2017, there is no outward number on the certificate, indicating that it does not form a part of the record of the Gram Panchayat. 6. We cannot but observe that such recommendatory certificates, issued by elected representatives at whatever level of hierarchy, constitute a direct interference in the functions of the Court and seek to influence the independent application of mind by the Court. This causes an obstruction in the performance of our judicial functions and is a hindrance in the administration of justice. We deprecate such a practice and take serious note of it. 7. We shall now deal with each individual application separately. Criminal Misc. Application No.14950/2017: 8. The convict applicant has preferred this application dated 05.06.2017, through Jail, with a prayer to enlarge him on temporary bail for a period of thirty days to enable him to perform agricultural activities and prepare his land for cultivation before the coming monsoon season. 9. The applicant is undergoing life imprisonment in connection with offences punishable under Sections302 read with Section149 of the Indian Penal Code, 1860. 10. We have perused the averments made in the application, as well as the Jail remarks pertaining to the applicant, which indicate that his conduct is good and on the previous occasions when he was released on temporary bail, he has surrendered on time. 11. The application is accompanied by a certificate dated 29.05.2017, issued by Shri Rameshbhai Khodabhai Solanki, Sarpanch of Ingorala (Kha) Gram Panchayat, Taluka Gadhda (Swa.), District Botad. 11. The application is accompanied by a certificate dated 29.05.2017, issued by Shri Rameshbhai Khodabhai Solanki, Sarpanch of Ingorala (Kha) Gram Panchayat, Taluka Gadhda (Swa.), District Botad. It is, interalia, stated in the said certificate that the parents of the applicant are old and if the applicant can come home it would be possible to carry out agricultural activities. This certificate does not have any outward number. 12. By our order dated 15.06.2017, we had asked the Sarpanch of Ingorala (Kha) Gram Panchayat, Taluka Gadhda (Swa.), to remain present on 20.06.2017. 13. On 20.06.2017, Shri Rameshbhai Khodabhai Solanki, Sarpanch, had remained present. On asking him whether he has issued the certificate dated 29.05.2017, he had stated in the affirmative. However, he has clarified that, though he has signed the certificate, its contents have not been written by him, as he has only studied upto the 3rd Standard. He was unable to read the contents of the certificate when asked to do so. On inquiry regarding who had written the contents of the certificate, the Sarpanch has stated that he had given the official letterhead of Sarpanch to one Shri Danabhai, brother of the present applicant, who is also a convict, when he was out on Parole. The said Danabhai wrote the contents of the certificate and he then put his signature and seal on the certificate. He further informed us that he keeps the official letterhead and seal of the Sarpanch in his “Pan” and “Kariyana” shop, though there is a Gram Panchayat office in the village. He has stated that he does not know what is written on the certificate, which he has merely signed, without being aware of its contents. Our interaction with Shri Rameshbhai Khodabhai Solanki has been recorded in our order dated 20.06.2017. 14. The conduct of the applicant of the present application in asking his brother, who is also a convict, to procure the certificate on his behalf from the Sarpanch, in order to use it in the application for temporary bail, cannot be appreciated at all. The Court does not require the opinion of any external agency in order to perform its judicial functions. This is merely an attempt to influence the Court, by bringing recommendations from elected representatives such as the Sarpanch, in order to procure a favourable order. The Court does not require the opinion of any external agency in order to perform its judicial functions. This is merely an attempt to influence the Court, by bringing recommendations from elected representatives such as the Sarpanch, in order to procure a favourable order. Shri Rameshbhai Khodabhai Solanki has stated that he is aware of the fact that Danabhai, brother of the present applicant is also a convict and was on Parole when he wrote the certificate, on which he has signed in his capacity as Sarpanch. This shows that these Sarpanchas are handinglove with convicted persons and are readily issuing certificates for some reason which may not be difficult to fathom, at their behest. 15. Though the Jail conduct of the applicant is stated to be good, at present, he was given a Jail punishment for argumentative behavior, which has been noted in the Jail remarks. 16. Shri Rameshbhai Khodabhai Solanki, Sarpanch, has handed over an apology note dated 21.06.2017, stating that he would not repeat his action of issuing such certificates, in future. The apology note is taken on record. 17. Considering the overall facts and circumstances of the case and the manner in which an attempt has been made to influence the Court, we pass the following order: The application is rejected. Rule is discharged. Criminal Misc. Application No.14954/2017 18. This application dated 31.05.2017, has been preferred by the applicant convict through Jail, with a prayer to release him on temporary bail for a period of forty-five days, in order to complete the construction of his house. 19. The applicant is undergoing life imprisonment in connection with offence punishable under Section 302 of the Indian Penal Code, 1860. 20. We have perused the contents of the application, which is accompanied by a certificate dated 17.05.2017, issued by Shri Varsangbhai Velabhai Thakore who was, at the relevant period of time, the Sarpanch of Vahedpura Gram Panchayat, Taluka Sami, District Patan. It is, interalia, stated in the certificate that the presence of the convict is necessary in order to repair his house. We have perused the Jail remarks pertaining to the applicant, which indicate that the applicant was enlarged on temporary bail with effect from 02.05.2017 to 16.05.2017 by the order dated 27.04.2017, passed in Criminal Misc. Application No.10699/2017, on the ground of the wedding of his nephew. Thereafter, the applicant surrendered in time. We have perused the Jail remarks pertaining to the applicant, which indicate that the applicant was enlarged on temporary bail with effect from 02.05.2017 to 16.05.2017 by the order dated 27.04.2017, passed in Criminal Misc. Application No.10699/2017, on the ground of the wedding of his nephew. Thereafter, the applicant surrendered in time. However, it appears that the very next day after the applicant surrendered, he has procured the certificate of the Sarpanch of Vahedpura Gram Panchayat dated 17.05.2017, stating a new ground for his release on temporary bail. 21. It is not as though the house could not have been repaired when the convict was released earlier. 22. Shri Varsangbhai Velabhai Thakore, the then Sarpanch of Vahedpura Gram Panchayat, is present in the Court today. He has stated that he is now no longer the Sarpanch, as his term is over. However, when the certificate was issued, he was holding the post of Sarpanch. He has identified his signature on the certificate. He has stated that he has not written the contents of the certificate, as he has studied only upto the 2nd Standard, and is more or less illiterate. He was not in a position to read the contents of the certificate. He states that a boy named Rameshbhai, aged 22 years, who is related to the applicant, has written the contents of the certificate, which has been signed by him in his official capacity as Sarpanch. He has also affixed his seal under his signature. 23. He has further stated that he gave the blank letterhead of the Sarpanch to the said Rameshbhai, who wrote the contents of the certificate, and he has merely signed at the bottom and appended his seal. We notice that this certificate has an outward No.1129. When asked whether this certificate is reflected in the record of the Gram Panchayat, Shri Varsangbhai Velabhai Thakore says that he does not know. 24. We are not at all inclined to exercise discretion in favour of the applicant convict who has procured a certificate through his relative, Rameshbhai, who went so far as to write the contents of the certificate and get it signed by the Sarpanch of the Gram Panchayat, in an attempt to influence our discretion. 24. We are not at all inclined to exercise discretion in favour of the applicant convict who has procured a certificate through his relative, Rameshbhai, who went so far as to write the contents of the certificate and get it signed by the Sarpanch of the Gram Panchayat, in an attempt to influence our discretion. What is more shocking is that the Sarpanch has handed over the blank official letterhead to the relative of the convict who wrote the certificate and has blindly signed it. The Ex-Sarpanch has thoroughly misused his position by doing so. There may be more to it than meets the eye. 25. We are, therefore, neither convinced by the grounds raised in the application nor the contents of the certificate. 26. Shri Varsangbhai Velabhai Thakore, Sarpanch, has tendered an apology note dated 21.06.2017, which is taken on record. 27. For the above reasons, the application is rejected. Rule is discharged. Criminal Misc. Application No.15216/2017 28. This is an application dated 05.06.2017, sent by the applicant convict through Jail, with a prayer to release him on temporary bail for a period of thirty days, on the ground of repairing his house. The applicant is undergoing life imprisonment in connection with the offence punishable under Section302 of the Indian Penal Code, 1860. 29. We have perused the averments made in the application, which is accompanied by a certificate dated 29.05.2017, issued by the Sarpanch of Sankaliaanta (Sankali) Gram Panchayat wherein, it is interalia stated that it is necessary to release the applicant to repair his house. The certificate does not contain any outward number. 30. Smt. Chetnaben Sureshbhai Patel, Sarpanch of Sankaliaanta Gram Panchayat, is present in person. She has identified her signature on the certificate and the seal appended by her, thereupon. She, however, states that the contents of the certificate have not been written by her, but have been written by her husband, Shri Sureshbhai Aaratsinh Patel. She has stated that Prabhatbhai, the father of the applicant, approached her to issue the certificate, therefore, her husband wrote the contents of the certificate on her blank official letterhead, which she has merely signed. 31. We have perused the Jail remarks pertaining to the applicant which indicate that his conduct in Jail is good. She has stated that Prabhatbhai, the father of the applicant, approached her to issue the certificate, therefore, her husband wrote the contents of the certificate on her blank official letterhead, which she has merely signed. 31. We have perused the Jail remarks pertaining to the applicant which indicate that his conduct in Jail is good. However, we are not inclined to exercise discretion in favour of the applicant who has tried to interfere with the discretionary jurisdiction of the Court by asking his father to approach the Sarpanch to write a recommendatory certificate, in order to use it in Court proceedings. 32. We are shocked to see that husband of the Sarpanch has written the contents of certificate, which the Sarpanch has signed. This shows that the Sarpanch is abdicating her official duties as Sarpanch to her husband who is happily assuming the same. This appears to be the usual practice. 33. Smt. Chetnaben Sureshbhai Patel, Sarpanch, has handed over an apology note dated 21.06.2017 indicating that she would not repeat this behavior in future, which is taken on record. 34. We are not inclined to grant the prayer made in the application, therefore, the application stands rejected. Rule is discharged. Criminal Misc. Application No.15233/2017 35. This application has been preferred by the applicant, through learned advocate Ms. Hansa V. Patel, with a prayer to release him on temporary bail for a period of thirty days as the applicant wants to cultivate his land by making preparations for the monsoon season. It is stated in the application that the parents of the applicant are old and, therefore, his presence is required in order to do the needful. 36. The application is accompanied by a certificate dated 12.06.2017, issued by the Sarpanch, Gram Panchayat Khanpur, Taluka Morva (H.), District Panchmahals, wherein it is interalia stated that the presence of the applicant is necessary in order to be helpful to his family. 37. Smt. Shardaben Jaidipsingh Baria, Sarpanch of Gram Panchayat Khanpur, is present in the Court today. She has identified her signature on the certificate, as well as the seal of the office of Sarpanch, affixed by her. She has stated that she has not written the contents of the certificate and it is her son, Kalpendrakumar, who is studying in the 12th Standard, who has written its contents. She has identified her signature on the certificate, as well as the seal of the office of Sarpanch, affixed by her. She has stated that she has not written the contents of the certificate and it is her son, Kalpendrakumar, who is studying in the 12th Standard, who has written its contents. She has stated that the father of the applicant, Udesinh Pandor, approached her in order to procure the certificate. Her son prepared the certificate, on which she has signed. This certificate also does not have any outward number, therefore, there may not be any record of it in the office of the Gram Panchayat. It further appears that the letterhead and seal of the office of Sarpanch are being kept by her at her house. 38. The applicant is undergoing life imprisonment in connection with the offence punishable under Section302 of the Indian Penal Code, 1860. 39. The Jail remarks regarding the applicant indicate that he was released on temporary bail from 11.05.2017 to 12.05.2017, for the purpose of attending a marriage. The Jail conduct of the applicant is stated to be good. 40. We are not inclined to exercise discretion in favour of the applicant who has procured the abovementioned certificate in order to influence our discretion. The manner in which the certificate is procured reveals that there is a thorough misuse of the powers of Sarpanch by the Sarpanch. The official letterhead has been used by her son who is a totally unauthorized person to write the certificate and the Sarpanch has signed it. 41. Smt. Shardaben Jaidipsingh Baria, Sarpanch, has tendered an apology note dated 21.06.2017, indicating that she would not repeat her mistake again which is taken on record. 42. At this stage, Ms.Hansa V. Patel, learned advocate for the applicant submits that she may be permitted to withdraw the application. 43. Subject to our above observations, permission to withdraw the application is granted. The application stands dismissed, as withdrawn. Rule is discharged. 44. All the above cases clearly indicate the manner in which the office and powers of the Sarpanch of a Gram Panchayat are being misused and usurped by unauthorized persons with the active connivance of the Sarpanch concerned. The concerned Sarpanch has acted with total disregard to his or her statutory duties and functions by permitting extraneous persons such as the husband of the Sarpanch in Criminal Misc. The concerned Sarpanch has acted with total disregard to his or her statutory duties and functions by permitting extraneous persons such as the husband of the Sarpanch in Criminal Misc. Application No. 15216/2017 and the son of the Sarpanch in Criminal Misc. Application No. 15233/2017 to dictate the contents of the certificate which is blindly signed by the Sarpanch. 45. The official letterhead and seals of the office of Sarpanch are being thoroughly misused for the purpose of churning out such certificates, maybe for an oblique consideration. It appears that these letterheads and seals are being kept by the Sarpanch at home. Apart from this, the certificates do not bear any outward number, indicating that no record is maintained in the office of the Gram Panchayat. 46. In Criminal Misc. Application No.14950/2017, the letterhead and seal of the Sarpanch have been kept in the shop of the Sarpanch. Keeping the official letterheads and seals in houses and shops and handing over blank letterpads to unauthorized people has led to their misuse, which amounts to an abuse of the official position of Sarpanch. The concerned Sarpanch has given blank letterheads to such persons who have filled in the contents of the certificate signed by the Sarpanch. Some of those persons are relatives of the convicts before us. In two instances, the Sarpanch has signed on certificates prepared by her husband and son, without even being aware of its contents. 47. We are pained to note that two of the Sarpanchas before us are ladies; namely, Smt. Chetnaben Sureshbhai Patel, Sarpanch of Sankaliaanta Gram Panchayat and Smt. Shardaben Jaidipsingh Baria, Sarpanch of Khanpur Gram Panchayat. We are conscious of the policy of the State Government in reserving seats for women in election to the post of Sarpanch. The policy is aimed at fulfilling the democratic goals enshrined in the Constitution of India, for the empowerment and betterment of women. We are anguished to note that instead of empowering the lady Sarpanch, the husband or son of such a Sarpanch, as discussed above are misusing the powers and office of their Sarpanch wife/mother. What shocks us more even is that the lady Sarpanchas do not protest against such interference by their family members but willingly succumb to such pressure. It all appears to be a family affair. 48. What shocks us more even is that the lady Sarpanchas do not protest against such interference by their family members but willingly succumb to such pressure. It all appears to be a family affair. 48. Apart from the above, we find that such recommendatory certificates constitute a direct interference in our judicial functions and duties, inasmuch as they are aimed, though unsuccessfully, to influence the mind of the Court. It is not as though that our minds can be influenced so easily by such blatant attempts. However, such certificates, which are now appearing in almost every second case, do hamper the work of the Court. 49. The routine issuance of such certificates, to oblige people, which is not a part of the official duties and functions of a Sarpanch, encourages abuse and misuse of the position of Sarpanch by unauthorized persons and relatives and encourages corruption and malpractices. 50. It appears that the concerned Sarpanch is handinglove with persons who have been convicted of serious offences and are undergoing sentence for the same. They are actively helping them in their attempt to get temporary bail, by churning out such recommendatory certificates. The menace of such certificates has assumed alarming prepositions. For the above reasons, we consider it appropriate to bring the situation to the notice of the concerned Department of the State Government, so that appropriate measures, such as issuance of an appropriate Notification reminding the Sarpanchas to perform their statutory duties as per law, can be issued and the Court may be spared from dealing with such certificates. We hope that the State Government will take appropriate action by issuing guidelines in this regard. 51. A copy of this order may be conveyed to the Principal Secretary, Panchayat, Rural Housing and Rural Development Department in order to do the needful.