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2022 DIGILAW 1375 (GUJ)

Dhartiben Kantibhai Patel v. State of Gujarat

2022-10-13

NIKHIL S.KARIEL

body2022
ORDER : 1. Heard learned Advocate Ms. Vidhi Bhatt for the applicants and learned APP Mr. Ronak Raval for the respondent State. 2. By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicants – original accused pray for being released on anticipatory bail in connection with FIR No. 11209016220426 of 2022 registered with Himmatnagar “A” Division Police Station, District Sabarkantha on 30.03.2022 for offences punishable under Sections 465, 467, 471, 409, 406, 420 and 120B of Indian Penal Code. 3. At the outset, it would be relevant to mention that a learned Coordinate Bench of this Court vide an order dated 5.5.2022 had deemed it appropriate to protect the present applicants from being arrested and whereas, the said protection has enured in favour of the present applicants till date. 4. Learned Advocate Ms. Bhatt for the applicants would submit that the FIR itself is delayed by approximately 11 years, more particularly considering the allegations from the date of appointment of the present applicants. Learned Advocate Ms. Bhatt would further submit that as a matter of fact the appointment of the present applicants had not been questioned till 2018 when a charge sheet had been issued against the present applicants with regard to departmental proceedings, more particularly, alleging certain discrepancies in appointment of the present applicants. Learned Advocate Ms. Bhatt would submit that as such the said charge sheet had been later on dropped by the departmental authorities themselves. Learned Advocate Ms. Bhatt would submit that issue in question had arisen on account of the present applicants having preferred Writ Petitions before this Court seeking for regularizing services of the applicants, more particularly, upon completion of five years of service and whereas, it is at that stage that the informant as well as the authorities concerned had started questioning the aspect of appointment of the present applicants. Learned Advocate Mr. Bhatt would submit that the present applicants have worked out for approximately 12 years with the respondents and whereas, it is only after the present FIR is filed and the matter is being considered by this Court that vide orders dated 06.10.2022 the services of the applicants came to be terminated. Learned Advocate Ms. Bhatt would submit that the accused no. Learned Advocate Ms. Bhatt would submit that the accused no. 1 and 2 of the FIR, who had played major role according to the case of the first informant, had been released by a learned Co-ordinate Bench of this Court vide orders dated 18.05.2022 and whereas, considering the fact that the present applicants are lady accused, having no antecedents and willing to co-operate with the investigation, this Court may consider releasing the present applicants on pre-arrest bail. Learned Advocate for the applicants submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the applicants is available during the course of investigation and will not flee from justice. In view of the above, the applicants may be granted anticipatory bail. Learned Advocate for the applicants on instructions states that the applicants are ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. He would further submit that upon filing of such application by the Investigating Agency, the right of applicants-accused to oppose such application on merits may be kept open. 5. This application is vehemently objected to by learned APP Mr. Ronak Raval who would submit that the present is a clear case of fraud committed by the present applicants in connivance with the authorities concerned and whereas, the fraud has been played on the public exchequer and hence, it is submitted that this Court may not exercise discretion in favour of the present applicants. Learned APP Mr. Ronal Raval would submit that as such the present applicants had not even submitted application forms and whereas, the applicants had been appointed as teachers by the concerned authorities who have been joined as an accused and whereas, the present applicants having worked on the post for 12 years and having drawn salary and other benefits, it is submitted that no indulgence may be shown to the applicants. Learned APP Mr. Raval would also submit that while the issues came to the notice of the authorities concerned very late in the day but as soon as the aspect of fraud had been noticed appropriate action had been taken. Having regard to such submissions learned APP Mr. Raval would request this Court to reject the present application. 6. In rejoinder learned Advocate Ms. Having regard to such submissions learned APP Mr. Raval would request this Court to reject the present application. 6. In rejoinder learned Advocate Ms. Bhatt for the applicants would submit that while the first informant and the authorities concerned are questioning the appointment of the present applicants but the fact remains that there is no dispute with regard to the qualification of the present applicants and whereas, according to learned Advocate Ms. Bhatt the present applicants were more meritorious than the persons whose name were found in the select list. Learned Advocate Ms. Bhatt would further submit that insofar as the termination orders are concerned Writ Petitions have been preferred before this Court and whereas, notice has been issued by a learned Co-ordinate Bench. Having regard to such submissions learned Advocate Ms. Bhatt would request this Court consider releasing the present applicants on pre-arrest bail 7. Having heard the learned Advocates for the parties, the following aspects are considered by this Court : [1] It appears that while the appointment, which is now been termed as fraudulent appointment of the applicants, happened in the year 2010, the same had continued till order dated 06.10.2022 when the applicants have been terminated from the service. [2] It also appears that the allegation by the first informant being that the applicants were inducted into service fraudulently, is an aspect which would be dealt with appropriately by the learned Trial Court at the stage of trial but at the same time, it also requires to be mentioned that such alleged fraudulent appointments had continued for 12 long years and whereas, it does not appear from the FIR that till very recently i.e. till filing of the FIR the respondents were not aware about the allegations against the applicants. [3] It also appears that in the year 2018 the respondents had issued a departmental charge sheet against the present applicants and whereas, the FIR even if considered from the year 2018 is delayed by approximately 2 years. [3] It also appears that in the year 2018 the respondents had issued a departmental charge sheet against the present applicants and whereas, the FIR even if considered from the year 2018 is delayed by approximately 2 years. [4] It also appears that the co-accused i.e. the present who had been working as the DPEO at the relevant point of time and who had issued appointment orders to the present applicants and a clerk of the department who is also alleged to have connived with the applicants and the other accused, have been granted pre-arrest bail by learned Co-ordinate Bench and whereas, it does not appear that the state has questioned such orders before the Hon’ble Apex Court. [5] This Court has also taken in to consideration the fact that the entire evidence against the present applicants would be based on documents, more particularly, considering the allegation that the appointment of the applicants is termed as fraudulent. [6] Considering the same and also considering that all the documentary evidence would be with the State Authorities, in the considered opinion of this Court this Court would not deemed it appropriate and does not see any reason why the applicants ought to under go custodial interrogation. [7] This Court has also taken into consideration the fact that the applicants before this Court are lady accused, aged around 33 - 34 years, having no antecedents of being involved in any criminal activities. 8. In this view of the matter and considering the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694 , this Court is inclined to consider this application. 9. 8. In this view of the matter and considering the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694 , this Court is inclined to consider this application. 9. In the result, the present application is allowed by directing that in the event of applicants herein being arrested pursuant to the FIR No. 11209016220426 of 2022 registered with Himmatnagar “A” Division Police Station, District Sabarkantha, the applicants shall be released on bail on furnishing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) each with one surety of like amount, on the following conditions : (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at the concerned Police Station on 18.10.2022 between 11:00 a.m. and 2:00 p.m.; (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the Police; (e) shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change his residence till the final disposal of the case or till further orders; (f) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week. 10. Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicants to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. The applicants shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. The applicants shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if ultimately granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicants, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicants on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.