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2022 DIGILAW 1652 (GUJ)

Gajendrasinh Ambasinh Rathod v. State Of Gujarat

2022-11-29

HEMANT M.PRACHCHHAK

body2022
JUDGMENT : 1. This is an application by the applicant under Section 438 of the Code of Criminal Procedure, 1973 for anticipatory bail in the event of his arrest in connection with FIR No. 11195003200606 of 2020 registered with Amirgadh Police Station, Banaskantha for offence under Sections 406, 465, 467, 468, 471, 420, 409, 120(B) etc. of the Indian Penal Code. 2. As per the FIR, the applicant herein in collusion with other co-accused has scammed government’s money under the scheme of MANREGA by doing illegal, inappropriate and invalid activities. Pursuant to which FIR No. 11195003200606 of 2020 came to be lodged with Amirgadh Police Station, Banaskantha for alleged offence committed by the applicant and other co-accused. 3. I have heard Mr. N.K. Majmudar, learned Counsel appearing for the applicant and Ms. C.M. Shah, learned APP for the respondent No. 1 State of Gujarat and I have also perused the material available on record of the application including the decision of the Hon’ble Apex Court rendered in Criminal Appeal No. 1209 of 2021. 4. Mr. Majmudar, learned Counsel for the applicant has submitted that the applicant is Talali-cum-Mantri and therefore, it is not in his domain. He further submitted that the applicant is only supervising the activity carried out by the Gram Sevak under the supervision of Gram Sevak. He has further submitted that the applicant has not made any payment in the MANREGA Scheme and the payment has been made by the Gram Panchayat members and the person who has given powers under the Scheme. He has also submitted that under the scheme, his duty is only to assist the Gram Panchayat and therefore, the applicant has not played any role in the alleged offence of fraudulent act committed by the Gram Panchayat under the MANREGA Scheme. Mr. Majmudar, learned Counsel for the applicant has submitted that in view of the above facts, present applicant may be released on anticipatory bail. 5. Ms. C.M. Shah, learned APP for the respondent No. 1 State of Gujarat has submitted that looking to the gravity of offence and the evidence, the offence is very serious in nature and therefore, anticipatory bail may not be granted to the applicant. 6. I have gone through the order of the learned Trial Court. 5. Ms. C.M. Shah, learned APP for the respondent No. 1 State of Gujarat has submitted that looking to the gravity of offence and the evidence, the offence is very serious in nature and therefore, anticipatory bail may not be granted to the applicant. 6. I have gone through the order of the learned Trial Court. It appears that while rejecting the application of the present applicant for anticipatory bail, learned Trial Court in paragraph No. 6 has declared present applicant as an absconder and the proceedings under Section 70 of the Cr. P.C. has been initiated since long and the application was rejected in 2020. Being Government Officer applicant is avoiding his arrest which is on record. Considering the recent decision of the Hon’ble Apex Court in case of Prem Shankar Prasad vs. The State of Bihar and another in Criminal Appeal No.1209 of 2021, Hon’ble Apex Court has clearly mentioned that in case of the person who is avoiding the arrest he may not be entitled to get any protection under Section 438 of the Cr.P.C. In the said decision the Hon’ble Apex Court in case of Prem Shankar Prasad (supra) in paragraph No. 7.2 and 7.3 has held as under:- “7.2 Despite the above observations on merits and despite the fact that it was brought to the notice of the High Court that respondent No.2 – accused is absconding and even the proceedings under sections 82-83 of Cr.PC have been initiated as far as back on 10.01.2019, the High Court has just ignored the aforesaid relevant aspects and has granted anticipatory bail to respondent No.2 – accused by observing that the nature of accusation is arising out of a business transaction. The specific allegations of cheating, etc., which came to be considered by learned Additional Sessions Judge has not at all been considered by the High Court. Even the High Court has just ignored the factum of initiation of proceedings under sections 8283 of Cr.PC by simply observing that “be that as it may”. The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually. The aforesaid relevant aspect on grant of anticipatory bail ought not to have been ignored by the High Court and ought to have been considered by the High Court very seriously and not casually. 7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail. In paragraph 14 to 16, it is observed and held as under: “14. In order to answer the above question, it is desirable to refer to Section 438 of the Code which reads as under: “438. In paragraph 14 to 16, it is observed and held as under: “14. In order to answer the above question, it is desirable to refer to Section 438 of the Code which reads as under: “438. Direction for grant of bail to person apprehending arrest.—(1) Where any person has reason to believe that he may be arrested on accusation of having committed a nonbailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely— (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.” The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. 15. In Adri Dharan Das v. State of W.B. [ (2005) 4 SCC 303 ] this Court considered the scope of Section 438 of the Code as under : (SCC pp. 311-12, para 16) “16. 15. In Adri Dharan Das v. State of W.B. [ (2005) 4 SCC 303 ] this Court considered the scope of Section 438 of the Code as under : (SCC pp. 311-12, para 16) “16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has ‘reason to believe’ that he may be arrested in a non bailable offence. Use of the expression ‘reason to believe’ shows that the belief that the applicant may be arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’ for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the court concerned to decide whether a case has been made out for granting of the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail ‘whenever arrested for whichever offence whatsoever’. Such ‘blanket order’ should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. Normally a direction should not issue to the effect that the applicant shall be released on bail ‘whenever arrested for whichever offence whatsoever’. Such ‘blanket order’ should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual's liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of the legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.” 16. Recently, in Lavesh v. State (NCT of Delhi) [ (2012) 8 SCC 730 ], this Court (of which both of us were parties) considered the scope of granting relief under Section 438 visàvis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under : (SCC p. 733) “12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as ‘absconder’. Normally, when the accused is ‘absconding’ and declared as a ‘proclaimed offender’, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.” It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.” Thus the High court has committed an error in granting anticipatory bail to respondent No.2 – accused ignoring the proceedings under Section 8283 of Cr.PC.” 7. In view of the above observations by the Hon’ble Apex Court in case of Prem Shankar Prasad (supra) and considering the allegations made in the FIR, the charge against present application is serious in nature and since he is avoiding his arrest, the applicant is not entitled to get the protection under Section 438 of Cr. P.C. 8. Considering the above discussion and overall facts and circumstances of the case, present application does not deserve to be entertained and the same is required to be rejected. 9. Hence, present application is hereby dismissed. Rule is discharged. Interim relief granted earlier stands vacated forthwith. 10. At this stage, Mr. Majmudar, learned Counsel for the applicant has requested to extend the interim relief granted earlier by this Court for the period of 3 weeks. 11. Considering the fact that since 2020, the applicant was avoiding his arrest and considering the seriousness of the charges leveled against present applicant, the request made by the learned advocate for the applicant is hereby rejected.