R/CR.MA/7429/2023 ORDER DATED: 29/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7429 of 2023
==========================================================
HARDIK S/O PRAVINKUMAR PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR HIMANSU M PADHYA(1611) for the Applicant(s) No. 1
MR. MANAN MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 29/04/2023
ORAL ORDER
1. By way of the present application under section 438 of the Criminal Procedure Code, the applicant has prayed for the following reliefs:-
A) This Hon'ble Court may kindly be pleased to admit and allow this application.
B) This Hon'ble Court may kindly be pleased to release the applicant on anticipatory bail on any conditions, in the event of his arrest by Sector-7 Police Station in connection with the preliminary investigation/ inquiry that is going on and under progress with the Finance Department for the Grant received by the Government of Gujarat from Government of India under Integrated Diseases Surveillance Programme (IDSP) and National Viral Epidemic Control Programme (NVECP) under the guidelines of NATIONAL HEALTH MISSION of CENTRAL GOVERNMENT.
C) Pending admission, hearing and final disposal of this Page 1 of 9 Downloaded on : Tue May 02 20:40:36 IST 2023 R/CR.MA/7429/2023 ORDER DATED: 29/04/2023 petition, this Hon'ble Court may kindly be pleased to released on interim bail pending this petition.
D) This Hon'ble Court may kindly be pleased to pass such other and further relief/s that may be deemed fit and proper in the facts and circumstances of the case.
2. On perusal of the aforesaid prayers, it appears that the same is not made in respect of any particular FIR having been registered or a complaint having been filed before any Court of law and the entire application is based on an apprehension of the applicant that in view of the earlier FIR registered against the present applicant, now there is likelihood that another FIR also will be registered.
3. Learned advocate Mr. Himanshu M. Padhya appearing for the applicant relied upon the judgment of five Judges Bench of the Hon'ble Supreme Court in case of Shushila Agrawal V/s State (NCT of Delhi) reported in 2020 (5) SCC 1 and submitted that anticipatory bail can be filed even if there is no FIR and on the basis of apprehension also such application is maintainable.
4. Learned advocate Mr. Padhya also pointed out that similar view was taken by the Hon'ble Supreme Court in case of Page 2 of 9 Downloaded on : Tue May 02 20:40:36 IST 2023 R/CR.MA/7429/2023 ORDER DATED: 29/04/2023 Gurbaksh Singh Sibbia Etc. V/s State of Punjab reported in 1980 2 SCC 565 and therefore, though today there is no FIR, he is seeking anticipatory bail in respect of his apprehension of getting arrested pursuant to the apprehension as earlier he was arrested in connection with one FIR and he apprehends that in furtherance of the aforesaid FIR as the investigation is going on, the applicant will be arrested once again.
5. Learned advocate Mr. Padhya submitted that earlier that the present applicant was Finance Consultant on contract basis under the National Viral Epidemic Control Programme. One scam in respect of financial irregularities was noticed and FIR being C. R. No. 11216008220157 of 2022 was registered with Gandhinagar Sector 7 Police Station, Dist. Gandhinagar for the offences punishable under sections 406, 409, 465, 467, 468, 471, 170, 120 (B) of the Indian Penal Code against the present applicant and other persons. Pursuant to that FIR, the present applicant was arrested in respect of 11 fictitious transactions involving sum of Rs. 11,13,48,400/- as it was alleged that the present applicant opened a fake account in the name of Gujarat Page 3 of 9 Downloaded on : Tue May 02 20:40:36 IST 2023 R/CR.MA/7429/2023 ORDER DATED: 29/04/2023 Sikle Sale Animia Society and transferred the aforesaid amount in the account of that Society.
6. Pursuant to the aforesaid FIR, the investigation was carried out and charge-sheet was filed and present applicant was released on regular bail vide order dated 10.11.2022 passed in Criminal Misc. Application No18543 of 2022 with Criminal Misc. Application No. 19090 of 2022 and as per the say of learned advocate Mr. Padhya, this Criminal Misc. Application No. 19090 of 2022 was preferred by the present applicant.
7. As the FIR for which the present applicant was arrested was filed in respect of financial irregularities carried out between a period from 31.12.2021 till 22.04.2022, now the applicant apprehends that for a period prior to that period as the investigation is going on at present, he shall be arrested once again and therefore, he has preferred this application for anticipatory bail on the basis of apprehension.
8. Learned advocate Mr. Padhya appearing for the applicant had made following submissions:-
Page 4 of 9 Downloaded on : Tue May 02 20:40:36 IST 2023 R/CR.MA/7429/2023 ORDER DATED: 29/04/2023 (1) The applicant was already arrested in respect of offence of similar nature for the period from 31.12.2021 to 22.04.2022.
(2)The applicant has already resigned from the Department.
9. This is the only submission that was made by learned advocate Mr. Padhya for the applicant, except for the aforesaid submissions, no other submissions were made by learned advocate Mr. Padhya.
10. Learned APP appearing for the respondent - State vehemently opposed this application and submitted in respect of the aforesaid FIR that it was filed for financial irregularities committed in the year 2020-2021 and 2021-2022 and amount involved in the earlier FIR was Rs. 11,13,48,400/-.
11. The allegations against the present applicant was of opening fictitious account and transferring the aforesaid amount in that account for which the applicant was arrested Page 5 of 9 Downloaded on : Tue May 02 20:40:36 IST 2023 R/CR.MA/7429/2023 ORDER DATED: 29/04/2023 and subsequently, was bailed out by the Coordinate Bench of this Court.
12. Learned APP submitted that audit in respect of previous year i.e. 2019-2020 and 2020-2021 is going on and during special audit, it is found that further financial irregularity to the tune of Rs. 3,49,14,368/- has also been done.
13. Considering the fact that this is in respect of the earlier financial year and as the present applicant resigned only in the month of June, 2021, the present financial irregularity is related to the period during which the present applicant was serving, there may be possibility that the present applicant was directly and actively involved in the aforesaid financial irregularity and therefore, though today, the investigation is going on and statements of certain persons are being recorded since, the present applicant has preferred this application for anticipatory bail at this stage, it would be too early to say anything about whether the applicant's custodial interrogation would be required or not as the investigation is not over but Page 6 of 9 Downloaded on : Tue May 02 20:40:36 IST 2023 R/CR.MA/7429/2023 ORDER DATED: 29/04/2023 considering the fact that the period for which the investigation is going on and amount of financial irregularity is running almost of Rs. 3,50,00,000/-, the present application may be dismissed as for a period for which the investigation in respect of financial irregularities is going on is the period during the present applicant was serving in the department and was holding the post of consultant finance and therefore, considering the post of the present applicant and as the present applicant, prima facie, seems to have exercised the powers beyond his jurisdiction and hence, this application may be dismissed.
14. I have heard learned advocates for the respective parties and perused the record. It is true that in respect of earlier FIR, the present applicant was arrested and he was enlarged on bail. However, what is noteworthy is the fact that the present applicant has resigned only in the month of June, 2021 and the earlier FIR covers the period from December, 2021 to April, 2022 whereas in respect of the present incident as per the affidavit of Investigating Officer filed before the Sessions Page 7 of 9 Downloaded on : Tue May 02 20:40:36 IST 2023 R/CR.MA/7429/2023 ORDER DATED: 29/04/2023 Court, the investigation is going on in respect of period from 2020-2021 and 2021-2022 as the applicant was serving during that period as Consultant Finance and earlier FIR was in respect of only 11 transactions whereas subsequently, during special audit, it was revealed that in all 93 transactions whereby financial irregularity was committed have been noticed by the Investigating Agency. Further considering the fact that the present applicant was in active service before June, 2021 and the special audit was also carried out in respect of the aforesaid period which is prior to June, 2021 as well as considering the fact that though the investigation is still going on and FIR is not registered even during this period as many as 93 financial transactions which have been carried out by the present applicant to commit financial irregularity and syphoning off the amount has been noticed by the Investigating Officer, I do not see any reason to grant anticipatory bail to the present applicant as the investigation is going on and as there is likelihood that at the end of the investigation everything would be cleared as well including Page 8 of 9 Downloaded on : Tue May 02 20:40:36 IST 2023 R/CR.MA/7429/2023 ORDER DATED: 29/04/2023 the amount involved during the period during which the present applicant has served and therefore, the present application is required to be dismissed and the same is dismissed.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 9 of 9 Downloaded on : Tue May 02 20:40:36 IST 2023