Hardik S/O Pravinkumar Patel vs State Of Gujarat
2023 Latest Caselaw 3631 Guj

   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

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                       HARDIK S/O PRAVINKUMAR PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR HIMANSU M PADHYA(1611) for the Applicant(s) No. 1
MR. MANAN MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 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

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

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

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:-

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

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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

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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

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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

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