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2022 Supreme(Guj) 1816
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
HEMANT M. PRACHCHHAK, J.
Gajendrasinh Ambasinh Rathod – Appellant
Versus
State Of Gujarat – Respondent
R/Criminal Misc. Application No. 15594 of 2020
Decided on : 29-11-2022
Advocate Appeared:
For the Appellant : MR NK MAJMUDAR
For the Respondent: MS CM SHAH Appellant
A person avoiding arrest, especially in serious criminal cases, may not be entitled to anticipatory bail.
Headnote:
Anticipatory Bail - Scam under MANREGA Scheme - Code of Criminal Procedure, 1973 - Sections 406, 465, 467, 468, 471, 420, 409, 120(B) - Criminal Appeal No. 1209 of 2021
Fact of the Case:
The applicant sought anticipatory bail in connection with an FIR for offences under various sections of the Indian Penal Code related to a scam under the MANREGA scheme. The applicant claimed to have a supervisory role and denied direct involvement in the fraudulent activities.
Finding of the Court:
The court found that the applicant, a government officer, was avoiding arrest and declared him an absconder. Citing a recent decision of the Hon’ble Apex Court, the court held that a person avoiding arrest may not be entitled to anticipatory bail.
Issues: The main issue was whether the applicant, accused of serious offences related to a government scheme, was entitled to anticipatory bail despite avoiding arrest.
Ratio Decidendi: The court relied on the recent decision of the Hon’ble Apex Court in Criminal Appeal No. 1209 of 2021, which emphasized that a person declared as an absconder may not be entitled to anticipatory bail.
Final Decision: The court dismissed the application for anticipatory bail, discharged the rule, and vacated the interim relief. The request to extend the interim relief was also rejected.
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. 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 ou
