Partly allowed

State of Maharashtra through Additional Supdt. of Police (Anti Corruption Bureau) Nagpur v. Durga Singh S/O Shri Chunnilalji Nagbhirey

Bombay HC28 Sept 2012APPLN/40/2012

Case brief

AI extract

What is this about?

The State filed applications to cancel anticipatory bail granted to three forest officials accused of forgery and corruption. The court rejected the applications, holding that no materials proved collusion regarding the deceased's identity and the officials were not obligated to know identity during routine duties.

What did the court decide?

The applications by the State for cancellation of bail under Section 438 CrPC are rejected and the bail orders are upheld.

State of Maharashtra through Additional Supdt. of Police (Anti… — Corruption | Bombay HC (2012)

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1 appln40,42,43,10.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, AT NAGPUR

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CRIMINAL APPLICATION NO.40 OF 2012

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(State of Maharashtra, through Addl. Superintendent of Police, Anti Corruption Bureau, Nagpur through PSO, PS Seloo, District Wardha ..vs.. Durga Singh Chunnilalji Nagbhirey)

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WITH

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CRIMINAL APPLICATION NO.42 OF 2012

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(State of Maharashtra, through Addl. Superintendent of Police, Anti Corruption Bureau, Nagpur through PSO, PS Seloo, District Wardha ..vs.. Arvind Nanaji Rajmalwar)

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WITH

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CRIMINAL APPLICATION NO.43 OF 2012

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(State of Maharashtra, through Addl. Superintendent of Police, Anti Corruption Bureau, Nagpur through PSO, PS Seloo, District Wardha ..vs.. Vivek Yashwantrao Khandekar)

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- - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders

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- - - - -- Mr. S.S. Doifode, Addl.P.P. for the applicant/State, Mr. M.P. Badar, Advocate for the non-applicant. (In Criminal Application No.40/2012)

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Mrs. S.S. Jachak, Addl.P.P. for the applicant/State, Mr. P.D. Meghe, Advocate for the non-applicant. (In Criminal Application No.42/2012)

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Mr. J.B. Jaiswal, Addl.P.P. for the applicant/State, Mr. A.S. Mardikar, Advocate for the non-applicant. (IN Criminal Application No.43/2012)

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CORAM : M.L.TAHALIYANI, J. DATED : 28-09-2012.

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These applications are filed by the State for cancellation of bail granted to the non-applicants by the learned Additional Sessions Judge-2, Wardha under Section 438 of the Criminal Procedure Code. The non-applicants are accused in First Information No.12/2012 of Seloo Police Station, District Wardha for the offences punishable under Sections 420, 468 and 471 read with Section 34 of the Indian Penal Code and they are also accused for the offence punishable under Section 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988. Non-applicant Durga

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Singh Nagbhirey in Criminal Application No.40/2012 was working as Assistant Conservator of Forest, non-applicant Arvind Rajmalwar in Criminal Application No.42/2012 was working as Forester and non-applicant Vivek Khandekar in Criminal Application No.43/2012 was working as Deputy Conservator of Forest at the time of alleged offence.

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The facts of the case in brief are that one Govinda Waskar was having a field where there were about 225 teak trees. He has one brother by name Nathu Waskar. Govinda Waskar died on 18^th October, 2005. His brother Nathu Waskar posing himself to be Govinda Waskar applied for selling the said teak trees. After necessary legal formalities under the Maharashtra Feeling of Trees (Regulation) Act, 1964 and other provisions of law, permission was granted for cutting of trees. It is alleged that said Nathu Waskar had cut the trees and sold the same to one Kesharwani who is accused in the case. In the meantime, legal heirs of Govinda Waskar came to know about the activities of Nathu Waskar and they intervened in the matter. The dispute was ultimately settled between the legal heirs of Govinda Waskar and Nathu Waskar and no complaint was lodged against anybody.

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The present First Information Report was registered by Ms. Devki Uike, Deputy Superintendent of Police, Ante Corruption Bureau on the basis of certain information. After registration of offence, the investigation continued. During the course of investigation, it was revealed that non-applicant Durga Singh Nagbhirey in Criminal Application No.40/2012 had prepared a passing report in respect of said 225 teak trees. The passing report is in a prescribed proforma and is admittedly signed by non-

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3 appln40,42,43,10.odt

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applicant Durga Singh Nagbhirey in Criminal Application No.40/2012. This passing report is a kind of verification report. Non-applicant Arvind Rajmalwar in Criminal Application No.42/2012 had prepared spot panchanama of the spot where the said 225 teak trees were standing. This document is also admitted by non-applicant Arvind Rajmalwar. Non-applicant Vivek Khandekar in Criminal Application No.43/2012 was working as Deputy Conservator of Forest. He had granted transit passes for transportation of the said cut trees.

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It is the case of State that it is in pursuance of conspiracy of these three non-applicants and non-applicant in Criminal Application No.41/2012 Mr. Avinash Ghonmode, who was working as Range Forest Officer, that the trees standing on the field of Govinda Waskar were cut on the basis of forged documents prepared by the non-applicants and the other accused. It is submitted by learned Additional Public Prosecutors Mr. S.S. Doifode, Mrs. S.S. Jachak and Mr. J.B. Jaiswal for the State that all the non-applicants knew well that Govinda Waskar was dead. His brother Nathu Waskar posed himself to be Govinda Waskar and all the accused in pursuance of their conspiracy to cut trees had prepared forged documents. The learned Additional Public Prosecutors have further submitted that all the non-applicants being public servants were under obligation to act honestly. However, they, in collusion with others, have dishonestly prepared false documents. It is submitted by the learned Additional Public Prosecutors that the non-applicants have committed offence of forgery and using forged document as genuine document. It is further submitted by them that the act of the nonapplicants amounts to misconduct within the meaning of

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4 appln40,42,43,10.odt

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Section 13(1)(d) of the Prevention of Corruption Act, 1988, which is punishable under Section 13(2) of the said Act.

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The learned Counsel for the non-applicants have submitted that none of the non-applicants knew that Govinda Waskar was dead. It is submitted by learned Counsel Mr. Badar on behalf of non-applicant Durga Singh Nagbhirey in Criminal Application No.40/2012 that the said non-applicant had prepared a passing report. Mr. Badar has also submitted that it was not necessary for the owner of trees to remain present when the passing report was prepared. It is also submitted by him that the non-applicant was not supposed to know the owner of trees personally by name or face.

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Similar arguments have submitted on behalf of the other two non-applicants in Criminal Application Nos.42/2012 and 43/2012. It is submitted by Mr. P.D. Meghe on behalf of non-applicant Arvind Rajmalwar in Criminal Application No.42/2012 that the non-applicant had prepared the spot panchanama of the place from where trees were to be cut. He was also not supposed to know the owner personally by name or face. As far as non-applicant Vivek Khandekar in Criminal Application No.43/2012 is concerned, it is submitted by Mr. A.S. Mardikar that he was working as Deputy Conservator of Forest and he had issued transit pass for transportation of cut trees only on the basis of the papers placed before him. After all the papers were found in order, he was under obligation to issue the transit pass. He did not know the fact that owner Govinda Waskar was dead. It is also submitted that in fact this non-applicant had joined the duties only after the alleged incident in question.

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The learned Additional Public Prosecutors have submitted that not only the non-applicants have obtained pecuniary advantage for themselves but they have obtained pecuniary advantage for accused Kesharwani also. The learned Additional Public Prosecutors have also submitted that though there is no direct evidence to show that pecuniary advantage was obtained, the circumstances clearly indicate that the acts were done in order to obtain pecuniary advantage. The learned additional Public Prosecutors have also submitted that it is a clear case of conspiracy on the part of the non-applicants and others.

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Though the learned Sessions Judge has not considered the case of investigating agency properly and has not paid attention to all the facts of the case, the fact remains that the non-applicants were not supposed to know the deceased Govinda Waskar. There is no material on record direct or indirect to suggest that the non-applicants knew that Govinda Waskar was dead and that they were in collusion with Nathu Waskar. Moreover, further investigation of the case can be carried out without custody of the non-applicants. In addition to this, it may be mentioned that the consideration for grant of bail are always different from the consideration for cancellation of bail.

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In the circumstances, in my opinion, no case is made out for cancellation of bail granted to the nonapplicants by the learned Additional Sessions Judge. The applications submitted by the State for cancellation of bail granted under Section 438 of the Criminal Procedure Code are rejected.

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The applications are disposed of accordingly.

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JUDGE

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pma

State of Maharashtra through Additional Supdt. of Police (Anti Corruption Bureau) Nagpur v. Durga Singh S/O Shri Chunnilalji Nagbhirey

Case brief

What is this about?

What did the court decide?

State of Maharashtra through Additional Supdt. of Police (Anti Corruption Bureau) Nagpur v. Durga Singh S/O Shri Chunnilalji Nagbhirey

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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