Dismissed

Pushpa Prakash Patil and Ors. v. the State of Mah and Anr.

Bombay HC10 Feb 2012APPLN/52/2012

Case brief

AI extract

What is this about?

The High Court of Bombay at Aurangabad rejected an application for anticipatory bail filed by former corporate officials. The court held that despite allegations of political malice, the FIR discloses a prima facie case of serious offences committed in public life involving breach of trust, negating the necessity of pre-arrest bail.

What did the court decide?

Application for anticipatory bail rejected; Rule discharged.

Pushpa Prakash Patil and Ors. Vs the State of Mah and Anr. — Corruption | Bombay HC (2012)

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CriApln52/12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 BENCH AT AURANGABAD

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 CRIMINAL APPLICATION NO. 52 OF 2012

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1 Mrs. Pushpa w/o Prakash Patil, Age 52 Applicants years, Occupation Household, R/o Plot No. 1, Sane Guruji Colony, Jalgaon, District Jalgaon

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2 Chatrabhuj Soma Sonawane, Age 48 years, Occupation Business, R/o Shani Peth, Jalgaon, District Jalgaon

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3 Laxmikant Tukaram Chaudhary, Age 44 years, Occupation Business, R/o Tukaramwadi, Zilla Peth, Jalgaon, District Jalgaon

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V E R S U S

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1 The State of Maharashtra, Through Respondent Additional Superintendent of Police and Investigating Officer, Jalgaon, District Jalgaon

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2 The Superintendent of Police, Jalgaon, District Jalgaon

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 Shri P.M. Shah, Senior Advocate with
Shri Mukul Kulkarni, Advocate for the applicants
Shri P.P. Chavan, Special P.P. for respondents / State

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AND

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CRIMINAL APPLICATION NO.475 OF 2012

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Arif Sharifoddin Shaikh

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Applicant

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V E R S U S

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The State of Maharashtra &
Ors.

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Respondent

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Shri S.B. Talekar, Advocate for the applicant
Shri P.P. Chavan, Special P.P. for respondent / State

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WITH

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CRIMINAL APPLICATION NO.208 OF 2012

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Narendra Bhaskarrao Patil

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Applicant

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V E R S U S

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The State of Maharashtra &
Ors.

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Respondent

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Shri Shailesh P. Brahme, Advocate for the applicant
Shri P.P. Chavan, Special P.P. for respondent / State

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 CORAM : A. H. JOSHI, J.
 DATED : 10TH FEBRUARY, 2012

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JUDGMENT :

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1.Rule. Rule is made returnable forthwith and is

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heard by consent.

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2.The applicants in Criminal Application Nos. 475
of 2012 and 208 of 2012 have prayed for leave to assist
the learned Special Public Prosecutor. In view of nature
of contest, both the applications are allowed.

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3.Criminal Application No. 52 of 2012 is for

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anticipatory bail.Applicants are three in number. They

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have been named as accused along with many other in Crime

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No. 13 of 2006, registered with Jalgaon City Police
Station, under Sections 409, 468, 120-B of the Indian
Penal Code, and under Sections 13 (1) (d) of the
Prevention of Corruption Act.

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Heard learned Senior Advocate Shri P.M. Shah,
learned Special Public Prosecutor and both learned
Advocates, who have appeared to assist the prosecution.

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4.Learned Senior Advocate Shri P.M. Shah

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appearing for the applicants addressed following
submissions in support of the prayer :-

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(a) The F.I.R. lodged by Commissioner of the Municipal Corporation Jalgaon, it is actuated with mala fides and is propelled politically.

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(b) The applicant No. 2 was a Mayor. Decisions taken or orders passed by the applicant No. 2 were in anticipation of approval of General body ¼ mesn ekU;rsus ½ .

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(c)No decision was taken by any individual, the
Mayor or by other corporator, applicants in
personal capacity.

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(d)All decisions of applicant No. 2 were
approved or ratified by General Body and the
General Body had never expressed any grudge or
demour about these decisions.

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(e) The incident of proposing the scheme and
invitation of tenders, all cannot by any
permutation be regarded as decisions or actions
which were actuated with intention to defraud
the council.

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(f) The function undertaken by the corporators
is in exercise of its executive function as the
local self government, and is based on
collective wisdom.

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(g) The work of governance is not, nor can it
be done with finest arithmetical or mechanic
precision.

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(h)The executive business always needs
flexibility and latitude for moulding as
regards the process of decision making.

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(i) The work by the Municipal Corporation
Jalgaon relating to housing complexes for slum
dwellers done in past and was appreciated for
its quality and magnitude. Even now the work
is in progress.

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(j)Advances given to contractors are given to

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expedite the work and against work done or
material brought on the site. Therefore, the
interest of Corporation is not jeopardised.

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(k)The contracts are subsisting and the
contractors would be willing to refund the
advances taken by them in lump sum if need
arises, apart that part of advance is being
recouped by proportionate deduction from each
running account bill.

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(l)Two successive general elections of
Corporation took place after the decision/
action complained of were taken. Two newly
elected general bodies of Corporation were
elected and have entered the office in
succession. None amongst the general bodies
have discontinued the work, already commenced,
or have revoked any work yet not commenced.
Nobody had found fault with the decision and/or
the work.

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(m) The scheme for housing of slum dwellers is duly backed by the State Government. The loan of HUDCO was counter guaranteed by the Government. Good faith and bona fides will have to be presumed when such Governmental support is vivid.

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(n)The applicants have been in conflict with
the police and the police have a grudge against

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them though there is no fault on their part.

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(o) Custodial interrogation of the applicants
is not necessary for any purpose whatsoever.

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(p)Entire information pertains to record of
the Corporation, and is available for the
investigationwithoutanyimpediment.
Therefore, arrest is totally unwarranted.
Therefore, the applicants are entitled for the
relief of anticipatory bail.

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5.Learned Special Public Prosecutor has read over
the F.I.R. and urged that :-

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(a)Subject matter work being based on a
policy decision of the Government, does not
absolve the Mayor and Corporators of their
statutory duty of discharge of trust and duties
under law.

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(b)The protection and safeguard of interest
of Corporation is not seen by the accused /
applicants and their deliberate dereliction has
resulted in positive acts of breach of trust.

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(c)The accused were fully aware, that work of
dwelling being of very large magnitude, cannot
be completed within nine months. Despite this
the accused persons have altered the condition

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as regards duration of work and prescribed that
it to be completed within nine months.

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(d)This alteration and fixing period of
completion to nine months was aimed at
eliminating fair competition and confining the
entry of bidders in the competition aiming to
chosen few, and having a pre-conceived design
of gain.

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(e)Duration was reduced to nine months
knowing fully well that many sites amongst
proposed locations may not be actually
available for handing over to contractors.

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(f)Initially by altering the condition as to
time limit number of offerers were excluded
from the competition.

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(g)After number of persons/contractors in the
field were minimised to those chosen few, the
terms and conditions as regards specification
and site of works were changed at the dictate
of contractor.

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(h)After change in specification of work re-
tendering procedure was not resorted, which
ought to have been ordinary procedure and need
of fairness. The accused have allotted the work
to those chosen contractors, adverse and
hostile to the interest of the Corporation.

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(i)The actions taken by the accused persons
are actuated at design of personal gain by
benefitting the contractors.

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(j) The disbursement of advances repeatedly made indicate nothing except lack of good faith, mala fides and breach of trust by parting with the fund/property belonging to the Corporation in express violation of mandate of law.

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(k)The acts and omissions of accused are all
aimed at and result in criminal breach of trust
and other offences.

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6.The learned Advocates assisting the prosecution
have urged and tried to show from record that :-

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(i)The acts of granting of advances is done
contrary to the written opinion and advice
given by Engineer and Commissioner.

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(ii)Payment of advances has been done in
absence of actual measurement of work done or
material collected at site if any.

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(iii) Payment of such advances has resulted in
causing unjust and unlawful parting of
Corporation’s funds of which the accused are in

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trust.

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(iv)These payments which run in crores were
not due nor agreed, and therefore have
jeopardised the interest of Corporation.

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(v) Inquiry committee and Commission has
inquired into the matter prior as well parallel
to the investigation of offence, and have found
that the applicants are guilty.

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(vi) The findings of enquiries though not
binding at this stage would assist in arriving
at prima facie view as to whether there is case
against the applicants.

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(vii)Various inquiry committees have also
found fault with the manner of discharge of
trust, and these opinions though do not
constitute admissible evidence, material relied
by those, in the process of holding enquiry
which is the municipal record indicates at the
intention as regards breach of trust.

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7.In order to test the submissions, this Court

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has scrutinized the F.I.R. and papers placed on record
along with the petition and Criminal Applications by
those who have come forward to assist the prosecution.

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8.F.I.R. is based on a written complaint lodged

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by the Commissioner of Municipal Corporation Jalgaon. It
is a complaint drawn at length running in about six to
seven pages. Perusal of the F.I.R. reveals background and
allegations as regards the commission of offence.

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9.Reference to the one man committee report, is
to one enquiry which was conducted prior in time to the
registration of the F.I.R. The opinion expressed in the
said report or other documents are not considered by this
Court as expression or adjudication as regards the
conduct of the accused. Contents of said report do refer
to contains record and the quotations from the contents
of the official documents of the Corporation. These
contents serve the cause of reference to these documents
such as minutes, office notes, letters etc. Correctness
of these references is not disputed by the applicants.

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10.It is a common ground that a scheme for housing
for slum dwellers is sponsored by the State Government.
It is aimed at cleansing the slums by providing houses to
slum dwellings, as a part of urban development.

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11.The Municipal Corporation Jalgaon took up this
scheme. Under the said scheme, five slums notified under
the Act of 1971 were to be developed by providing housing
to the slum dwellers at different locations. Certain

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sites owned by the Government and certain sites which
were declared slum were to be used for construction of
these dwellings.

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12.The scheme was supported and sanctioned by the
Government. Funds were lent by HUDCO and said loan is
counter guaranteed by the State Government. The
implementing authority was the Municipal Corporation
Jalgaon.

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13.The process of decision making was by way of
involvement of the general body i. e. the Corporation
consisting of around 60 corporators. They were to be
guided / advised by the Municipal Engineer, the
Commissioner and the consultants in the matters of
modalities, technical matters, procedure etc.

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14.The accusation made in the F.I.R., on the basis
of which, the crime has been lodged can be summarized as

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below :-

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(i)Services of Architects were engaged
without any recourse to competitive procedure.

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(ii)Huge amount i. e. 3% of cost of work was
promised and paid etc, to the Architects
resulting into loss to the municipal funds.

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(iii)The tender process for work of housing was
carried out in violation of written opinion and
advice.

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(iv) The process of tendering was dominated by
Mayor and few corporators.

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(v)The implementation procedure was also
dominated by Mayor (respondent No. 2) and
corporators. All corporators have approved and
ratified actions taken by the Mayor and leading
corporators.

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(vi)The work was of large magnitude its
completion within nine months could not have
been estimated, yet the period of completion
was deliberately fixed by the accused to nine
months.

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(vii) The accused persons had interfered in the
tendering process, and notified the tender with

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nine months as period of completion knowing
fully well that completion within nine months
is impossible.

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(viii)Even evacuation of slum dwellers from
some of the sites required to be vacated for
commencing the work, was not possible within
nine months.

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(ix)Large number of genuine contractors where
thereby excluded from the offering as it was
impossible to complete the work within nine
months. Thus, fair competition was excluded.

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(x) Admittedly, only two tenderers came
forwards; one has submitted nine tenders for
nine works and one has submitted the tender for
only two works.

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(xi) The cost of work was shown to have been
negotiated with offerers. The reduction on
negotiation was too meager.

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(xii) The terms and description of work and
even location was varied at the dictate of
contractor.

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(xiii) After change in design any fresh
tendering was not done and work was given to
same contractor.

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(xiv) This type of procedure has resulted into
causing loss to the Corporation fund on account
of the act of excluding arrival of competitive
bids by virtue of imposition of nine months
duration.

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(xv) Advances were given without recording
measurement of work actually or verification of
material actually brought on site by the
contractors.

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(xvi) These advances were given in utter
contravention of written advice rendered by the
Engineer or by the Commissioner.

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(xvii) In these processes, the accused have
acted in such manner that by their expressed
actions they have committed breach of their
solemn duty and function of protecting and
safeguarding corporation’s fund.

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(xvii) The violation of dictate of law as
regards mode and manner of protection of
municipal fund, the accused have committed
criminal breach of trust, apart from other
offences.

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15.Now this Court has to examine and ascertain,
whether any offence is described, and its gravity, from

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the description of fact which are apparent.

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16.On facts, as emerging from F.I.R. and on what

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prima facie appears in present case can be summarised as
follows :-

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(a)The fixing of nine months time limit on
its fact is prima facie aimed at procuring gain
to chosen few contractors by eliminating fair
competition. An intention to eliminate fair
competition is vivid and obvious.

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(b)In the present case, it is seen that
proposing the conditions as to nine months
which is on the face of it impracticable, is
liable to be viewed at this stage as
potentially aimed at benefit the contractors
and cause loss to corporation.

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(c)The payment of advances contrary to the
written opinion / advice of the officers shows
disposal funds of corporation i. e. the
property in violation of the direction of law
and the mode in which the trust due to
occupation of office was to be discharged.

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(d) All these actions of accused cannot be presumed to be bona fide and based on good faith.

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(e) Lack of diligence and deliberate
derelictions/defiance of written advise and
opinion create grave shadow due to lack of good
faith, and indicates criminal intention of
breach of trust.

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17.The aspect of breach of trust will have to be
seen upon having bare look on the definition of criminal
breach of trust. Section 405 of the Indian Penal Code,
is quoted below for ready reference :-

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“405. Criminal breach of trust . - Whoever,
being in any manner entrusted with property, or
with any dominion over property, dishonestly
misappropriates or converts to his own use that
property, or dishonestly uses or disposes of
that property in violation of any direction of
law prescribing the mode in which such trust is
to be discharged, or of any legal contract,
express or implied, which he has made touching
the discharge of such trust, or wilfully
suffers any other person so to do, commits
“criminal breach of trust”.
(Underlining is added for emphasis)

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18.A bare look at Section 405 of the I.P.C.,
quoted above, reveals that criminal breach of trust is
normally read and viewed from the point of view of

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“misappropriation of property entrusted” which is due to
incomplete reading of Section 405 of I.P.C..

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19. Breach of trust also comprises of “dishonest

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disposition of property in disregard to the direction of
law prescribing the mode in which the trust is to be
discharged”.

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20.Dishonest disposition of property in violation
of direction of law which prescribes the mode in which
trust is to be discharged by any law, contract by express
or implied condition is an indelible description of
breach of trust has to be kept in mind.

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21.In this situation, the only inference which
emerges is adverse to the applicants, and there is strong
prima facie case of commission of offences by the
applicants. The offences are serious and grave being
committed in public life, and take the shape of violation
of public law..

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22.In the premises discussed hereinbefore, the
concession of anticipatory bail is not in the nature of

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licence to avoid arrest. If the police feel that arrest
is necessary, it may be effected. If the arrest is
effected, the bail is a rule, and applicants would be
entitled for it, depending on the facts and as would
convince the Court considering the merit of application
for bail.

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23.The submission that as the custodial
interrogation may not be necessary and the applicants are
entitled for anticipatory bail, by itself does not impel
grant of pre-arrest bail, to avoid a possible arrest,
when such arrest if done may be legal and permissible.

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24. The averment of applicants that there are political mala fides, does not create a licence or right in favour of the applicants that an order of anticipatory bail should essentially follow as a matter of course or a right.

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25.Applicants have to rise to a hight to have the
concession of pre-arrest bail by demonstrating that in
all probabilities their arrest could not be supported by
law. Applicants have failed to demonstrate that the

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F.I.R. is on its face false, mala fide and vindicative

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and per se illegal, and/or based on trivial matter.

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26.It is prima facie evident that commission of
offence is reasonably described. It is also seen that
the description of accusations does not seem to be by way
of bare abuses. The accusations are based on documentary
evidence. These pieces of evidence cannot be branded at
this stage as fictitious or craft work, and accusations
cannot be branded as false or vexatious. The accusations
are grave and serious, and relate to public life.

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27.Therefore, the present application does not
have merit to grant the concession of pre-arrest bail.

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28.Every application has to be decided on its own
merits without being affected by the status of a person.
These applicants being corporators or former mayor or
that they have an allegation of political malice does not
weigh more than the merit of the case. The F.I.R. being
politically motivated etc. are the argument which may be
available to the the accused in the process as defence,
but it is not an all time preventive devil against the

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course of law as regards arrest.

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29.In the result, application is rejected. Rule is

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discharged.

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 ( A. H. JOSHI, J. )

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SRM/10/2/12

Pushpa Prakash Patil and Ors. v. the State of Mah and Anr.

Case brief

What is this about?

What did the court decide?

Pushpa Prakash Patil and Ors. v. the State of Mah and Anr.

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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