NAHEED ARA MOONIS, J. - (1.) HEARD the learned Senior Counsel Sri V.P. Srivastava assisted by Sri Vijay Shanker Mishra and Sri Rahul Mishra, Advocate for the applicant, the learned counsel for the C.B.I. Sri Anurag Khanna who have taken through the record.
(2.) THE instant bail application has been moved by Sachchidanand Dubey with a prayer to release him on bail in R.C. No.1202011A0004, under Section 120 -B read with Sections 409 and 420 I.P.C. and under Section 13 (2) read with Section 13 (1) (d) Prevention of Corruption Act, 1988, police station CBI, ACB, Kotwali, district Ghaziabad.
(3.) IT is submitted by the learned counsel for the applicant that the first information report was lodged by one Sanjay Mishra, Supply Inspector, Food Department, Mainpuri against the five accused persons, namely, Raghuveer Singh the then Basic Shiksha Adhikari, Mainpuri, Krishna Dev, the present Basic Shiksha Adhikari, Mainpuri, Vishnu Dayal, Clerk, Prashant Mishra, District Coordinator and Vivek Sudarshan, Secretary of N.G.O. on 24.4.2011 registered as case Crime No. 900 of 2011, under sections 420 and 120 -B I.P.C. and under Section 3 (7) Essential Commodities Act. The applicant was not named in the first information report. Vivek Sudharshan one of the accused in the aforesaid case challenged the recovery proceeding before this court and in the said writ petition a direction was issued to the Director of Central Bureau of Investigation to conduct a preliminary enquiry. The aforesaid case was transferred to Central Bureau of Investigation who lodged a report on 18.8.2011 as R.C. 1202011A0004, under Sections 420 and 120 -B I.P.C. read with Section 13 (2) and Section 13 (1) (d) Prevention of Corruption Act, 1988 (hereinafter to as the 'Act) at police station C.B.I. A.C.B., district Ghaziabad wherein the name of the applicant was also included besides nine other persons in respect of their involvement. The scheme of mid day meal was started by the Government of U.P. in 16 districts on 25.6.2004. In pursuance of the government order dated 8.9.2004, mid day meal scheme in district Mainpuri started since October 2004, which was initially launched through local body like Gram Panchayat, School Headmaster in rural area and in urban area through Parishad, Sabhasad and the concerned school. The Central government through Food Corporation of India provided food grains for mid day meal scheme to the concerned district authorities for serving mid day meal to the school children free of cost. NGO M/s. Search (Society for Science and Environment Awareness Research communication and Heritage run by Sri Vivek Sudershan who was its Secretary was awarded work for serving mid day meal from the District Magistrate, Mainpuri. The applicant who was posted as District Magistrate, Mainpuri during the period 18.6.2009 till 7.2.2011 when the scheme was in operation in only six blocks, the applicant had extended the area of operation of M/s Search from six blocks to the entire district, which was consisting of nine blocks. For an effective and proper implementation of the mid day meal scheme during his tenure and being a Nodel Officer the applicant made a task force of Chief Development Officer, Basic Shiksha Adhikari and other Magistrate and the work of distribution was assigned to the Basic Shiksha Adhikari who commenced the functioning of the primary school and after completion of the work on the basis of report as the power to make payment vested in the applicant who used to make the payment. The entire allegations made in the first information report with regard to misappropriation of funds by the applicant in connivance with other persons as alleged in the first information report is absolutely false and concocted. The charge sheet has been submitted in a pedantic manner and no summons whatsoever was even served upon him, which were issued on various dates and the court below proceeded to issue warrant by order dated 12.6.2014 and when the police visited his house on 28.6.2014 he came to know about the issuance of summons and warrant and thereafter he was arrested on 19.7.2014. The applicant has already been retired from his service. There is no direct or indirect evidence that he has received any bribe for any payment or that he was in collusion with M/s Search for misappropriation of the government funds. The applicant is facing detention since 20.7.2014. There is no chance of his abscondance during trial as he is receiving pension from the State exchequer. He undertakes to appear on each and every date and cooperate with the trial. The court below has illegally rejected the bail application of the applicant while one co -accused Dinesh Chand Shukla who was the predecessor of the applicant as District Magistrate, Mainpuri has already been granted bail by another Bench of this court, hence the applicant also deserves to be enlarged on bail. Per contra learned counsel Sri Anurag Khanna appearing on behalf of Central Bureau of Investigation has submitted that pursuant to the first information report registered against five persons including one Vivek Sudarshan Secretary of N.G.O. named as M/s Search, the then Supply Inspector, Food Department conducted search of the godown and seized food grains, which were meant for mid day meal scheme for the period 2008 to 2011 and the District Magistrate ordered for recovery of Rs. 7,63,48,521/ - from M/s. Search. Against that order M/s. Search filed a writ petition before this Court and this Court looking into the gravity of offence directed the Central Bureau of Investigation on 30.5.2011 to conduct preliminary enquiry in respect of award of contract, utilization of funds and role of mid day meal scheme in Mainpuri district. Accordingly, a preliminary enquiry was conducted by the Central Bureau of Investigation, A.C.B. Ghaziabad who submitted a report to this court in Writ Petition no. 25920 of 2011 on 2.8.2011. Thereafter the Central Bureau of Investigation was directed to take over the investigation of Case No. 900 of 2011 registered at police station Kotwali, district Mainpuri. During preliminary enquiry the name of ten persons including the applicant was found. Thereafter a regular case was registered on 18.8.2011 and the charge sheet was submitted on 5.8.2013 before the Special Judge of Central Bureau of Investigation, Ghaziabad against 11 accused persons including the applicant. The applicant besides seven other responsible public servant had entered into conspiracy with Vivek Sudarshan Secretary of NGO M/s. Search and Ashok Chauhan and misappropriated government funds by committing cheating causing loss to the State exchequer of Rs. 6.38 crores releasing excess food grains weighing about 41691.94 quintals for wrongful gain, which amounts to gross criminal misconduct. The applicant was posted as the District Magistrate Mainpuri during the period 18.6.2009 to 7.2.2011 being a Nodal officer for mid day meal scheme in district Mainpuri, he had extended the area of operation from six blocks to the whole of the district and sanctioned payment of conversion cost to M/s Search. The release of payment was solely upon the District Magistrate. The District Magistrate was the Chairman of the District Level Committee for the supervision of mid day meal scheme who would hold minimum one meeting every month and was also supposed to inspect ten schools per month for effective implementation of the mid day meal scheme. The District Magistrate was to ensure maintenance of record in respect of expenditure, statement of utilization certificate after each quarter to mid day meal and services of local NGO's to provide mid day meal can be given only on inability expressed by the village Panchayat or local body for doing the same. According to the letters circulated by the MDM Lucknow that format of mid day meal register was to be maintained by the District Magistrate at three levels i.e. school, block and district level. The conversion cost and food grains per month should be given in advance after submitting certified number of students and then they will obtain conversion cost and food grains for the next month after submitting utilization certificate of the previous month. Thus the prime responsibility of implementation of the mid day meal scheme was with the District Magistrate assisted by the Basic Shiksha Adhikari, Chief Development Officer, Assistant Basic Shiksha Adhikari and Headmaster of the schools who were supposed to maintain the record of the students date wise and the mid day meal provided in the format register of mid day meal and the payment of NGO/Nyaya Panchayat was to be maintained by the subordinate officer of the District Magistrate. There was no advertisement published in any newspaper with regard to inviting the services of NGO's or public at large for providing mid day meal in district Mainpuri. Neither Gram Pradhan had given any inability in writing for serving mid day meal through M/s. Search and in utter disregard to the previous misconduct of M/s Search, in distribution of mid day meal, was engaged again for providing mid day meal and the area of search was also extended to the whole of district Mainpuri with effect from 1.7.2010 under the signatures of the Basic Shiksha Adhikari Krishna Dev Narain Ram and the District Coordinator mid day meal Prashant Mishra and thus the three other blocks of district Mainpuri, namely, Barnahal, Mainpuri and Karhal were added to the service of M/s. Search the proposal was recommended by Chief Development Officer J.B. Singh and was approved by the applicant the then District Magistrate on 15.5.2010 and the contract was signed on 17.5.2010 by Vivek Sudarshan on behalf of M/s. Search and other officers and K.D. Ram the then Basic Shiksha Adhikari and served mid day meal with effect from 1.7.2010 to 30.6.2011. The then Basic Shiksha Adhikari and District Coordinator without enquiring into the matter separately recommended M/s. Search without obtaining unwillingness of the village Pradhan as stipulated in the government order and the same was approved by the applicant who was the District Magistrate during that period. The applicant was the competent authority to sanction the payment of the conversion cost as he was entrusted in respect of the budgetary allocation for mid day meal, thus he had dishonestly and fraudulently abused his position extended the services of M/s. Search without fulfilling the mandatory requirement of written unwillingness from Gram Pradhan or local bodies. The applicant had sanctioned and disbursed the total amount of Rs. 15,61,12,956/ - to M/s. Search in 19 instalments without obtaining utilization certificates and supporting bills and vouchers from the NGO and without observing norms of payment. The applicant who was the competent authority to sanction payment of the conversion cost is solely responsible because without his signature /sanction not a single penny could have been paid to the NGO, therefore, the contention of the learned counsel for the applicant that the applicant has nothing to do with the proceeding of M/s. Search is absolutely wrong as the investigation has been thoroughly done and during investigation the role of one Ms. Ministhi S. was not found proved, hence she was exonerated of the charge whereas the applicant and other persons have committed serious irregularity while discharging official duty in misappropriating public funds resulting into wrongful loss to the State exchequer and wrongful gain to M/s. Search, in case the applicant is enlarged on bail on account of his position he will influence the witnesses. The learned court below has rightly rejected the bail application of the applicant looking into the gravity of the offence. The applicant can also not claim any parity with one Dinesh Chandra Shukla the predecessor of the applicant who had awarded work of serving mid day meal in primary schools as well as in upper primary schools of six blocks and urban area of Mainpuri sanctioned payment of conversion cost to M/s Search by completely given go bye the basic norms and procedure. The applicant failed to bring to book his predecessor or to check the huge loss caused to the State exchequer in crores by shutting his eyes. Therefore, the applicant does not deserve any indulgence of bail.;