2009 ALL MR (Cri) 2378
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

S.R. DONGAONKAR, J.

Abhijit Keshavrao Gavhankar & Anr.Vs.State Of Maharashtra

Criminal Application No.1866 of 2009,Criminal Application No.1962 of 2009,Criminal Application No.1963 of 2009,Criminal Application No.2044 of 2009

18th July, 2009

Petitioner Counsel: Shri. ANIL MARDIKAR
Respondent Counsel: Shri. Y. B. MANDPE

(A) Criminal P.C. (1973), S.439 - Anticipatory bail - Kerosene scam - Applications for bail were preferred before charge-sheet were filed - They were rejected by Sessions Judge - Subsequently charge-sheet filed - Applicants need not necessarily be directed to approach JMFC or Sessions Court for grant of bail - High Court in its plenary powers can entertain applications for bail if parties want relief from High Court. 2004 ALL MR (Cri) 3073, Disting. (Paras 9, 10, 11)

(B) Criminal P.C. (1973), S.439 - Anticipatory bail - Kerosene scam case - Order of High Court granting bail - Appeal - Until further orders operation of impugned order stayed by Apex Court - Effect of - It would mean all the observations therein cannot be considered for the purposes of deciding further bail matters on merits on the same material. (Paras 18, 19)

(C) Criminal P.C. (1973), S.439 - Anticipatory bail - Kerosene scam case - Out of 47 accused 29 retailers and hawkers granted bail - Six were absconding - Present five applicants who were government officers were arrested after order of Apex Court staying operation of earlier bail order was passed - Hence they cannot rely on observations of High Court in granting bail to earlier applicants - Fact that investigation is incomplete and other accused are yet to be arrested and trial would not take place in near future would not entitle applicants for bail - Applicants can apply for discharge if they feel that no case is made out against them - Trial Court directed to expedite trial and consider their case for bail if trial cannot be held expeditiously. (Paras 31-33)

Cases Cited:
Laxman Vs. State of Maharashtra, 2004 ALL MR (Cri) 3073 [Para 6,11]
Arun S/o. Marotrao Patil Vs. State of Maharashtra, 2008 ALL MR (Cri) 1849 [Para 17]


JUDGMENT

JUDGMENT:- By these applications, the applicants are claiming bail under Section 439 of Cr.P.C. These applicants have been arrested for the offences under Section 420, 467, 468, 471, 472 read with section 34 of Indian Penal Code and also under Section 3 and 7 of the Essential Commodities Act arising out of Crime No.104/2007 of Police Station, Mahagaon.

2. The applicants are government officials working in District Supply Department at Yavatmal. The offences are relating to the popularly known kerosene scam. It is alleged that the applicants had shown exaggerated figures of the population and got sanctioned more kerosene quota for Mahagaon Taluka of Yavatmal District, through District Supply Office, Yavatmal. Said quota of kerosene was in turn released to the wholesalers who thereafter released the same to semi-wholesalers and the retailers. The last end of this chain is that of retailers and licenced hawker's who had distributed kerosene, which is stated to be an essential commodity. It is alleged that because large quantity of kerosene was sought to be released by showing illegal enhancement in the population figure, the kerosene to the extent of some thousand kiloliters was sold in open market, some of it was sold in the black market from the period January, 2003 to April, 2006. It is alleged that because of this loss was caused to the Government to the extent of Rs.3,73,50,800/-. In the act of commission of these offences, the aforesaid accused persons committed cheating to the government by fabricating documents, submitting false notes of demands, and thereby caused loss to the government.

3. When the offences were registered, the aforesaid accused/applicants, so also the other persons preferred applications for grant of anticipatory bail. Some of the accused were released by the trial Court. The matter was also considered by this Court and orders of pre-arrest bails were passed.

4. This order was passed by this Court on 30-4-2008. Later on, said order was challenged by the respondent before Apex Court. In the special leave petition, the Apex Court has passed following order:

"Taken on Board.

Exemption allowed.

Issue notice on the applications for condonation of delay as also on the special leave petitions.

Until further orders, operation of the impugned order shall remain stayed."

5. As the aforesaid order dated 30.4.2008 of this Court was stayed, the present applicants came to be arrested on 19.3.2009. The respondents had carried out some investigation after the passing of the order of anticipatory bail by this Court. Thereafter, as the applicants were taken into custody, some another investigation was done. The charge-sheet, against the present applicants, as they were in custody, seems to have been filed on 12.6.2009. This charge sheet appears to have been filed because the period of 90 days, was to expire after the arrest of the present applicants. It is necessary to note that so far no charge sheet is filed against the other accused who either have been released on bail by this Court or by the Sessions Court. It is necessary to state that even now respondent is unable to state as to when the investigation against these accused would be completed and the charge-sheet would be filed. In the back drop of these circumstances, the applications of the present applicants need to be considered for the purpose of grant of bail.

6. Preliminary objection raised by the respondent to these applications is that these applications were preferred before filing of the charge-sheet and as now the charge sheet has been filed, then applicants should be ordered to move the Court of Judicial Magistrate First Class, or Sessions Court for grant of bail first as there is a change of circumstances, in pursuance to the judgment of this Court reported in 2004 ALL MR (Cri) 3073, Laxman Vs. State of Mah.

7. According to learned APP it is proper on the part of the applicants to move the trial Court particularly Sessions Court for grant of bail as the charge sheet has been now filed. In a way, it is the submission of the learned APP that this court should not consider the bail applications of these applicants, in view of the said judgment.

8. In order to appreciate this contention, it is necessary to closely peruse the provisions of section 439 of Criminal Procedure Code which read thus:

"439. Special powers of High Court or Court of Sessions regarding bail-

(1) A High Court or Court of Session may direct-

(a) that any person accused of any offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 427, may imposed any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is for reasons to be recorded in writing of opinion that it is practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody".

9. It would be apparent that the High Court and the Sessions Court, have plenary powers in respect of the subject of grant of bail. Though normally such matter needs to be considered by the Court of Sessions first, that fact by itself will not preclude the Courts of superior jurisdiction from considering such applications, more particularly, in the present case, High Court while exercising special powers conferred on the High Court under section 439 of Cr. P. C. Here is the case where the applications for bail of the applicants are already rejected by the Additional Sessions Judge, Pusad by the order dated 30-4-2009 with the following observations:

"5. I have heard the learned Counsels appearing for the petitioners and learned APP. On going through the crime papers and the say, it is clear that the matter involves a scam in which so many officers of higher rank and those working on lower posts were involved. It cannot be accepted for a moment that the petitioner clerks bonafidely prepared the list for the proposal for demand of the quota and the officers blindly signed them not knowing about the deceit and fraudulent intention. It is alleged that after the offences came to be registered more than 14 ration cards came to be cancelled. The demand of kerosene which rose upto 450 K.L. was reduced to 252 K.L. which was the demand made earlier as per the record. This is not then case in which one or two officers were involved in commission of misappropriation and the offence has no serious ramifications on the people at large. In that case, the court can think of release of accused on the bail. In that case, the court can think of release of accused on the bail. In the instant case, the responsible Revenue Officers, some of whom working as Class-I Officers, were involved in commission of the misappropriation by way of sale of kerosene in black marketing. The release of the petitioners, when six accused are still absconding, would not be proper. In the say, names of these accused are given as Arun Dhobale, Sahebrao Kamble, Kamruddin Gajiyani, Govind Kubade, Bhatgwat Saidane and Bhagwan Narvade. From the facts of the case, it is prima facie shown that the allegations against the petitioners are well founded and they acted with ill intention and they defrauded the government authority.

6. The learned Counsel for petitioners have cited some cases, [1] Sunil Vs. State of Maharashtra, 2004 ALL MR (Cri) 433, [2] Babanrao Vs. State of Maharashtra, 2006 ALL MR (Cri) 2655 (S.C.) [3] Dr. Jagannath Mishra Vs. C.V.I., (1998)9 Supreme Court Cases 611 [4] State of Rajasthan Vs. Balchand, 1978 Cri.L.J. 195. I have read the reported cases. These cases are different from the instant case. Therefore, the ratio laid down in these cases cannot be applied and they do not help the petitioners. I am of the opinion that when the investigation is still pending and some of the accused who had played important part in commission of crime, are absconding, the release of petitioners would not be in the interest of investigation. Hence, I am constrained to reject these applications."

10. He has thus observed that from the facts of the case, it is prima facie shown that the allegations against the applicants are well founded and they acted with ill intention and they defrauded the government authority. Therefore, the Sessions Judge has formed an opinion against the present applicants as regards the substantiation of the allegations against them, even before the presentation of the charge-sheet. The charge-sheet is only the formal expression of the conclusion drawn by the investigating authorities and a report submitted to the concerned Court for starting proceedings against the accused. Therefore, as rightly submitted by the learned Counsel for the applicants, no useful purpose would be served in again asking the applicants to approach to the Court of J.M.F.C. or to the Sessions Court for the purpose of bail, only to fulfill a ritual of going to the court of lowest jurisdiction. They are further perhaps right in submission that the learned J.M.F.C. or the Sessions Judge would not take any different view, than the Sessions Judge has already taken by his order dated 30-4-2009.

11. Apart from this, the learned APP for respondent, can definitely contest the matter on merits, here, also. No doubt, if the applicants want to approach to the trial Court for bail of their own, that would have been a welcome exercise for them, this Court, would have been benefited to have the view of the lower courts on the issue. But as the applicants feel that lower courts may not take different view than what was already taken They would like to pursue this matter, in my opinion, as the High Court is the Court having omnibus jurisdiction on this matter, cannot shut its doors, when the parties want relief from this Court. Decision reported in 2004 ALL MR (Cri) 3073, Laxman Vs. State of Mah. is clearly distinguishable on facts. It was on the point as to whether filing of charge sheet is a substantial change in circumstances, so as to enable same Court to consider bail application again.

12. Before proceeding further in the matter, it is necessary to take stock of the case. There are in all 48 accused in the matter. One of them is dead. Out of 47 accused except 18 persons, rest of the persons are retailers or the hawkers who are as stated above, are the last link in the chain of the accused and are released on anticipatory bail by the Sessions Court. Six accused are stated to be absconding. Three have been stated to be arrested and released by this Court on bail. Rest of them i.e. 6 including these five applicants were arrested by the respondents after the interim order of the Apex Court passed in the S.L.P. regarding staying the order of this Court dated 30-4-2008 and therefore, only these applicants are before this Court, five in the present applications and one before the other bench of this Court, who are claiming bail.

13. Turning to the merits of the case, it is necessary to note the submission of the learned Counsel for the applicants. They submit that while considering the applications of grant of anticipatory bail by this Court, it was found that allegations against the applicants can be at the most of negligence in official duties. According to them, even after the arrest of the applicants, no investigation was done. Even after seeking police custody or magisterial custody for a considerable long time, except taking of specimen signatures, nothing was done. The charge-sheet is filed only to keep the applicants in jail as the statutory period of 90 days was to be over. According to them observations of this court in the order dated 30-4-2008, still, prevail as they are not stayed by the Apex Court and therefore, it was the duty of the respondents to submit the satisfactory answers to the queries raised in that order. According to them there was no valid material collected by the I.O. to substantiate the charge against the applicants. According to them reply filed by the respondent to these applications, does not show the clinching evidence collected against all or any of the applicants. In fact, the allegations are of most general nature, without attributing any special act of the offence against any of the applicants. It is the submission of the learned Counsel for the applicants that the offences are triable by the Magistrate and as none other accused has been arrested so far, nor any charge-sheet is filed against them, the trial of the present accused in no case can be held in near future. Thus, for all these reasons, applicants would be entitled for bail according to the learned Counsel.

14. As against this, the learned APP Shri. Mandpe has submitted that the case against the applicants in the charge sheet has been substantiated by suitable evidence on record. As they have committed offences, they are not entitled for bail as some of the offences are punishable by imprisonment for life. Further according to them though the allegations against them in reply are general in nature still they are substantiated by the evidence on record and therefore, they would be liable for rejection of the bail. According to him, though the trial may not be within sight, that fact by itself will not entitle the applicants for bail, more particularly because the Hon. Apex Court has stayed the operation of this Court's order regarding grant of anticipatory bail, which was passed on the basis that material collected by Investigating authority was not sufficient to point out the guilt of applicants and main possible culprits were released on bail.

15. He has further contended that, if necessary, the trial of these accused can be separated and the same can be proceeded on merits.

16. It goes without saying that no substantial investigation appears to have been done after the order of this Court dated 30.4.2008 and even after arrest of the applicants, in pursuance of the order of the Apex Court except taking the specimen signatures of the applicant.

17. The Apex Court has passed an order to stay the operation of the order of this Court (dated 30-4-2008, reported in 2008 ALL MR (Cri) 1849, Arun S/o. Marotrao Patil Vs. State of Maharashtra). Some of the observations of this Court in that order need to be noted.

"23. With these observations about the working of District Supply Office and other Offices in Yavatmal District, it is difficult to say that such types of affairs may not be in other talukas. No doubt, the original writ petition was restricted to the illegalities or irregularities committed in the distribution of kerosene in Mahagaon Taluka, but the fact remains that when such illegalities or irregularities were noticed in the District Supply Office, in my opinion, it was duty of the concerned authorities not to be satisfied with inquiry in Mahagaon taluka only, but to get it confirmed that no such illegalities and irregularities are committed in other talukas of Yavatmal district and for that matter other districts of Maharashtra.

.........

29. Needles to state that even in the inquiry conducted by the Divisional Commissioner, there was no criminal intention attributed to the present applicants except saying that they had taken part in the process with full knowledge. Nowhere there was allegation that these applicants were benefited by the sale of kerosene, rather illegal sale of kerosene in the black market. The possibility of their being acting perfunctorily without any criminal intention cannot be overruled. A judicial notice of the fact that many a times routine proposals are submitted without actual verifidation of the requirements, can be taken. Therefore, in such circumstances, there should have been a clear connective material to show that all the applicants (officials) or any of them had any mens rea in submitting a false proposal for excess quota of kerosene to get the same distributed through their acquainted retailers and get benefited out of that. Here it is not a case that all these officials were somewhere or the other connected with the retailers i.e. who were the persons in the last rung having direct duty of distribution of kerosene to the card holders & card holders only. Though general allegations are made, there appears to be no specific statement of the persons either saying that they have not received the kerosene through they had cards or they had in fact received the kerosene in black market. There is also no specific evidence to show that the kerosene was being distributed without any entitlement through the cards.

30. Why this is important to note, is the fact that the kerosene in the present case which was allegedly distributed in excess quantity is in such a large quantity, that unless there is evidence on record, it is difficult to comprehend that all this kerosene would have been sold in black market without there being any complaints. Possibility of such use by some persons in large quantity is also not shown. In my opinion, therefore, when considerable time was lapsed, after registration of offence, during the pendency of these applications, it would have been benefiting to the investigation agency to collect such evidence and produce it before the Court to show that such a large quantity of kerosene could have been sold in the black market with the aid of the retailers and for that matter, even by semi-wholesalers.

31. As such it appears that the prosecution has failed to produce any sufficient material on record to show that except dereliction of their duties, there can be any criminal intention in them to commit the offence to ultimately have some gain out of the sale of said kerosene in the black market.

............

37. In my view, the offences in the present case could not have been committed except with the active support of the retailers, semi-wholesalers and wholesalers. Even if, excess quota of kerosene wrongly or rightly is released to any wholesaler, even for the sake of argument it is assumed that the same was released because of false or wrong submissions as the said kerosene was to be distributed only to the card holders and that too by maintaining record, the maximum part in the offence would have been committed by the retailers. It is apparent that, except this semi-wholesaler, all other concerned persons have been either released on bail or on anticipatory bail. I have already pointed out above that there is no move by the respondent to get those bails cancelled. In such circumstances, this applicant would call treatment in similar way."

18. What is the effect of the stay order granted by the Apex Court has important bearing on the subject matter of these applications. It is observed by the Apex Court that until further orders the operation of the impugned order shall remain stayed. Learned counsel for the applicants have contended that this stay cannot be interpreted to be a stay to the observations made by this court in the aforesaid order of granting anticipatory bail to the applicants. It can be interpreted only to mean that only the anticipatory bail of the applicants has been stayed and therefore, they can be arrested for the purposes of investigation etc.

19. In my opinion, it is not possible to accept such interpretation inasmuch as the final order of anticipatory bail was passed for the reasons recorded in the said order. When, after hearing, the Apex Court stays the operation of the impugned order, it would mean all the observations therein cannot be considered for the purposes of deciding further bail matters on merits on the same material. It has to be presumed that the legality and validity and sustainability of the impugned order was considered by the Apex Court and therefore, the operation of the impugned order was stayed. In this view of the matter, the contention of the learned counsel for the applicants that some of the observations referred above in the earlier order granting anticipatory bail to the applicants should be considered, can not be countenanced. Therefore, in my opinion, the applicants cannot rely on the observations in that order to contend that no prima facie case has been made out against the applicants. Therefore, now the merits of the applications have to be considered.

20. In the present case now charge-sheet has been filed against the present applicants. The matter as stated by learned counsel for the respondent is for further investigation in respect of other accused as well as for filing charge-sheet against them which includes the other government officers, wholesalers, semi-wholesalers, and retailers.

21. Reply of the respondent State to these applications clearly point out the evidence collected against the applicants.

22. As regards the accused No.1 - Loknath Tandil [he is not applicant before this court] the following is the submission:-

"Accused no.1 was holding the charge for the period come to 24-1-2003 till 30-4-2006 during the said period the applicant accused No.1 with collusion of other co-accused had increased the population of the village Mahagaon by taking false entries and also taken false entries regarding ration card holders. The present applicant/accused No.1 in order to get excess quota of kerosene had submitted a false demand before the Government by increasing entries Ration Card holders. The applicant has not maintained or inspected the record of semi-whole-seller and retailers and in this way the applicant cheated the Government and committed an offences."

23. As regards accused no.2 Shivram Sakharam Wankhade, Supply Inspector, following is the submission:

"Regarding accused No.2 Sakharam Shivram Wankhade, Supply Inspector who was posted from 3.8.2004 till 21-11-2007 the accused No.2 with collusion of accused No.1 and other accused persons had demanded excess amount of kerosene and that there was no demand by whole-seller. This applicant has placed excess demand of kerosene for Mahagaon Tahsil. The applicant has also not maintained the register as per require rules. This applicant has prepared false unit and fabricated the list thereby had caused the Government great loss. The evidence collected against the present applicant. That the applicant has prepared false statistical data regarding population of village Mahagaon and also had taken false entries in unit register. The said document is at page No.160, 183 of the charge-sheet. The documents at page No.52 to 142 also discloses that the applicant has not maintained any register regarding the supply of kerosene to the whole seller or semi whole-seller nor the applicant had inspected the register with were required to be inspected from time to time and thus applicant had committed an offence. The applicant had also submitted false report to the Government this can be gathered from page No.143,144 and 145 of the charge-sheet. The prosecution witness Ambadas Lokhande Statistical Department discloses the same thing at page No.290. The applicant had placed excess department of kerosene and obtained signature of Tahsildar and the same find placed at page No.312 of the charge-sheet. The prosecution witnesses Subhash Bedarkar, Kirankumar Waikos and Bhanudas Nandanwar had also confirmed that the applicant has not maintained the inspection report or had not taken entries as per require rules and has prepared false documents. The said document is at page No.177,284,286 and 288 of the charge-sheet.

The co-accused Jairam Natthuji Rawate Proprietor Salim Trading Company, Sau. Sindhu Sanjay Bhagat, Anandrao Narayan Kund and R. J. Gulfulwar were given false entries in their stock register by the present applicant. The applicant without inspecting their stock register has given inspection report though the said register was defective. The applicant has also not maintained the kerosene distributed by the co-accused who are retailers and thereby committed the offence. The said document is at page No.170 and 176. The applicant had also not maintained or inspected the kerosene supply by retailers, semi whole seller and had prepared a false documents, then said documents is at page No.206 to 209 and page No.241 of the charge-sheet.

24. As regards applicant in Criminal application no.2044/2009 Arun Patil, following are the submissions:-

"So far as the accused No.3 Arun Marotrao Patil he was holding the charge of Inspecting Officer for the period 26-9-2002 to 132-8-2004 at the relevant time Accused No.1 was holding the charge for the period come to 24-1-2003 till 30-4-2006 during the said period the applicant accused No.1 with collusion of other co-accused had increased the population of the village Mahagaon by taking false entries and also taken false entries regarding ration card holders. The present applicant/accused no.1 in order to get excess quota of kerosene had submitted a false demand before the Government by increasing entries Ration Card holders. The applicant has not maintained or inspected the record of semi-whole-seller and retailers and in this way the applicant cheated the Government and committed the offences."

25. As regards accused no.4 Abhijit Gavankar, Senior Clerk following are the allegations from the charge-sheet :-

"So far as the accused No.4 Abhijit Keshavrao Gavhankar as Senior Clerk for a period 7.2.2004 to 11.4.2004 and again for the period from February, 2005 to October, 2005 and again from February, 2006 till 30-8-2007 during this period the present applicant in collusion with other co-accused had exceeded the unit register and shown much population and also had shown excess card holders by taking false entries and this point had placed excess department of quota for kerosene for Mahagaon tahsil and thus has committed an offence. Accused No.1 was holding the charge for the period come to 24-1-2003 till 30-4-2006 during the said period the applicant accused No.1 with collusion of other co-accused had increased the population of the village Mahagaon by taking false entries and also taken false entries regarding ration card holders. The present applicant/accused No.1 in order to get excess quota of kerosene had submitted a false demand before the Government by increasing entries Ration Card holders. The applicant has not maintained or inspected the record of semi-whole-seller and retailers and in this way the applicant cheated the Government and committed the offences."

26. Accused No.5 Hiralal Jaiswal in criminal application no.1962/2009, the submissions are thus:-

"So far as the accused no.5 Hiralal Gangaprasad Jaiswal is concerned he was appointed as Junior Clerk for the period 4.12.2003 to 21.5.2004 and in collusion with accused No.4 and other accused persons had also prepared false unit register showing excess population and excess card holders in order to get excess quota of kerosene. Accused no.1 was holding the charge for the period come to 24.1.2003 till 30.4.2006 during the said period the applicant accused No.1 with collusion of other co-accused had increased the population of the village Mahagaon by taking false entries and also taken false entries regarding ration card holders. The present applicant/accused No.1 in order to get excess quota of kerosene had submitted a false demand before the Government by increasing entries Ration Card holders. The applicant has not maintained or inspected the record of semi-whole-seller and retailers and in this way the applicant cheated the Government and committed the offences.

The applicant has collected the documents regarding the excess demand which is at page No.160 of the charge-sheet the false entries which were taken by the applicant is at page 183 of the charge-sheet, there was also irregularities found during the inspection regarding the supply of kerosene to Mahagaon Tahsil. The said document is filed at page No.52 to 142 of the charge-sheet. The accused Nos.4 to 6 had also increase the population and shown excess card holders in order to get excess quota then required for Mahagaon Tahsil. The said documents is at page No.144 to 145 of the charge sheet. The data collected from the Statistical Department Yavatmal and the statement of Shri Ambadas Lokhande, District Statistical Officer is at page No.290."

27. As regards the accused no.6 Godaji Bhagwan Gore in Criminal Application no.1963, the following are the contentions in paragraph 13:-

So far as the accused No.6 Godaji Bhagwan Gore is concerned, he was also appointed as Jr. Clerk for the period from 7.3.2003 to 15.9.2003 and in collusion with other accused persons has created false and bogus population register and had taken wrong entries of population and card holders nor placed excess demand of kerosene for Mahagaon tahsil. Accused No.1 was holding the charge for the period come to 24.1.2003 till 30.4.2005 during the said period the applicant accused No.1 with collusion of other co-accused had increased the population of the village Mahagaon by taking false entries and also taken false entries regarding ration card holders. The present applicant/accused No.1 in order to get excess quota of kerosene had submitted a false demand before the Government by increasing entries Ration Card holders. The applicant has not maintained or inspected the record of semi-whole-seller and retailers and in this way the applicant cheated the Government and committed the offences.

The applicant has collected the documents regarding the excess demand which is at page No.160 of the charge sheet the false entries which were taken by the applicant is at page 183 of the charge-sheet, there was also irregularities found during the inspection regarding the supply of kerosene to Mahagaon Tahsil. The said documents is filed at page No.52 to 142 of the charge-sheet. The accused Nos.4 to 6 had also increase the population and shown excess card holders in order to get excess quota then required for Mahagaon Tahsil. The said documents is at page No.144 to 145 of the charge-sheet. The data collected from the Statistical Department Yavatmal and the statement of Shri. Ambadas Lokhande, District Statistical Officer is at page No.290."

28. It is a case of the respondent that these accused who are applicants before the court now; were responsible for committing such a fraud.

29. Learned counsel for the applicants, relying on the observations of the earlier order of this court, which is subject matter of challenge before the Apex Court have contended that the offences committed by them are not made out from the evidence that was collected at the time when the anticipatory bail applications were decided. Further according to them, even after the arrest of the present applicants in pursuance to the orders of the Apex Court, no evidence could be collected. Only investigation that is done is, to collect the specimen of handwriting of the accused, which is quite surprising, particularly when the principal claim of respondent before the Apex Court was that, "for investigation the custody of the applicants was necessary". In fact they could have collected clinching material after police custody remand and magisterial custody remand of the applicants was obtained.

30. It is further contended that, leave that apart, even now the respondent State is unable to arrest the other accused in respect of whom the stay order of the Hon. Apex Court is operating and it does not seem that they are likely to be arrested in near future. According to them, main culprits, the retailers, who had sold the kerosene possibly to the persons who were not having ration cards, are released on bail and therefore, these applicants would be entitled for the bail. They took me through various observations of this court in the order dated 30.4.2008.

31. I have already pointed out that the effect of the order of the Apex Court, while granting stay to the order passed by this court is that even the observations therein now could not be relied upon by the applicants. Therefore, in my opinion, it cannot be held that any case is made out against applicants. The respondents "on affidavit", have pointed out what evidence they have collected and how the case against the applicants is made out. It goes without saying the allegations against the applicants cannot be equated with that of the retailers. Had the applicants been particular in doing their duties, perhaps such offences would not have been committed. Considering the penalty for the offences involved in this case, though prima facie offences are triable by the court of J.M.F.C., the matter can be transferred to the court of C.J.M. for seeking enhanced punishment. In my opinion, therefore, unless the trial court finds that no severe punishment can be imposed or invited, applicants would not be entitled for bail considering the impact of the order of stay, to the order of this court, passed by the Apex Court.

32. Learned counsel for the applicants have further contended that the trial of the applicants cannot be held in near future as investigation is incomplete and other accused are yet to be arrested, but that would not entitle the applicants for bail. As such the trial Court can be directed to expedite the trial and consider the bail applications, if filed by the applicants, if the trial can not be held for any reason, expeditiously.

33. The applicants if they feel that no offence is made out against them, they would be entitled to file applications for discharge before the trial court. Merely because other accused are not arrested and some other accused are released on bail, that fact by itself, would not be sufficient to exercise the discretion in favour of the applicants. No doubt, the applicants can not be kept indefinitely in jail if the trial is not insight i. e. not possible to hold the same in near future. In my opinion, trial court, if necessary can start the trial of the applicants for the purposes of expeditious trial, as the charge-sheet is already filed.

34. In this view of the matter, these applications cannot be granted. However, applicants shall be at liberty to move for grant of bail, if the trial does not commence within 3 months from today. As already observed, the applicants would be at liberty to move for discharge, if they so desire.

35. Applications stand disposed of.

Ordered accordingly.