Gujarat High Court
Pradeep vs State on 22 June, 2011
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
Gujarat High Court Case Information System
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CR.MA/3934/2011 38/ 38 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3934 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PRADEEP
N SHARMA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
IH SYED for
Applicant(s) : 1,
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MR
PRAKASH JANI, PUBLIC PROSECUTOR with MS SANGEETA VISHEN, APP for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 22/06/2011
CAV
JUDGMENT
This is an Application under Section 439 of the Code of Criminal Procedure preferred by the accused-applicant, an I.A.S. officer, praying for regular bail in connection with I-CR No.9/2010 registered with State CID Crime Rajkot Zone Police Station for the offences punishable under Sections 217, 409, 465, 467, 468, 471 read with Section 120B of IPC.
Avarice is a common frailty of mankind and Robert Walpole's famous pronouncement that all men have their price, notwithstanding the unsavoury cynicism that it suggests, is not very far from truth. As far back as more than two centuries ago, it was Burke who cautioned: "Among a people generally corrupt, liberty cannot last long". In more recent years, Romain Rolland lamented that France fell because there was corruption without indignation. Corruption has, in it, very dangerous potentialities. Corruption, a word of wide connotation has, in respect of almost all the spheres of our day to day life, all the world over, the limited meaning of allowing decisions and actions to be influenced not by the rights or wrongs of a case but by the prospects of monetary gains or other selfish considerations.
If even a fraction of what was the vox pupuli about the magnitude of corruption to be true, then it would not be far removed from the truth, that it is the rampant corruption indulged in with impunity by highly placed persons that has led to economic unrest in this country. If one is asked to name one sole factor that effectively arrested the progress of our society to prosperity, undeniably it is corruption. If the society in a developing country faces a menace greater than even the one from the hired assassins to its law and order, then that is from the corrupt elements at the higher echelons of the Government and of the political parties.
The case of the prosecution in brief can be summarised as under:-
The accused-applicant is an I.A.S. officer serving with the State of Gujarat past couple of years. In the year 2003 he was posted as Collector and District Magistrate at Bhuj. He remained Collector and District Magistrate of Bhuj upto 3rd July 2006. During his tenure as Collector at Bhuj, three companies, namely, (1) M/s.Wellspun India Limited, (2) M/s.Wellspun Power and Steel Limited, and (3) M/s.Wellspun Gujarat Limited, preferred applications for allotment of lands bearing Survey No.652, 692, 665, 667, 668, 670, 684, 692, 890 and few other survey numbers situated at village Varshamedi, Taluka Anjar, District Bhuj.
Prima facie, it appears that this demand for the allotment was on the basis of one resolution bearing No.JMN/392003/454/A(R.D.) issued by the State of Gujarat dated 6th June 2003 simplifying the process of allotment of Government land for industrial growth in the District of Kutch, which was severely affected by earthquake.
It appears that for this purpose, a District Land Valuation Committee was constituted. The Committee comprised of the following persons:-
(a) District Collector;
(b) District Development Officer;
(c) Deputy Town Planner; and
(d) Resident Deputy Collector as Member Secretary.
It appears that meetings were convened in this regard from time to time and in the meeting held on 20th July 2004, the subject of allotment of land to Wellspun Company was one of the items on the agenda as Agenda No.5. In the meeting, it was decided that land bearing Survey No.890 at village Varshamedi, Taluka Anjar, District Bhuj admeasuring 20,234 sq.meters be allotted to M/s.Wellspun India Limited.
It is also the case of the prosecution that the price which was fixed for the allotment of the land was at the rate of Rs.15=00 per sq.meter.
It is the case of the prosecution that the accused-applicant, abusing his position and power as a Collector and with the sole motive to favour the Company and thereby derive monetary gain for himself, made many more allotments in favour of the Company, admeasuring lands upto 1,74,014 sq.meters in gross violation of the resolution of the State of Gujarat dated 6th June 2003, which empowers the Collector to allot only upto 2 hectares of land i.e. 20,000 sq.meters.
It is the case of the prosecution that if the demand is for more than 20,000 sq.meters then, the proposal has to be placed before the State Government in its Revenue Department. It is the State Government who is empowered thereafter to pass necessary orders fixing the price of the land for the purpose of allotment.
It is alleged that huge parcels of land were allotted at a very meagre price of Rs.15=00 per sq.meter. It is the case of the prosecution that when subsequently other proposals for allotment of lands were forwarded to the State Government, the allotments were made at the rate of Rs.78=00 per sq.meter, as according to the case of the prosecution, the appropriate rate was Rs.78=00 and not Rs.15=00.
It is also the case of the prosecution that the orders of allotments which were passed by the accused-applicant in favour of the Company Wellspun at the rate of Rs.15=00 per sq.meter were never sent to the State Government in its Revenue Department for its information and approval and, thereby, the accused-applicant kept the State Government in dark about the illegal allotment of huge parcels of land at the rate of Rs.15=00 per sq.meter.
It is alleged that in this manner by adopting corrupt practice the accused-applicant is responsible for causing loss to the public exchequer and revenue to the tune of Rs.1,04,61,622=00 and loss of stamp duty to the tune of Rs.15,69,240=00.
It is also the case of the prosecution that in the year 2004, the accused-applicant had obtained a mobile sim card bearing No.9925199799 in the name of one Shri Vasim Chakrovarty, Vice President of the Company Wellspun. This mobile was recovered from the possession of the accused-applicant and the record indicates that the bill amount of the mobile was being paid by the Company Wellspun. For the period between 2004 till 2009 when this mobile was used by the accused-applicant, the total aggregate amount towards the bill was to the tune of Rs.2,24,036=00. It is the case of the prosecution that this amount was paid by the Company.
It is also alleged in the F.I.R. that so far as the allegations of using the mobile sim card which was in the name of the Vice President of the Company and the amount of Rs.2,24,036=00 paid by the Company towards the bill for the usage of the mobile is concerned, an independent offence has been registered against the accused-applicant with Rajkot Zone Police Station vide I-CR No.3/2010 for the offence punishable under Sections 7, 11, 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988.
To put it more precisely and very briefly, the case of the prosecution appears to be that the accused-applicant, in his capacity as Collector, Bhuj at the relevant point of time, joined hands with a Company named Wellspun and, with the sole intention of gaining monetary benefits for himself, allotted huge parcels of lands in favour of the Company at a meagre rate of Rs.15=00 per sq.meter, whereas, the actual rate was Rs.78=00 per sq.meter and, thereby corruptly favoured the Company causing loss to the public exchequer and revenue of the State to the tune of Rs.1,20,30,842=00. It is alleged that in this manner the accused-applicant has committed offences punishable under Sections 217, 409, 465, 467, 468, 471 read with Section 120B of IPC.
Before I proceed to consider the plea of regular bail on merits, it would be expedient at this stage to narrate few facts which would be relevant for better adjudication of the matter.
(a) It appears that prior to the registration of the present offence, one more offence was registered against the accused-applicant for the same charges. This offence has been registered as CR.M.Case No.1/2008 lodged with State C.I.D. Crime, Rajkot Zone Police Station. The F.I.R. so far as the CR.M.Case No.1/2008 is concerned, it is dated 20th February 2008. In the prosecution of CR.M.Case No.1/2008 the allegations are almost at par. In that case also, the case of the prosecution is that the allotments were made contrary to the Government Resolution abusing the power and position as Collector, causing huge revenue loss to the State Government. Record reveals that in connection with CR.M.Case No.1/2008, the accused-applicant was arrested on 6th January 2010 and ultimately he has been ordered to be released on bail by Hon'ble Supreme Court vide order dated 6th September 2010.
(b) Record reveals that second in point of time one another F.I.R. came to be lodged on 31st March 2010 for offences punishable under Sections 7, 11, 13(1)(b) read with Section 13(b) of the Prevention of Corruption Act, 1988 with State C.I.D. Crime, Rajkot Zone Police Station. It appears that in CR.M.Case No.1/2008 also there were charges for the offence punishable under the Corruption Act. However, on 1st April 2010, the Investigating Officer preferred an application before the Special Court, Anti-Corruption Bureau for deleting Sections 7, 11, 13(1)(b) read with Section 13(b) of the Corruption Act from the F.I.R. i.e. M.Case No.1/2008. Prima facie, it appears that this step was taken as prosecution thought fit to file a separate F.I.R. in this regard on 31st March 2010 being I-CR No.3/2010. At this stage, it would not be out of place to mention that this F.I.R. is on the footing that the accused-applicant as a public servant misused his position and power and was found using the mobile phone with a sim card running in the name of the Vice President of the Company and the bill amount of the mobile phone to the tune of more than Rs.2 lakhs upto 2009 was also being paid by the Company. Again here I may mention that these allegations are part and parcel of the present F.I.R. also i.e. I-CR No.9/2010.
(c) Thereafter, as soon as on 6th September 2010 the Hon'ble Supreme Court granted bail to the accused-applicant in connection with CR.M.Case No.1/2008, within 19 days the same Investigating Agency registered the present F.I.R. i.e. I-CR No.9/2010 lodged with State C.I.D. Crime, Rajkot Zone Police Station for the offences punishable under Sections 217, 409, 465, 467, 468, 471 read with Section 120B of IPC.
(d) Last in point of time, the fourth F.I.R. came to be registered on similar charges where the Company is different but the accusations are same i.e. I-CR No.1/2011 with State C.I.D. Crime, Rajkot Zone Police Station for the offences punishable under Sections 217, 409 read with Section 120 of IPC.
-:
Contentions on behalf of the accused-applicant :-
Learned counsel for the accused-applicant, to make good his case for bail, would submit that the prosecution against the accused-applicant is tainted with mala fides and is nothing but to harass the accused-applicant to wreck personal vengeance. He would submit that as a matter of fact, after the entire region of Kutch was destroyed by earthquake in the year 2001, the Government, as a matter of policy, decided to see that big industrial houses come at Kutch-Bhuj for the purpose of setting up industries. He would submit that the project of Wellspun was worth Rs.8,000 crores. He would submit that the Government has gained a lot with these industries who have put up their plants, and as on today, are functional. He would also submit that the Chief Minister of the State himself had come to inaugurate the new Wellspun plant at the relevant point of time and allotment at the end of the State Government to the Company is about 48 acres of land. He would submit that as a matter of fact it was at the instance of the Chief Minister of the State that the Chairman of the Company was invited to invest at Kutch-Bhuj by setting up industry.
He would submit that each and every allotment was as per the rules and regulations. He would submit that as a matter of fact each and every allotment order which was passed, a copy of which was forwarded to the State Government at the relevant point of time i.e. in the year 2004. In spite of the knowledge about the allotment of the parcels of land to the Company at the rate of Rs.15=00 per sq.meter, no objection at any point of time was taken by the State Government in this regard and abruptly after a period of about six years, the State Government has raised this issue of so-called arbitrary and illegal allotment of land in favour of the Company.
Learned counsel would submit that there is complete misreading and misinterpretation of the Government Resolution dated 6th June 2003, which has been heavily relied upon by the prosecution. He would submit that the allegations in the F.I.R. to the effect interpreting the Government Resolution that if the allotments are to be made to one and the same party by way of more than one application then all applications are to be treated as one by the Collector, is erroneous. It is submitted that in the Government Resolution dated 6th June 2003 no such clarification has been made.
The counsel would further submit that the allegations were made by the accused-applicant in the year 2004 and the Government Resolution fixing the price at the rate of Rs.78=00 per sq.meter was issued on 6th August 2005. Such Government Resolution cannot have retrospective effect. He would submit that the procedure to fix the price has been explained in the Government Resolution dated 6th June 2003, which states that the District Land Valuation Committee would strictly go as per the rate fixed by the Town Planner and the Committee would be empowered to either decrease or increase the price. Initially, the Committee fixed the price at the rate of Rs.30=00 per sq.meter but thereafter, on the request of the Company, again on 20th July 2004 a meeting of the Committee was convened and after due deliberations the price was fixed at the rate of Rs.15=00 per sq.meter. He would submit that such orders were never challenged and have attend finality.
Learned counsel would submit that the prosecutions which have been initiated against the accused-applicant are for the acts alleged to have been committed six years back when the accused-applicant was Collector of District of Bhuj. The State Government kept absolutely quiet for all these years. Abruptly, at the instance of fourth or fifth successor in office, who is said to have brought to the notice of the State Government about the mode, method and manner of allotment that the Government has decided to initiate prosecution against the present accused-applicant.
Counsel would further submit that first in point of time when the accused-applicant was arrested on 6th January 2010 in connection with CR.M.Case No.1/2008 and the accused-applicant remained in judicial custody for a period of about nine months. Hon'ble Supreme Court granted bail vide order dated 6th September 2010.
Counsel has vehemently submitted that the prosecuting agency was keeping a close watch on the proceedings of the Hon'ble Supreme Court and no sooner the Supreme Court granted bail on 6th September 2010, once again with a view to seeing that the accused-applicant is put behind the bars, third F.I.R. came to be lodged within 19 days i.e. on 25th September 2010.
Learned counsel would also submit and has requested the Court to take cognizance of the fact that before the F.I.R. of the present case was registered on 25th September 2010, a separate F.I.R. on 31st March 2010 was registered against the accused-applicant for the offences punishable under Sections 7, 11, 13(1)(b) read with Section 13(b) of the Prevention of Corruption Act.
Counsel has further submitted that in the present case there is no forgery. According to him, no offences punishable under Sections 465, 467, 468, 471 are said to have been committed. He would submit that there is nothing on record to even remotely suggest that any false document within the definition of Section 464 of IPC has been prepared for the purpose of commission of offence. He would submit that the foundation of this F.I.R. is the usage of the mobile sim card running in the name of the Vice President of the Wellspun Company and the payment of bill of the mobile to the tune of more than Rs.2 lakhs. He would submit that these allegations are also a part and parcel of the present F.I.R. However, till this date, the accused-applicant has not been arrested in connection with I-CR No.3/2010 registered with the State C.I.D. Crime, Rajkot Zone Police Station. Counsel submits that the strategy of the prosecuting agency is very plain and clear. No sooner the accused-applicant gets bail in one offence, immediately thereafter he is arrested in another offence. Whereas, there is no justification for not effecting the arrest of the accused at a point of time no sooner the F.I.R. is registered.
Learned counsel would further submit that so far as the present offence is concerned, the accused-applicant is in judicial custody since 14th February 2011. He would submit that all offences are magistrate triable offences and the trial will take a considerable long period of time before it commences and concludes. He would submit that the investigation is over and charge-sheet has been filed and, therefore, there is no apprehension of accused tampering with the prosecution witnesses, more particularly, when the entire prosecution is based on documentary evidence.
Counsel would further submit that there is no material worth the name to even remotely suggest that the accused would not be available for trial.
Per contra, learned Advocate General Mr.Kamal Trivedi appearing with learned Govt. Pleader Mr.Prakash Jani has put forward the following contentions :-
The first and the foremost contention is to the effect that as on today there are as many as four to five independent prosecutions pending against the accused-applicant. He would submit that the applicant not only colluded and joined hands with Wellspun Company for arbitrary allotment of land but he has allotted lands arbitrarily and contrary to the policy of the State Government in favour of one another company also named Shri Saw Pipes Limited, causing loss to the public exchequer and revenue of the State Government to the tune of crores of rupees. Learned Advocate General would submit that the accused-applicant, a high ranking I.A.S. officer was expected to protect the interest of the State Government in all respects. He abused his position and power by indulging in acts of corruption. He submits that this is a case of economic offence which brings about total imbalance in the economy of the country, which has the effect of making life of people economically weaker and miserable. He would submit that such economic offences are treated worse than murders being committed in this country. He would submit that this is not one solitary incident of corruption or one solitary offence registered against the accused-applicant. He submits that there are in all four to five prosecutions lodged against the accused-applicant. At the relevant point of time when the Hon'ble Supreme Court granted bail on 6th September 2010, no other offences were registered except the offence under the Prevention of Corruption Act being I-CR No.3/2010.
He would further submit that in the present case, initially, there were four applications preferred by the companies demanding the grant of 20,234 sq.meters of land under each of the applications, but with reference to only one survey number viz.890. These applications were dated as under:-
(i) 27.3.2004;
(ii) 27.3.2004;
(iii) 31.3.2004;
(iv) 31.3.2004.
He would submit that though there were four applications preferred to above in respect of land of one single survey number, totalling to the tune of 80,936 sq.meters, a decision for the grant of the said land was required to be taken at the level of the State Government. However, in the instant case, a communication dated 13th May 2004 was circulated for holding the meeting of District Land Valuation Committee on 18th May 2004 along with agenda/karya suchi/valuation decision. Interestingly, in the said agenda, only one piece of land, i.e. 20,234 sq.meters of Survey No.890 under one application was referred to for the determination of the valuation.
He would further submit that on the date of the meeting, i.e. on 18th May 2004, it appears that the applicant approved the rate of Rs.30/- per sq.meter in respect of 80,936 sq.meters of land of Survey No.890 referred to in the aforesaid four applications.
He would further submit that consequently, the Company was informed vide in all by four communications, all dated 7th July 2004 (pp.306 to 309 of the paper book) for making the payment of the price of the land at the rate of Rs.30=00 per sq.meter.
He would further submit that on 19th July 2004 (p.310 of the paper book), a further communication was circulated for holding the meeting of the District Land Valuation Committee on 20th July 2004 along with agenda/karya suchi/ valuation decision, since the aforesaid rate was not found favour with the Company.
He would further submit that the applicant appears to have called for one of the copies of the form of the Brief Note for reaching the decision on valuation of the earlier meeting dated 18th May 2004 wherein, at his back, the applicant unilaterally and unceremoniously fixed the rate of very lands admeasuring 80,936 sq.meters (20,234 sq.meters under each of four applications) at Rs.15=00 on 20th July 2004.
It is further submitted that it was in view of the aforesaid developments that last column in the agenda for the meeting dated 20th July 2004 (p.311 of the paper book) came to be filled as Rs.15=00 against the land in question.
He would submit that the aforesaid development clearly suggests that the applicant dishonestly or fraudulently altered an important document in the proceedings of the meeting of the District Land Valuation Committee, without lawful authority and that too after it was executed once by him along with the other members of the Committee on 18th May 2004. As per the provisions of Section 464 of IPC, such an act on the part of the applicant amounts to 'making a false document'. Consequently, as per Section 463 of IPC, the said act amounts to forgery because as per the said section, whoever makes any false document with intent to cause damage or injury or with intent to commit fraud, is said to have committed forgery. In other words, the said action amounts to forgery of valuable security under Section 467.
He would further submit that thereafter, four communications, all dated 22nd July 2004 came to be addressed to the Company [without cancelling the earlier communications dated 7th July 2004 (pp.306 to 309 of the paper book)] calling upon the Company to make the payment for the lands in question at the rate of Rs.15=00 per sq.meter (pp.312 to 315 of the paper book).
He would submit that thereafter, four orders dated 10th August 2004 (in case of three orders) and 13th August 2004 came to be passed in respect of 20,234 sq.meters of land under each of the aforesaid applications, all belonging to Survey No.890 (pp.316 to 325 of the paper book).
He would further submit that thereafter, there were four more applications, all dated 11th June 2004 for lands admeasuring 12,141 sq.meters, 10,117 sq.meters, 20,234 sq.meters and 20,234 sq.meters of Survey Nos.652, 692, 665/1 and 679 respectively.
He would further submit that it clearly appears from the notings in the office file of the office of the District Collector that the main reason behind deciding the valuation of the land without even referring the same to the District Land Valuation Committee was insistence on the part of the Company to have the land as early as possible, since according to the Company, they wanted to start the industry before 31st December, as otherwise, they would lose incentive benefit of exemption of excise duty, etc. He has further submitted that surprisingly, before taking up the aforesaid applications for value determination in District Land Valuation Committee, the Collector, vide four communications dated 21st September 2004, asked the Company to pay value of the land at the rate of Rs.15=00 per sq.meter by referring to the said rate determination which took place in the Committee's meeting held on 20th July 2004. In fact, the applicant could not have done this.
It is further submitted that, surprisingly an intimation dated 1st October 2004 was circulated amongst the members of the Committee for holding the meeting on 1st October 2004 itself. The minutes suggest that the rate fixed for the lands in question under the aforesaid applications, was Rs.16=00.
He would further submit that thereafter, four different allotment orders, all dated 12th October 2004 came to be passed which refer to the meeting of the Committee held on 20th July 2004. In fact, the applicant should have referred to the meeting of the Committee held on 1st October 2004.
He would submit that thereafter, vide four communications dated 27th October 2004, the applicant asked the party to make the payment of the lands at the rate of Rs.16=00 per sq.meter.
He would further submit that thereafter, three more applications dated 19th June 2004, 23rd July 2004 and 23rd July 2004 came to be filed by the private party wherein, the applicant determined the rate at Rs.16=00 per sq.meter and Rs.18=00 per sq.meter respectively.
Reliance has been placed on two statements dated 14th September 2010 and 24th March 2011 of Shri Viththaldas M.Thakore, Revenue Clerk in the office of the Mamlatdar, Rapar who was at the relevant time, i.e. from June 2004 to 2005, a Senior Despatch Clerk working on outward table in the office of the District Collector, Bhuj; statement dated 29th October 2010 of Shri K.S.Prajapati, Section Officer, Revenue Department, Gandhinagar and the Communication dated 4th August 2010 (p.356 of the paper book) from the present Collector, Bhuj to the Principal Secretary, which suggests that the knowledge of the factum of unauthorisedly passing various orders by the applicant was not known to the Government.
He would further submit that as against the above, the Company also preferred as many as 18 applications demanding total lands admeasuring 3,24,153 sq.meters belonging to Survey Nos.667, 668, 670 and 890, for which the Committee fixed the rate at Rs.15=00 per sq.meter and Rs.16=00 per sq.meter and, thereafter, forwarded the same to the State Government, wherein the Government ultimately fixed the value at the rate of Rs.78=00 per sq.meter vide order dated 6th August 2005 (p.366 of the paper book).
It is further submitted that in order to enable the Investigating Officer to record the statement of the applicant in response to the aforesaid episode, he was issued a summons on three occasions but he failed to appear. As a result of this, an application was made to the Magistrate Court for issuance of a warrant dated 31st December 2010 under Section 70 of the Code of Criminal Procedure.
He would further submit that ultimately, the applicant could be apprehended on 14th February 2011 from a hotel called 'Southern Regency', Karolbaug, New Delhi. When investigating team requested for the supply of identification proof submitted by him to the hotel authorities as well as the details as regards the guest in the Guests Register, shockingly, what was found was that the applicant had submitted driving licence issued by the Transport Authority at Moga, Punjab in the name of Paramjit Singh Sandhu issued on 7th January 2010 with applicant's photograph affixed on the left-hand side. Details of the Guests Register of the hotel showed the said name. Interestingly, on 7th January 2010, the applicant was in police custody since he was arrested for the first time on 6th January 2010 in M.Case No.1/2008 with reference to the alleged criminality in the matter of transfer of Government lands to the members of Nav Nirman Charitable Trust, Bhuj (p.340 of the paper book).
He would further submit that in view of the above, the licence was got cross verified through the concerned authority in Punjab which reported that the licence is a fake one.
He would further submit that copy of the licence was also sent to the Directorate of Forensic Science Laboratory along with the original photograph for the purpose of cross verification and the said expert body clearly observed that, prima facie, original photograph as well as photograph on the xerox copy of the licence matched.
It is further submitted that certain goods like laptop, mobile phone, deed of conveyance, etc. were recovered from the possession of the applicant from the said hotel in New Delhi. The said goods were sent to the Directorate of Forensic Science Laboratory, Gandhinagar which, in turn, has suggested that there were chats relating to seeking assistance for issuance of another passport, seeking asylum option. Deed of Conveyance suggests that the applicant is in process of disposing of his residential flat/ building known as 'Bageshree' in Ahmedabad.
I am conscious of the fact that while considering an application for bail, an elaborate examination of evidence and detailed reasons touching the merits of the case, which may prejudice the accused, should be avoided. But, there is a need to indicate in such order at least prima facie reasons concluding why bail is being granted or not being granted. I have recorded the submissions of both the sides exhaustively so that either of the side may not feel that the entire matter has not been considered in its true perspective.
As to the object of keeping an accused person in detention during the trial, it has been stated that the object is not punishment, that to keep an accused person under arrest with the object of punishing him on the assumption that he is guilty even if eventually he is acquitted is improper. This is most manifest. The only legitimate purposes to be served by keeping person under trial in detention are to prevent repetition of the offence with which he is charged where there is apparently danger of such repetition and to secure his attendance at the trial. The first of those purposes clearly to some extent involves an assumption of the accused's guilt, but the very trial itself is based on a prima facie assumption of the accused's guilt and it is impossible to hold that in some circumstances it is not a proper ground to be considered. The main purpose, however, is manifestly to secure the attendance of the accused.
Whether on the facts set out in the earlier part of the order there is or is not reasonable ground for believing that the accused-applicant has committed the offence with which he is charged is the moot question.
I am of the opinion that there is a prima facie case against the accused-applicant as set out by the prosecution. The recovery of the mobile handset with a sim card registered in the name of the Vice President of the Company from the possession of the accused-applicant and the usage of the mobile with the sim card for a long period of time coupled with payment of bill of more than Rs.2 lakhs by the Company, prima facie, is suggestive of the fact of close proximity between the accused-applicant and the Company.
The different orders of allotment of land at the rate of Rs.15=00 per sq.meter in favour of the Company and the manner and method in which the orders were passed and the lands were allotted is prima facie suggestive of the fact that the accused-applicant acting corruptly favoured the Company at the cost of public exchequer and revenue. It is obvious that nobody would do anything for nothing. Though there may not be any direct evidence of monetary gain derived by the accused-applicant, but from the circumstances it can be inferred that the Company must have also obliged the accused-applicant in some manner or the other. The allegations of the prosecution that the orders of allotment of lands at the rate of Rs.15=00 per sq.meter were deliberately withhold from the Government by not forwarding the copy of the same with a guilty mind cannot also be brushed aside easily.
Whether the copies of the orders of allotment of lands from time to time were forwarded to the Revenue Department of the State Government or not, is an issue which can be decided by the trial Court after leading evidence. It is too early to prejudge this particular allegation. However, as on today, prima facie, there are two statements of the witnesses in the charge-sheet to suggest that none of the orders were forwarded to the State Government though in each of the orders a copy to the Government is said to have been forwarded has been shown. It is not desirable, in view of the fact that it will be for the trial Court to pronounce judgment on the merits of the evidence, for me to say anything further. But, it is necessary to say this much to make it clear that I have taken into consideration the following guiding principles. They are as under:
Whether releasing the accused on bail is in any way forbidden by any statutory provision?
Whether he would intimidate the witnesses or win-over them for getting support to his defence and/or for abstaining from supporting the prosecution?
Whether he would be available easily at the time of his trial and would submit to the custody if convicted and sentenced at last or would flee and would not be available?
Whether he would tamper with the evidence?
Whether he would commit like-wise or any other offence or wrong directly or indirectly remaining behind curtain?
Whether he would be retributive or revengeful or retaliative, i.e. whether his release will endanger safety of the persons, viz. complainant and witness or other concerned or property?
Whether his own safety is likely to be endangered?
Whether larger good, national interest, social order, national security, public safety and/or health are likely to be jeopardised?
The nature and gravity of offence being shocking and alarming or barbaric and day in and day out its effect spreads panic amongst the people or section of the people or damages civilization in the society turning back to jungle law?
Other peculiar circumstances of each case appearing on record, dictating the exercise of discretion in particular way.
To state in short in different words, is to examine whether accused after being enlarged on bail, is likely to act or behave in a manner injurious to the interest of the prosecution or larger good, or national interest misusing the liberty granted. If the answer to any of the above first nine points is in the affirmative, or the consideration of 10th point signals premonition or forewarning of any evil or wrong or misfortune and puts the Court at its guard the bail must ordinarily be refused.
I would have leaned in exercising my discretion in favour of the accused-applicant even while accepting the case of the prosecution, prima facie. However, I cannot ignore the fact that the accused-applicant is facing as many as five prosecutions as on today. Had it been one solitary case or one solitary prosecution, the prayer for bail could have been considered. In one of the prosecutions, the accused-applicant has been ordered to be enlarged on bail by the Hon'ble Supereme Court, but at that relevant point of time, that was the only case registered against the accused-applicant except one prosecution for the offences punishable under the Prevention of Corruption Act, 1988 wherein, till this date, the accused-applicant has not been arrested.
I also cannot ignore the fact that the accused-applicant was not available and was absconding. As the accused-applicant failed to make himself available for the purpose of interrogation, a warrant under Section 70 of the Criminal Procedure Code had to be issued by the concerned Court. Ultimately, the accused-applicant could be apprehended on 14th February 2011 from a hotel called 'Southern Regency', Karolbaug, New Delhi. Investigation reveals that the accused-applicant rented a room in the said hotel introducing himself as one Paramjit Singh Sandhu of Punjab. He also managed to obtain a bogus and a false driving licence issued by the Transport Authority at Moga, Punjab in the name of Paramjit Singh Sandhu with accused-applicant's photograph affixed on the left hand side. It is evident to note that this particular licence was prepared on 7th July 2010 when the accused-applicant was actually in judicial custody in connection with one another offence in which, ultimately, the Hon'ble Supreme Court granted bail in September 2010. Investigation also reveals that in the register maintained by the hotel authorities, the accused-applicant entered his name as 'Paramjit Singh Sandhu' of Punjab and by way of identification proof, he supplied copy of a forged and false driving licence.
I also cannot ignore the fact that certain items like laptop, mobile phone, deed of conveyance, etc. were recovered from the possession of the accused-applicant from the said hotel in New Delhi. As per the report of the Directorate of Forensic Science Laboratory, Gandhinagar, there were some chats on the laptop relating to obtaining one another passport, seeking asylum option, etc. Copy of one deed of conveyance was also found suggestive of the intention of the accused-applicant in disposing of one of his properties at Ahmedabad. The tendency which the accused-applicant has exhibited or displayed has shaken the confidence of this Court. With all these, it is difficult to come to a prima facie conclusion that the accused-applicant would be available for trial. Serious apprehension of accused fleeing from justice has been expressed, more particularly, keeping in mind his position and status in the society and the resources available with the accused-applicant.
I may also deal with one more submission of the accused-applicant and that is with regard to delay.
It has been vociferously submitted that all the alleged acts of the accused-applicant complained of are of the year 2003 and 2004. It has been vociferously submitted that after six odd years, all of a sudden, the accused-applicant is now being questioned as regards the manner in which he had passed the orders of allotment.
It is true that the prosecution is for the acts committed during the period between 2003 to 2006, but the prosecution itself is on the footing that the accused-applicant very cleverly did not bring to the notice of the Government the fact of huge parcels of lands allotted in favour of the Company and it is only at a later stage that all these illegalities surfaced on record and that is how the accused-applicant is now being prosecuted. In any case, delay in such type of cases cannot be a factor to brush aside the entire case of the prosecution. It is well-settled position of law that "crime never dies".
However, with everything I have observed, I would be failing in my duty if I ignore or avoid to place the following facts on the record of this order:-
Prosecution case is very clear. According to the prosecution, a conspiracy was hatched and as a part of the conspiracy, the accused-applicant passed certain orders of allotment of lands in favour of the Company. It is but obvious that the accused-applicant would not, just for the sake of obliging the Company, must have passed the orders of allotment. The question which is haunting the mind of this Court is as to why no action has been taken against the Company in whose favour the parcels of lands came to be allotted and that too huge parcels of lands. If conspiracy is alleged then, why the Company is not an accused or no person from the Company has been made an accused. Investigation is over, charge-sheet is filed. Is it the case that during the entire course of investigation the prosecution was unable to find any evidence against the Company or any responsible person of the Company who could be a part and parcel of the conspiracy as alleged. This question has not been satisfactorily answered.
If the State is so much concerned about the loss of public exchequer or revenue, then why till this date no concrete steps have been taken to recall the orders of allotment of lands. It is true that now the Company is having a huge manufacturing unit, but still if the earlier allotments are illegal and are said to have been obtained by playing fraud and by commission of offence, then the State can definitely initiate appropriate steps in this regard.
As on today, nothing concrete is coming forth on record to even, prima facie, suggest that the State Government has taken any action in this regard against the Company.
Learned Advocate General Mr.Kamal Trivedi, during the course of his submissions, has assured the Court that the Government will not turn a blind eye towards the above referred two aspects and would definitely take appropriate steps in this regard.
I hope and trust that the State Government takes the statement made by the learned Advocate General at the bar seriously.
I am also conscious of the fact that all offences with which the accused-applicant has been charged and for which charge-sheet has been filed are magistrate triable offences. Magistrate courts in the State of Gujarat are flooded with cases. They hardly get time to take up serious and important trials like the present one. Magisterial courts should not just rest contented by conducting cases under the Bombay Prohibition Act, Gambling Act, Plea Bargaining, etc. As a result of which the accused keeps on languishing in jail for an indefinite period of time. It is true that mere delay in concluding the trial would not by itself a ground to grant bail, but at the same time, to strike balance between personal liberty and public interest, some care has got to be taken.
In any prosecution, be it for a major offence or a minor offence, what is important is not to merely arrest a person and put him behind the bars. What is important for the prosecution in cases of the present nature is to see as to how fast they can commence the trial, examine the witnesses and try their best to see that the charge which has been framed against the accused-applicant is established and he is appropriately punished. Object of prosecution is to penalise the offender for the offence committed. This is not a case of preventive detention that the person is detained with the object that he may not indulge in any illegal activity. This is a case of punitive detention where crime is to be punished if, ultimately, proved and established. This awareness and zealousness is absolutely lacking now a days. Prosecution is rest contented initially by promptly arresting a person and putting him in jail. Thereafter, the entire seriousness of the prosecution case is forgotten. I once again, at the cost of repetition, state that important thing in any prosecution is to lead cogent, convincing and reliable evidence before the Court as early as possible by securing the attendance of the witnesses promptly and, thereafter, take all legal steps possible to prove the charge against the accused. Way back in the year 1984, Hon'ble Supreme Court in the case of Lt.Col.S.J.Chaudhary v/s. State (Delhi Administration), reported in AIR 1984 618, observed as under:-
"We think it is an entirely wholesome practice for the trial to go on from day-to-day. It is most expedient that the trial before the Court of a Session should proceed and be dealt with continuously from its inception to its finish. Not only will it result in expedition, it will also result in the elimination of manoeuvre and mischief. It will be in the interest of both the prosecution and the defence that the trial proceeds from day-to-day. It is necessary to realise that Sessions cases must not be tried piecemeal. Before commencing a trial, a Sessions Judge must satisfy himself that all necessary evidence is available. If it is not, he may postpone the case, but only on the strongest possible ground and for the shortest possible period. Once the trial commences, he should, expect for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded.
We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his Advocate is finding it difficult to attend the Court from day-to-day. It is the duty of every Advocate, who accepts the brief in a criminal case to attend the trial from day-to-day. We cannot over-stress the duty of the Advocate to attend to the trial from day-to-day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend."
It is true that the Hon'ble Supreme Court spoke about the practice for the trial to go on from day-to-day before a Court of Sessions. I am of the view that at times taking into consideration the nature of the offence and the peculiar facts and circumstances of the case, even a Magisterial court should take up the trial on day-to-day basis and except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded.
In view of the aforesaid discussion, I do not find any merit in this Application and, therefore, the Application, praying for bail, is rejected with the following directions to the concerned trial Court:-
Trial Court is hereby directed to see that charge is framed against the accused-applicant and other co-accused in connection with Criminal Case No.845/2011 arising from I-CR No.9/2010 registered with State CID Crime Rajkot Zone Police Station for the offences punishable under Sections 217, 409, 465, 467, 468, 471 read with Section 120B of IPC, within a period of fifteen days from the date of receipt of the order of this Court.
Trial Court would take care to avoid granting any undue adjournments, unless it becomes absolutely imperative.
After the appropriate charge is framed against the accused-applicant and other co-accused, the trial Court is directed to take up the case on day-to-day basis as early as possible and conclude the trial of Criminal Case No.845/2011 as expeditiously as possible, in any event, on or before 31st December 2011.
Parties are directed to examine only material and most essential witnesses and they will cooperate with the trial Court.
In case, the trial is not concluded for any reason before 31st December 2011, the accused-applicant would be at liberty to approach the trial Court for grant of bail.
It goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question of bail pending trial and shall not be construed as an expression of the final opinion in the main matter.
(J.B.Pardiwala, J.) After the pronouncement of the order, learned counsels brought to the notice of this Court that the accused-applicant has preferred an application under Section 406 of the Code of Criminal Procedure before the Hon'ble Supreme Court, seeking transfer of Criminal Case No.845/2011 instituted against him, outside the State of Gujarat. It is also brought to my notice by learned counsels that notice has been issued by Hon'ble Supreme Court and the matter will be taken up for further hearing sometime in July 2011.
Learned counsels would submit that the directions which have been issued by this Court for expeditious disposal of the trial would be directly in conflict if some orders are passed by Hon'ble Supreme Court in this regard and virtually would render the application pending before the Hon'ble Supreme Court infructuous.
Having regard to the request of the learned counsels for the accused-applicant, since the application for further hearing is likely to be taken up by Hon'ble Supreme Court in the month of July 2011, the directions which have been issued to the trial Court as regards the expeditious commencement of the trial and its disposal shall remain stayed till 31st July 2011. Rest of the order shall remain as it is.
(J.B.Pardiwala, J.) /moin Top