Karnataka High Court
Sri N. Viswanathan vs State By Central Bureau Of ... on 23 September, 2013
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL PETITION No.4597/2013
BETWEEN:
SRI N.VISWANATHAN
S/O NALGAMU CHETTIAR VISWANATHAN
AGED ABOUT 72 YEARS
R/AT NO. 135, 1ST CROSS
5TH BLOCK, KORAMANGALA
BANGALORE-560095. ... PETITIONER
(BY SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR SRI
ABHIJIT HARANAHALLI, ADV.)
AND:
STATE BY CENTRAL BUREAU OF INVESTIGATION-ACB
AT BANGALORE, REP. BY ITS
SPECIAL PUBLIC PROSECUTOR. ... RESPONDENT
(BY SRI C H JADHAV, SENIOR ADVOCATE)
THIS PETITION IS FILED UNDER SECTION 439 CR.P.C.,
PRAYING TO ENLARGE THE PETITIONER ON BAIL IN FIR NO.RC
19(A)/2011 REGISTERED BY CBI, ACB, BANGALORE & ETC.
***
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 12.09.2013, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:
2
ORDER
The petitioner has been arrayed as accused No.5 in final report submitted in R.C.19(A)/2011 for offences punishable under sections 120B r/w 379, 420, 427 & 447 IPC and also for an offence punishable under section 13 (2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (for short, 'the P.C.Act'). He has been in judicial custody from 05.06.2013. He has sought for bail.
2. The aforestated final report is the outcome of investigation conducted in pursuance of the orders of Supreme Court dated 23.09.2011 in Special Leave (Civil) 7366-7367 & connected matters reading as hereunder:-
"(iii) Vide the said report of CEC, it is further pointed out to this Court that massive illegal mining by a third party was being done in mining lease No.1111 of M/s.NMDC. That, despite various complaints to the numerous authorities in the State of Karnataka by M/s.NMDC no steps were taken to prevent that third party from resorting to massive illegal mining in mining lease No.1111 of M/s.NMDC 3 till this court banned mining. These complaints were made against the third party, namely, M/s.Deccan Mining Syndicate ("DMS" for short) for encroaching into M/s.NMDC's mining lease area. Even the complaint lodged by M/s.NMDC against M/s.DMS to the Police Circle Inspector, Sandur on 10.07.2009 was interpolated (See Annexure R-1 to the Report being letter dated 15.09.2011 by M/s.NMDC Limited to CEC). We also want CBI to investigate the above illegalities including encroachment by M/s.Deccan Mining Syndicate in the area leased out to M/s.NMDC."
3. Based on the above order, CBI, ACB, Bangalore registered FIR in RC.19(A)/2011 for offences punishable under sections 120-B, 379, 411, 420, 427, 447, 468 & 471 IPC, for offences punishable under sections 13(2) r/w 13(1)(d) of P.C.Act, for an offence punishable under section 26 of the Indian Forest Act, 1927 and also for offences punishable under sections 21 r/w 4(1), 4(1)(A) & 23 of the Mines & Minerals (Development and Regulation) Act, 1957. 4
4. In brief, the allegations made against petitioner (accused No.5) in chargesheet and annexed documents are as follows:-
"Shri N Viswanathan (A-5) is a retired IAS officer of Karnataka cadre and he was the then Principal Secretary, Commerce and Industry Department from 26.06.1996 to 25.10.1999. He is responsible for submitting the proposal to Govt. of India without mentioning the intention of Govt. of Karnataka to change the sketch and suppressed the fact including the illegalities committed by M/s.DMSPL. This act committed by him with an intention to get renewal for M/s.DMSPL with a revised sketch to facilitate illegal mining. He had given illegal instructions to his subordinates to suppress the facts in the letter sent to Govt. of India. He also responsible for withdrawing the proposal from Govt. of India and dealt at Govt. of Karnataka resulted in renewal of mining lease to M/s.DMSPL with a revised sketch on 25.01.1999 which is against the MMDR Act and Mineral Concession Rules and thereby facilitated the illegal iron ore mining by M/s.DMSPL from the mining area of 5 M/s.NMDC. This he had done with a conspiracy with other accused persons for which undue benefit has derived by the mine owners and facilitated the illegal iron ore mining which resulted in wrongful loss to the tune of Rs.1232 crores to the State exchequer and corresponding wrongful gain to accused persons."
5. The details of mining lease and subsequent renewals are stated thus:-
"f. M/s.Deccan Mining Syndicate Private Ltd. (DMSPL) was registered with ROC, Bangalore with the following Directors; viz. Shri SM Jain and Smt.Kamala Devi, later Shri Rajendra Kumar Jain S/o Shri S M Jain took over as the Managing Director of the Company consequent upon the death of his father, Shri S M Jain, on 01/05/2005. M/s.DMSPL took over the partnership firm M/s.DMS and all its liabilities w.e.f.25/09/1991. Thus, the Mining Lease no.636, initially granted in favour of Shri M J Boal on 19.05.1966, was renewed by the Dept. of Mining and Geology, GOK, on various occasions as detailed under:-6
Sl. No. M L No. Period
1 636 From 20.05.1966 to 19.05.1986
(20 Years)
2 2080 From 20.05.1986 to 19.05.1996 (first
renewal executed on 26.11.1988)
3 2080A From 20.05.1996 to 19.05.2006 (Second
installment of the first renewal with a modified sketch and penalty of Rs.10 lakhs for the illegal mining done by the lessee, vide notification dtd.29.01.1999 4 2525 From 20.05.2006 to 19.05.2026 (second renewal executed on 15.07.2006)
6. It is alleged that petitioner (the then Principal Secretary, Department of Commerce & Industries, Government of Karnataka) had committed illegal acts attracting offences stated in final report in the matter of renewal of second instalment of first renewal of mining lease in favour of M/s.Deccan Mining Syndicate Private Limited (for short, 'DMSPL') vide Notification dated 29.01.1999.
7. I have heard Sri Ashok Haranahalli, learned senior counsel for petitioner and Sri C.H.Jadhav, learned senior counsel for respondent (CBI).
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8. Before adverting to the submissions of learned counsel for parties and documents relied upon by learned counsel for parties, it is necessary to state that a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary.
9. The perusal of documents filed along with final report would prima facie indicate that offences alleged against petitioner are economic offences involving huge loss of public funds to State exchequer. In the final report, it is stated that there is wrongful loss of a sum of Rs.1,232 crores to State/NMDC and Government of India and corresponding wrongful gain to DMSPL.
10. Sri C.H.Jadhav, learned senior counsel for CBI has relied upon decisions reported in:-
I. 2013 AIR SCW 2800 (in the case of Y.S.Jagan Mohan Reddy Vs. Central Bureau of Investigation) 8 II. Criminal Appeal No.728/2013 dated 09.05.2013 (in the case of Nimmagadda Prasad Vs. Central Bureau of Investigation)
11. In a decision reported in 2013 AIR SCW 2800 (in the case of Y.S.Jagan Mohan Reddy Vs. Central Bureau of Investigation), the Supreme Court has held:-
"15. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
16. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the 9 presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations."
12. In a decision reported in Criminal Appeal No.728/2013 dated 09.05.2013 (in the case of Nimmagadda Prasad Vs. Central Bureau of Investigation), the Supreme Court has held:-
"26. Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fiber of the country's economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat vs. Mohanlal Jitamalji Porwal and Anr. (1987) 2 SCC 364 this Court, while considering a request of the prosecution for adducing additional evidence, inter alia, observed as under:-
"5.....The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon 10 passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest...."
27. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words 11 "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
28. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
13. The learned senior counsel for petitioner has relied on the judgment of the Supreme Court reported in (2012) 1 SCC 40 (in the case of Sanjay Chandra Vs. Central Bureau of Investigation), wherein the Supreme Court has held:- 12
"20. The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Penal Code, 1860 and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the prosecuting authorities and the possibility of absconding from justice.
21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe 13 more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un- convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive 14 content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un- convicted person for the purpose of giving him a taste of imprisonment as a lesson.
24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge".
The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the 15 Constitutional Rights but rather "recalibrating the scales of justice".
39. Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds:- The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
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40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
41. This Court in Gurcharan Singh and Ors. Vs. State (AIR 1978 SC 179) observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure the fair trial of the case. Though, this aspect is dealt by 17 the High Court in its impugned order, in our view, the same is not convincing.
42. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is: whether the same is possible in the present case.
43. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, are voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, 18 would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet.
44. This Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated :-
"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like 19 Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."
45. In Bihar Fodder Scam (Laloo Prasad case23), this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-trial prisoners would not serve any purpose.
46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of 20 the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.
14. In view of what has been held in the aforestated decisions, this court in order to decide this petition has to consider the following amongst others:-
I. The nature of accusations;
II. The nature of prima facie material in support of
accusations;
III. The severity of punishment, which conviction will
entail;
IV. The character of accused;
V. The circumstances which are peculiar to accused;
VI. The reasonable possibility of securing petitioner at
the time of trial;
VII. The reasonable apprehension of witnesses being
tamped with;
VIII. The larger interest of public/State; 21
IX. The prospects of speedy trial; X. The stage at which bail is sought.
15. As already stated, offences for which final report is filed and the documents filed along with final report would prima facie indicate that offences are economic offences, involving wrongful loss to State exchequer and corresponding wrongful gain to DMSPL. In the final report, it is projected as a sum of Rs.1,232 crores (Rupees One Thousand Two Hundred Thirty Two crores).
16. Before recording a finding on prima facie case within the limitations set out supra, it is necessary to state certain facts which are not in dispute:-
It is not in dispute and cannot be disputed that petitioner was the Principal Secretary, Department of Commerce & Industries, Government of Karnataka, during period between 26.06.1996 to 25.10.1999. The mining lease (MOL) 2080 with modified sketch was renewed by Government of Karnataka in favour of DMSPL vide Notification dated 29.01.1999 reading as hereunder:-22
"GOVERNMENT OF KARNATAKA No.CI 50 MMM 97 Karnataka Govt Secretariat, M.S.Building, Bangalore, dated: 29.01.1999.
NOTIFICATION In pursuance of Sub-Section (2) of Section 8 of the MM(R&D) Act, 1957 and as per letter No.7(2)/98-M.IV, dated 5.8.1998 of Government of India, Ministry of Mines, New Delhi, read with the Notification No.16(56)/96-M-VI, dated 30.1.97, the Government of Karnataka hereby accord sanction for the 2nd instalment of 1st renewal of Mining lease NO.2080 for a period of 10 years with effect from 20.5.1996 to 19.5.2006 in favour of M/s.Deccan Mining Syndicate (P) Ltd., for Iron Ore over an area of 47.00 acres of land in Kammataravu village, Sandur Taluk, Bellary District, as per the modified sketch furnished by the Director of Mines and Geology, Bangalore, with his letter No.DMG/246 AML 95/RML.2080/140, dated 16.4.98 subject to compliance of the provisions of the MM(R&D) Act, 1957, and Mineral Concession Rules, 1960 as amended from time to time and all other applicable Acts and Rules including Forest (Conservation) Act, 1980. The grant of Mining 23 Lease is also subject to the terms and conditions appended hereto.
BY ORDER AND IN THE NAME OF THE GOVERNOR OF KARNATAKA, (B.V.KUMARASWAMY) Desk Officer (Mines), Commerce & Industries Department"
17. The official correspondence and various office notes approved by petitioner, which had preceded the issuance of aforestated notification of renewal of lease with modified sketch are part of investigation records.
18. On consideration of investigation records, the following facts are prima facie established:-
The petitioner was aware that DMSPL had carried out its mining activities beyond the mining area (47 acres) leased to it. The DMSPL has defaced boundary marks with impunity. The DMSPL had shifted mining area leased to it towards South-West and encroached 10 acres of mining area leased to NMDC. Before renewal of mining lease in favour of 24 DMSPL, this illegal encroachment committed by DMSPL was a well known fact. The petitioner was also aware of this fact.
19. At the first instance, petitioner and concerned officials had thought of sending the application for renewal of lease in favour of DMSPL to the Government of India. They had written a letter to Government of India, seeking approval of Government of India for renewal of lease in favour of DMSPL for a period of 10 years with effect from 20.05.1996. The concerned officials of Department of Commerce & Industries had addressed a letter to Government of India with the approval of petitioner. In the aforestated letter, they had conveniently omitted to state illegal encroachment made by DMSPL and violation of conditions of lease by DMSPL. As per the statements of witnesses namely M.Venkatarasappa, the then Under Secretary, Department of Commerce & Industries, Government of Karnataka that petitioner had given instructions to witnesses not to disclose details relating to revised mining sketch for which renewal was sought and also about illegal encroachment of mining area 25 by DMSPL in the letter dated 22.04.1998 sent to Government of India, Ministry of Mines & Geology. The statement of witnesses namely Appaiah Gouda B.Patil, the then Minister of Mines & Geology, Government of Karnataka would reveal that petitioner (Principal Secretary) had not brought to the notice of the Minister about illegal encroachment of mining area by DMSPL and also renewal of lease with modified mining sketch in favour of DMSPL.
20. The petitioner had consented to levy of penalty on DMSPL for illegal encroachment of mining area by DMSPL. The petitioner had agreed for withdrawing letter sent to Government of India for renewal of lease in favour of DMSPL. The petitioner had agreed that lease in favour of DMSPL vide Notification dated 29.01.1999 could be renewed by Government of Karnataka and approval of Government of India was not necessary. This is in clear violation of section 8 of the MMDR Act, as it was in force on 29.01.1999 Section 8 reads thus:-
26
"8. Periods for which mining leases may be granted or renewed.-
b[(1) The maximum period for which a mining lease may be granted shall not exceed thirty years:
Provided that the minimum period for which any such mining lease may be granted shall not be less than twenty years.] a [(2) A mining lease may be renewed for c [a period not exceeding twenty years]:
Provided that no mining lease granted in respect of a mineral specified in the First Schedule shall be renewed except with the previous approval of the Central Government.] (3) Notwithstanding anything contained in sub-section (2), if the Central Government is of opinion that in the interests of mineral development it is necessary so to do, it may, for reasons to be recorded, authorise the renewal of a mining lease for a further period or periods not exceeding d[twenty years in each case]."
(underlining supplied by me) 27
21. At this juncture, it is relevant to state that as on 29.01.1999, iron ore was classified under I-schedule of the MMRD Act. However, section 8 was amended by Act No.38/1999 with effect from 18.12.1999 by brining distinction between minerals specified in Part A or Part B of the First Schedule and minerals specified in Part III of First Schedule. Be that as it may, as per section 8 of MMRD Act, which was in force on 29.01.1999, the approval of Government of India was necessary for renewal of mining lease granted in respect of a mineral specified in schedule 1. In the instant case, renewal of mining lease was not in relation to area and boundaries specified in original lease, it also included new area, as lessee (DMSPL) had shifted mining area towards South-West of area leased to it.
22. The petitioner was the Principal Secretary to the Department of Commerce & Industries, Government of Karnataka. The petitioner has shown official favour in favour of DMSPL for renewal of lease with modified sketch. The petitioner and other persons had usurped the powers of 28 Government of India in the matter of renewal of lease with modified sketch in favour of DMSPL.
23. The learned Senior counsel would submit that decision to renew of Lease in terms of the notification dated 29.01.1999 was taken not only by the petitioner but also by other high ranking officers including the Director of Mines and Geology. The Director of Mines and Geology had put up a note suggesting an option to renew the lease with the modified sketch by collecting penalty from DMSPL to condone illegal acts of encroachment by DMSPL.
24. The learned Senior counsel would further submit that in W.P.No.10335/1998 c/w W.P.No.19766/2005 dated 31.03.2008, this court has considered the boundary disputes relating to mining areas between DMSPL and M/s.NMDC. This court has passed the following order:
"i) W.P.No.10335/1998 and W.P.No.19766/2005 are disposed of in the above terms with the following directions.
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ii) The respondent-State Government is directed to secure the survey done in terms of Rule 33 of the MC Rules keeping in view the above observations and redraw the sketch to accompany the renewal of ML No.1111 and shall thereafter treat the same as the sketch pursuant to notification dated 04.04.2005 and may also issue corrigendum if need be.
iii) The renewed lease deed in favour of NMDC shall be executed enclosing the sketch to be prepared in the manner stated above and NMDC will be entitled to carry out mining operations in such area subject to compliance of other legal requirements."
25. The learned Senior counsel would submit that in the circumstances, if there was an error in the decision taken by the petitioner, criminality cannot be attached to such erroneous decision.
These submissions cannot be accepted for the following reasons:
30
I The petitioner was aware that renewal of mining lease in favour of DMSPL as per modified sketch, which included area outside the area of original lease, cannot be done by the Government of Karnataka and the approval of Government of India was mandatory.
II The concurrence given by the petitioner to levy penalty to condone illegal acts of encroachment and regularise the illegal acts of encroachment made by DMSPL by renewing the lease in the illegally encroached area cannot be condoned in the eye of law.
III It is true that there are provisions under the MMDR Act to levy penalty for mining outside the leased area however, there are no provisions to regularise illegal encroachment by the Lessee. There are no provisions to levy penalty to regularize the illegal encroachment by the Lessee.
IV The decision rendered by this court in W.P.No.10335/1998 c/w W.P.No.19766/2005 dated 31.03.2008 regarding boundary dispute between NMDCL and DMSPL has been set at rest in view of acceptance of 31 report of CEC (Central Empowered Committee) by the Supreme Court of India.
V It is true that high ranking officials including the Director of Mines and Geology have put up notes of renewal of lease with modified sketch in favour of DMSPL. What consequences should have followed the acts of aforestated officials cannot be considered in this petition as they are not before this court.
The statements of witnesses and investigation records cannot be suspected at this stage. The statements of witnesses would clearly indicate that even in the matter of levy of penalty, the petitioner was in favour of DMSPL. The then Minister of Mines and Geology, Government of Karnataka namely Appaiah Gouda B. Patil in his statement has clearly disclosed that petitioner had not passed any orders with regard to levy of penalty. On the other hand, he had argued with the Minister for taking letter from the Lessee (DMSPL) for approval of lease. The witness has further stated that the renewal of lease with modified sketch 32 in favour of DMSPL as indicated in the notification dated 29.01.1999 was not brought to his notice by the petitioner (Principal Secretary of Commerce & Industries Department).
26. The learned Senior counsel would submit that, as per the final report, the petitioner is alleged to have conspired with other accused namely accused no.1 to 4 and accused no.6 to 8 during the period between 1980 and 2010. The petitioner was the Principal Secretary of Industries and Commerce Department, Government of Karnataka during the period between 26.06.1996 and 25.10.1999. The petitioner retired from the service in the month of June'2002. Therefore, it is difficult to conceive that petitioner had conspired with other accused before 26.06.1996 and after his retirement in the month of June'2002. Therefore, the allegations made against petitioner that he had conspired with other accused are patently false.
27. In the discussion made supra, I have referred to the Notification dated 29.01.1996 and corresponding 33 investigation records to hold that there is prima-facie case against petitioner in showing official favour in the matter of renewal of lease in favour of DMSPL in terms of Notification dated 29.01.1996. However, while considering other aspects, it is necessary to refer to investigation records to discuss the circumstances which are peculiar to petitioner.
28. The learned Senior counsel relying on the judgment of Supreme Court reported in (2012) 1 SCC 40 (in the case of Sanjay Chandra -vs- Central Bureau of Investigation) has made following submissions:
I The presumption of innocence is very much available to the petitioner until duly tried and duly found guilty.
II The punishment begins after conviction.
III Even while considering the bail application with reference to economic offences of huge magnitude, this court cannot lose sight of the fact that investigation agency has completed the investigation and charge sheet is already filed.34
IV This court will have to consider not only the seriousness of the charges but also the severity of punishment for the offences with which the accused have been charged.
The learned Senior counsel would submit that petitioner is aged about 72 years and he is suffering from age related ailments like Atypical Trigeminal Neuralgia Aching, burning or severe pain localized to one or more teeth and adjacent jaw, slip disc, Hypertension and other ailments. The apprehensions that petitioner is likely to flee away from justice is not reasonable so also the apprehension that petitioner is likely to interfere with prosecution witnesses.
29. The learned Senior counsel would submit even in the decision reported in 2013 AIR SCW 2800 (in the case of Y.S.Jaganmohan Reddy -vs- Central Bureau of Investigation) the Supreme Court having regard to the fact that investigation is still under progress has rejected the 35 bail. The Supreme Court has not foreclosed the renewal of request for grant of bail after the final report is filed.
30. The learned Senior counsel referring to the judgment of the Supreme Court in Criminal Appeal No.728/2013 (in the case of Nimmagadda Prasad -vs- Central Bureau of Investigation) submits that, in the aforestated case, the investigation is under progress. The Supreme Court has reserved liberty to the appellant therein to renew his request for bail before the trial court after the final report is filed and the trial court is free to consider the bail application independently on its own merits without being influenced by dismissal of Criminal Appeal 728/2013.
The learned Senior counsel would submit that, apart from the magnitude of offences and punishment provided there of, the facts peculiar to the petitioner will have to be considered. The detention of petitioner in Jail during pre trial stage more particularly, when the entire investigation is over and final report is filed, will be punishment before conviction.
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31. The learned Senior Counsel for CBI would submit that in a decision reported in (2012) 1 SCC 40 (in the case of Sanjay Chandra -vs- Central Bureau of Investigation) the Supreme Court was considering the bail petition after charges were framed by the trial court.
32. In Sanjay Chandra's case, the petitioner had sought for bail after the charge was framed however, in Para 46 of the judgment, the Supreme Court has held:
"46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent 37 conditions in order to ally the apprehension expressed by CBI."
In the aforestated judgment, the emphasis is on the completion of investigation and submission of final report.
Now adverting to maximum punishment provided for offences for which the accused is charged, it is necessary to state that an offence under Section 420 IPC and also offences punishable under Sections 13 (1) (d) r/w 13 (2) of the Prevention of Corruption Act, are punishable with imprisonment extending to a period of 7 years.
33. The petitioner (accused) was the Principal Secretary of Industries and Commerce Department, Government of Karnataka during the period between 26.06.1996 and 25.10.1999. The illegal mining activities in the State of Karnataka became rampant and assumed alarming proportions after the year 2000 and shocking after the year 2004. Therefore, the petitioner cannot be prima-facie held liable for illegal activities which had continued upto 2010. 38
34. The final report has been submitted by the Central Bureau of Investigation. The petitioner is aged about 72 years and he is suffering from aforestated ailments and other age related ailments; the petitioner is a resident of Bangalore; the petitioner does not bear criminal antecedents; the petitioner has retired from the service in the month of June'2002; the situation of petitioner fleeing away from justice is rather remote. The incriminating evidence against the petitioner is in the form of documentary evidence. In the circumstances, the apprehension that petitioner is likely to tamper with prosecution witnesses can be allyed by imposing suitable conditions. If the petitioner were to tamper with prosecution witnesses, the prosecution can seek for cancellation of bail. The facts and circumstances do not indicate that, if petitioner is released on bail, that would affect the larger interest of public or State.
35. There are 112 chargesheet witnesses. The prosecution has also relied on voluminous documentary evidence. In the 39 final report, it is stated that investigation pertaining to role played by Gali Janardhana Reddy and Mohammed Ali Khan in pressurising the officials not to entertain the complaints alleged by M/s.NMDC against M/s.DMSP after the year 2008 is in progress. In the circumstance the chances of speedy trial are remote.
36. Thus, on overall consideration of facts and circumstances, magnitude of offences alleged against the petitioner, maximum punishment provided for such offences and other relevant factors bearing on the bail application and also having regard to age of petitioner and age related ailments of petitioner, antecedents of petitioner and facts and circumstances which are peculiar to the petitioner, I am of the opinion that petitioner is entitled to bail.
37. Therefore, I pass the following:
ORDER The petition is accepted. The petitioner is released on bail, subject to following conditions:-40
I. The petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) and offer two sureties for the likesum to the satisfaction of learned Special Judge.
II. The petitioner shall not intimidate or tamper with prosecution witnesses.
III. The petitioner shall regularly attend the court.
IV. The petitioner shall not leave the jurisdiction of Special Court, without prior permission of learned Special Judge.
V. The petitioner for the purpose of further investigation shall appear before the Investigating Officer whenever called upon to do so.
VI. If the petitioner were to violate the aforestated conditions, respondent (CBI) is at liberty to move the Special Court for cancellation of bail.41
It is made clear that observations made in this order are confined for disposal of this petition. The learned Special Judge during subsequent stages of the case shall not be influenced by the observations made herein.
Sd/-
JUDGE SNN