ORDER
J.G. Chitre, J.
1. This order shall also govern the disposal of Misc. Criminal Case Nos. 3062 of 1996, Chandrashekhar Dagaonkar v. State of M.P., 3313 of 1996, Prabhakar Kale v. State of M.P., 3379 of 1996, Rajendra Kumar Goel v. State of M.P., 3425 of 1996, Manmohansingh Bais v. State of M.P., 3435 of 1996, Ashok Kumar Baijal v. State of M.P., 3441 of 1996, Ramesh Chandra Sankhla v. State of M.P., 3442 of 1996, Jagdish Sharma v. State of M.P. and 3465 of 1996, Amritlal Patel v. State of M.P.
2. These are applications Under Section 439 of Criminal Procedure Code, 1973 (for short the Code) for grant of bail. The applicants-accused who are Government or semi-Government servants, contractors are indicted for crimes revolving around provisions of Sections 201, 409, 420, 467, 468, 471, read with Section 120B of Indian Penal Code. Some of the applicants-accused who are Government servants are also being prosecuted for offences punishable under provisions of Sections 13(1)(c), 13(d), (ii), (iii) and 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as the Act for short). The Government officers and the contractors are also charged for excess payment of running bills. The works of construction which are the cause behind these prosecutions are Subhash Nagar Complex, Vallabh Nagar Complex and road widening work.
3. Some complaints were made alleging fraud, forgery and misappropriation in respect of the construction works mentioned above in the year 1978. The Government directed an enquiry which was conducted by Shri Modak (Officer on Special Duty). He made report against one Mr. Agal and his subordinates. Shri Agal was indicted as an accused but unfortunately he expired. The applicants, Government, semi-Government servants worked as his subordinates during the relevant period for temporary period in accordance with their involvement in the said construction works as the part of their official duty. The contractors were the persons who executed the said construction works. One Shri Bais, Ex-Chief Engineer, made the enquiry as directed by the Government and submitted his report. In view of that report investigation started. Presently the investigating officer is Dr. Raman Sikarwar and after completion of the investigation he is to submit charge-sheet today in the Special Court, Indore.
4. Shri J. P. Gupta, senior counsel appearing with Shri S. C. Bagadiya for applicant Chandrashekar Dagaonkar, placed reliance on the judgment of Supreme Court in the matter of Mohan Singh v. Union Territory, Chandigarh, AIR 1978 SC 1095 and submitted that in the said case even though there was allegation of corruption which was prima facie” substantial, bail was not refused. Shri Gupta submitted that Shri Dagaonkar was having the charge of the said works only for 7 days and, therefore, his prayer for bail deserves to be granted.
5. Shri Jaisingh, learned counsel appearing for applicant-accused Ashok Kumar Baijal, submitted that the involvement of this accused is also not significant and in addition to that he is suffering from cardiac disease. By placing reliance on the judgments of Supreme Court in the matters of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, AIR 1978 SC 429 and Bhagirathsinh Judeja v. State of Gujarat, AIR 1984 SC 372, he submitted that the prayer made by this accused be allowed.
6. Shri Ashok Shukla by placing reliance on the above said judgments quoted earlier by Shri J. P. Gupta and Shri Jaisingh, submitted that his client Shri P. D. Kale was Assistant Engineer and there was no participation indicating the alleged crimes by him. He further pointed out that the wife of this accused is handicapped on account of amputation of leg. He prayed that the prayer for bail made by this accused be allowed.
7. Shri Sanyal, counsel appearing for Manmohansingh Bais submitted that his client is also suffering from cardiac disease and his participation was also insignificant. Repeating reliance on the above said judgments, he also prayed for bail. He submitted further that the two contractors Ramesh Sankhla and Jagdish Sharma have executed the works as per directions given by the above mentioned officers. He submitted that in fact they are to recover the amount from Government and they intend to file civil litigation in that context. He prayed for bail for these accused.
8. Shri S. H. Agarwal appearing for accused Rajendra Kumar Goel, contractor submitted that in fact his client is to recover the amount of the work done by him in respect of above construction works from the Corporation and for that he has already filed a civil suit. Repeating the reliance on the same judgments, he prayed for bail for the accused.
9. Shri P. K. Shukla appearing for applicant-accused Narendra Kumar Surana submitted that his client is suffering from gallbladder stone and has been medically examined by Dr. S. Nandi, New Delhi who is to perform surgical operation on him in respect of that ailment. Repeating reliance on the said judgments, he prayed for bail for him on medical ground as well as on no participation on his part.
10. Shri S. L. Nagar appearing for Amritlal Patel submitted that his client is Assistant Engineer and had no participation in the alleged crimes. He submitted that this applicant is also suffering from cardiac ailment. Repeating reliance on the same judgments he prayed for bail for this accused on medical ground also.
11. Shri Jaisingh pointed out that his client Ashok Kumar Baijal was admitted in Escort Hospital, New Delhi and has undergone the process of angiography and angioplasty. Shri P. K. Shukla submitted that his client is also to be operated on at New Delhi in recent future. The applicants who are putting medical ground for bail have annexed some documents in respect of their ailment. Those documents prima facie show that those persons are suffering from the ailment mentioned by their counsel.
12. Shri Sen, Deputy Government Advocate assisted by Shri V. S. Bule, Panel Lawyer for the prosecution and Dr. Raman Sikarwar, Investigating Officer submitted that the applicants are facing a grave charge of misappropriation with conspiracy and some of them are facing the charge of corruption also. They opposed the prayer for bail. Learned counsel appearing for the applicants/accused pointed out that every applicant has been in custody for more than 40 days during the investigation. Dr. Raman Sikarwar made submission in open Court that investigation is entirely completed and today he is going to submit the charge-sheet after completing necessary legal formalities.
13. In Gudikanti Narasimhulu’s case (supra) the Supreme Court has dealt with the question of ‘jail’ or ‘bail’ by elaborate discussion. Bail is a matter which is to be judged by the Judge by using proper discretion. The discretion, in the words of Benjamin Cardozo, is to be used by the Judge as not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiments, to vague and unregulated benevolence. He is to exercise a discretion informed by traditions, methodized by analogy disciplined by system, and subordinated to “the primordial necessity of order in the social life”. The discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful but legal and regular. An appeal to a Judge’s discretion is an appeal to his judicial conscience. The discretion must be exercised not in opposition to, but in accordance with, established principles of law.
14. The applicants are appealing to the legal discretion of this Court in their favour for bail in view of provisions of Sections 437, 439 of the Code. In Gudikanti Narasimhulu’s case (supra) Supreme Court has pointed out the tests to be applied for considering the prayer for bail. That can be enumerated as mentioned hereunder :-
(1) the nature of the accusation,
(2) the nature of the evidence in support of the accusation.
(3) the severity of the punishment which conviction will entail.
(4) whether the sureties are independent, or indemnified by the accused person,
(5) the possibility of accused absconding
(6) the possibility of accused tampering with the evidence,
(7) possibility of the presence of the accused at the time of trial and
(8) the larger interests of the society.
The relevant factors which are also to be considered are what is the. nature of the charge and whether the course of justice would be thwarted by the accused who seeks benignant jurisdiction of the Court for his bail.
15. In the matter of Bhagirathsinh Judeja (supra) Supreme Court has held that where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with the evidence. In that case the Supreme Court observed “if there is no prima facie case, there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of accused would be readily available for trial or that he is likely to abuse the discretion by tampering with evidence.”
16. In Mohansingh’s case (supra) Supreme Court held that though the result of the investigation indicated a substantial prima facie case indicating corruption against the accused, even then the bail could not be refused.
17. Proviso to Section 437 of the Code provides that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of 16 years or is a woman or is sick or infirm.
18. At the time of considering the prayer for bail made by the accused who is charged for committing non-bailable offence, the Court has to give sufficient opportunity to investigating agency to complete the investigation. Proper consideration has to be also given to the larger interest of the society. It is to be seen that the investigation should not be hampered and judicial process should not be subverted. Sufficient opportunity in this case has been given to the investigating agency and now the investigation is entirely completed. The applicants are not hardened criminals and it is not the say of the prosecution also to that effect. Being Government, semi-Government servants the applicants are not likely to abscond for ever though the investigating officer found much difficult to arrest them for various reasons which are explained by the side of the accused in their favour and contradicted by the investigating agency from its view point. Some of them were attempting to get the relief of protecting their liberty as they found proper and advised by their advisors including the legal counsel. It is but natural that a person who is likely to be arrested may try to find out permissible legal remedy to protect his liberty and avoid arrest. On that count they need not be condemned for ever but for the purpose of securing their presence for the trial and for putting some fetters on them for avoiding possibility of their attempts to tamper with the evidence, some conditions should be imposed. Those conditions would secure the interest of the prosecution as well as provide assurance for their presence in the trial and would protect the interest of public at large. The applicants have been in custody for sufficient long time. Pretrial detention has a certain limit. For how long a person who is likely to be put to trial should be detained in the custody? If he is entitled to be released on bail, he needs to be released on bail, subject to the protection to the investigating agency, to the prosecution and to the larger interest of the society.
19. Applicant-accused Narendra Kumar Surana has to undergo operation of gallbladder stone. Applicant Ashok Kumar Baijal has undergone angio plasty and may be required bypass surgery also. Applicant Manmohansingh Bais is also indicating symptoms which may lead him to undergo some medical surgery in respect of cardiac problem. Applicant Prabhakar Kale has a wife who is handicapped with amputated leg. Applicant Amritlal Patel was also in the hospital for some cardiac problem and the medicines which were prescribed to him prima facie indicate that. That has to be given proper consideration while dealing with their prayer for bail.
20. As the investigation is complete and charge-sheet is to be submitted today, there is no possibility of accused tampering with the course of investigation and putting impediments in it. The possibility of any accused tampering with the evidence can be looked into by imposing some conditions on them. Same is the case for securing their presence for trial.
21. Thus, keeping in view the facts of this case and the strength of material which has been collected by the investigating agency against these applicants, absence of criminal antecedents, their Government service, the applicants are directed to be released on bail. The accused-applicants who are contractors are in fact claiming amount from Government or semi-Government bodies. Some of them have also filed litigation in that context and some of them are in the process. Keeping in view this aspect of the matter so far as their case for bail is concerned, they also deserve to be released on bail.
22. Thus, all the applications are allowed. Applicants (1) Narendra Surana s/o Motilalji Surana (2) Chandrashekhar s/o Mahadeo Dagaonkar (3) Prabhakar s/o Gopalrao Kale (4) Rajendra Kumar s/o Balkishan Goel (5) Manmohansingh Bais s/o Shyam Singh Bais (6) Ashok Kumar s/o Pritamlal Baijal (7) Ramesh Chandra s/o Shri Ratanlal Sankhla (8) Jagdish s/o Shri Rampratap Sharma (9) Amritlal s/o Shri Virjibhai Patel are directed to be released on bail on furnishing security to the extent of Rs. 50,000/- (fifty thousand) each with one surety or two sureties, as the case may be and PR bond to the extent of Rs. 50,000/- before Chief Judicial Magistrate, Indore in respect of Crime No. 205/92. In the interests of justice for protecting larger interest of the society following conditions are imposed :-
(1) they shall not leave India without prior permission of this Court which they should obtain in writing;
(2) the applicants who have got passport should surrender the passport before Special Court, Indore within a week or they should give declaration in writing that they do not have any passport;
(3) the applicants shall not leave this State without prior permission from the Special Court. If anybody wants to leave the State, he should mention the place where he is going;
(4) if any applicant wants to leave Indore, he should inform the Special Judge, Indore and should mention the place where he is going;
(5) the applicants shall not threaten, contact or induce any of the prosecution witnesses directly or indirectly;
(6) no applicant shall put impediment in the process of prosecution when the prosecution is going to trial, directly or indirectly which is not legal.
Certified copy of this order be given to the parties on payment of usual charges.