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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
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