@JUDGMENTTAG-ORDER
Vijay Kumar Vyas, J.—Since all the bail petitions arise out of the same FIR, they are decided by this common order.
2. These bail petitions have been filed u/s 439 Cr.P.C. The petitioners have been arrested in connection with FIR No.422/2014 dated 3.12.2014 for the offences u/s 13(2) read with section 13(1) (C)(D) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as "Act of 1988") and 120B, 420, 467, 468 and 471 IPC.
3. On 9.5.2013, complainant Ram Saran submitted a written complaint to the Director General, Anti-Corruption Bureau, Rajasthan, Jaipur alleging, inter alia, that Jaipur Development Authority (JDA) issued a single patta in favour of M/s Ganpati Construction in illegal manner and the land ad-measuring 3.43 Hector, situated in Todi Ramjanipura has been allotted to the company in a conspiracy. The complainant levelled charges of irregularity, corruption and misuse of post and power against the accused Bheem Sain Garg, Shailendra Garg, Vijay Mehta and the officers of J.D.A. and Urban Development Housing Department (hereinafter to be referred as "UDH department"). A preliminary enquiry No.15/2014 was registered and conducted. On the basis of report of preliminary enquiry, FIR No. 42/2014 was registered. During investigation, Shailendra Garg, partner of M/s Ganpati Construction and Nishkam Diwakar - the then Deputy Secretary - II, UDH department, were arrested and charge sheeted on 01.12.2015 for offences u/s 13(1)(C)(D) and 13(2) of the Act of 1988 and Section 409, 420 and 120B IPC. Investigation was kept pending u/s 173(8), Cr.P.C. against co-accused Vijay Mehta, Anil Agarwal, G.S. Sandhu, Onkar Mal Saini and B .M. Kapoor. After arrest of Vijay Mehta - the then President of Rajendra Nagar Adarsh Grah Nirman Sahkari Samiti, G.S. Sandhu - the then Principal Secretary, UDH department, Onkar Mal Saini - the then Deputy Commissioner, Zone-10, JDA, a supplementary charge sheet dated 8.7.2016 was filed before the concerned court for offences u/s 13(1)(C)(D), 13(2) of the Act of 1988 and section 409, 420, 467, 468, 471 and 120B IPC.
4. It is alleged that the Executive Committee of Rajendra Nagar, Adarsh Grah Nirman Sahkari Samiti took decision to purchase the land for Durga Vihar Scheme of the Society and 175 plots were allotted to the members of the Society. In the year 1997, the land of two Khasra numbers came under acquisition. Plot holders were unaware whether their plots were under acquisition or not. Taking advantage of this situation, Bheem Sain Garg purchased almost all the plots of the Society in the name of M/s Ganpati Construction. Bheem Sain Garg by manipulating proceedings and meeting of the Society, including his son in the Board of Directors in the year 2003.
5. An amended Patta was issued on 4.6.2005 by Housing Society in favour of M/s Ganpati Construction Company. Prior to that, M/s Ganpati Construction Company moved an application before the JDA to issue him a Single Patta of the whole Chunk of land. The request was considered on 7.5.2005 by the 82nd Building Plan Committee and acceded and the matter was moved to the State Government for in principal approval of the decision. The then Principal Secretary, UDH Department did not approve the decision and accordingly request was rejected on 18.10.2005. Bheem Sain Garg died in the year 2009. His son Shailendra Garg again submitted an application dated 16.9.2010 to re-consider the decision. On this application, accused Niskam Diwakar, Deputy Secretary, UDH Department called for a factual report from JDA. In compliance, factual report was sent to the UDH Department by the Secretary of JDA. It was informed through factual report that earlier such request has been turned down in the year 2005. Thereafter, in the comments of Deputy Town Planner, it was suggested to obtain legal opinion prior to deviate from the prevalent policy. It is alleged that instead of obtaining any legal opinion, accused Niskam Diwakar submitted the file before G.S. Sandhu, Principal Secretary, UDH Department who, after having a meeting with the applicant and concerned Deputy Commissioner of the Zone, Onkarmal Saini, recommended the proposal and got approval on 30.3.2011. The approval was in favour of M/s Ganpati Construction Company through partner Shailendra Garg. In compliance, Onkarmal Saini issued the Single Patta in the name of M/s Ganpati Construction Company through Proprietor Shailendra Garg. Meanwhile, Ram Saran Singh had submitted a complaint dated 8.5.2013 to the Director General, Anti-Corruption Department, Jaipur. The complaint was published in newspaper also. Whereupon, to save his skin, accused G.S. Sandhu, Principal Secretary, UDH Department, called back the file on 10.5.2013 and got approval for cancellation of the Single Patta. Prior to the complaint of Ram Saran Singh, wife of late Bheem Sain Garg Smt. Manju had also made a complaint before the JDA that she is also a partner in M/s Ganpati Construction Company and Shailendra Garg is not sole Proprietor of M/s Ganpati Construction Company.
Accused Shailendra Garg
6. Learned counsel for the petitioner Shri Sameer Jain submits that the petitioner is an entrepreneur having many companies. He is behind the bars in this matter since 29.9.2015. Charge sheet against him has already been filed on 1.12.2015. No further investigation is left, qua the petitioner. Co-accused Anil Kumar Agarwal has been bailed out by the trial court. Another co-accused Niskam Diwakar has been enlarged on bail by the order of the Apex Court. The petitioner has wrongly been implicated without any incriminating evidence. The subject matter of dispute i.e. Single Patta of the land is already stand cancelled. However, cancellation is under challenge before the High Court. The petitioner has always co-operated the Investigating Officer. As per charge sheet, 96 witnesses are to be examined on behalf of the prosecution, during trial. The most of them are Government Officers/Employees and there is no chance to tamper with the evidence by the petitioner. The trial will take a pretty long time. Bail is the rule and jail is an exception. Further detention of the petitioner as pre-trial prisoner would not serve any purpose.
Therefore, the petitioner may be released on bail. In support, the learned counsel for petitioner placed reliance on Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40. Dr. Gurdial Singh Sandhu
7. Learned counsel Shri V.R. Bajwa appearing on behalf of Dr. Gurdial Singh Sandhu submits that the petitioner has served in the Indian Administrative Service for last 35 years holding various important positions in the State Government as well as Government of India. He has retired from service as Secretary to the Government of India on 30.9.2015. The petitioner has been embroiled in a completely false, frivolous and malicious case actuated by feeling of political slug-fest with ulterior objective of maligning the reputation of the petitioner. After exhausting all the remedies available in law, the petitioner himself surrendered before the trial court on 12.5.2016 and prior to that, he was interrogated for nearly 20 hours by the Investigating Agency. Further, he was remanded in police custody for 3 days. Approval of conversion / regularisation of land was given by UDH based on factual report from the JDA after due observance of the administrative procedure. During this period, the petitioner was Principal Secretary in UDH Department. Later in 2012, the petitioner while dealing with an application under Right to Information Act relating to the said allocation, stayed further proceedings of the JDA in the matter. He immediately called the file from JDA and the said Single lease was cancelled on 10.5.2013 by the UDH on recommendations made by the petitioner upon discovery of fresh facts displaying fraud and misrepresentation by Shri Shailendra Garg, partner of Ganpati Construction Company at the time of execution of lease deed at JDA level. The approval for issue of Single lease was given by the petitioner in 2011 with bona fide intention in public interest and as per law based on the information furnished by JDA. Even if the case of the prosecution is accepted, no offence u/s 13(D) of the Act of 1988 is made out. There is no allegation in the entire case about the demand/acceptance of illegal gratification. The State Government has not suffered any undue loss whatsoever. The land belongs to a society which is vested in JDA even today. As the land was resumed u/s 90B of the Land Revenue Act, 1956 (hereinafter referred to as ''the Act of 1956''). and post resumption came to be vested in the State Government u/s 90B of the Act of 1956 on 17.9.2003. Till appropriate orders are passed u/s 54B of the JDA Act, the same would vest in the JDA. In fact, an amount of more than Rs.44,00,000/- paid as conversion charges by M/s Ganpati Construction is lying deposited with the JDA since 2005, on which the State Exchequer continues to earn interest for the last more than 10 years. Thus, there is no undue loss to the State Government and no undue gain to M/s Ganpati Construction. The ingredient of dishonest intention is also lacking. Thus, the offence u/s 13(1)(D) of the PC Act, 1988 is not made out at all against the petitioner. M/s Ganpati Construction is a partnership firm whereas the alleged Single lease was issued in favour of Shailendra Garg, Proprietor, M/s Ganpati Construction, which is non-existent entity. Hence issuance of the alleged lease in favour of Shailendra Garg cannot be regarded as a "valuable thing" or "Pecuniary advantage" in terms of section 13(1)(D)(iii) of the Act of 1988. Charges of forgery and cheating are also unfounded, qua the petitioner. The JDA is a body in charge for conversion of land and subsequent grant of lease, whereas UDH has a limited role of approving the case where the land exceeded 1500 square yards. Thus, UDH was an approving authority in principal and not an appellate authority to function in that manner. In the matter, the role of UDH was limited to record its prima facie satisfaction or dis-satisfaction on the basis of factual report submitted by the JDA. The petitioner while acting in the limited capacity of an approving authority, granted the in principle approval in a routine manner in good faith, relying upon the factual report of the JDA. The instant case is based on documentary evidence and the entire record of the case is admittedly with the Investigating Agency. Charge sheet against the petitioner has been filed on 11.7.2016. In view of this, continued incarceration of the petitioner is totally unwarranted. The petitioner was arrested on surrender on 12.5.2016. The petitioner is a retired officer. There is no question of tampering with the witnesses and documentary evidence. Not seeking legal opinion prior to granting in principle approval, cannot cull out ingredient of the offence. However, legal opinion was taken earlier when the matter was considered in the year 2005. There is no bar on review or re-consideration of the orders passed on administrative side. 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 accused should not be detained by way of punishment. The petitioner is suffering from "Bredycardia" i.e low pulse rate between 40-50. He was admitted twice in SMS Hospital during his period of custody.
Learned counsel for the petitioner relied on Sanjay Chandra''s case (supra) and Bhagirathsingh S/o Mahipat Singh Judeja v. State of Gujarat, (1984) 1 SCC 284.
Onkar Mal Saini
8. Learned counsel Shri Saransh Saini appearing on behalf of accused petitioner Onkar Mal Saini submits that the petitioner is a member of Rajasthan Administrative Service. Due to approval and sanction made by the State Government on 6.4.2011, the petitioner was under an obligation to issue the Patta being Subordinate Officer and in view of the provisions of section 90(2) of the Jaipur Development Authority Act, 1982 (hereinafter referred to be as "the JDA Act") holding the post of Deputy Commissioner, Zone-10, JDA. From the FIR itself, it is not coming out that the petitioner got any wrongful gain. There is no case of demand/acceptance or recovery of any money from any person.
There is no allegation that the petitioner has taken any valuable thing or particular advantage. No ingredient of section 13(1)(D) read with section 13(2) of the Act of 1988 is being met out by the FIR. There is no evidence against the petitioner regarding cheating, conspiracy or forgery of valuable security. When the factual report was asked from the petitioner by the State Government, the petitioner, while acting in the capacity of Deputy Commissioner, Zone-10, JDA, apprised the State Government that earlier vide order dated 18.10.2005, the sanction has already been declined for issuance of Single Patta in the name of M/s Ganpati Construction Company and nothing can be done at the level of JDA. Despite of this, when the State Government gave approval, then the petitioner was bound to issue the Patta. Similarly situated, co-accused Niskam Diwakar has been enlarged on bail by the order of the Apex Court. The case of the petitioner is on better footings. Charge sheet has been filed against the petitioner. Nothing remained to be investigated from the petitioner. Petitioner himself, surrendered before the Investigating Officer on 16.5.2016, whereupon he was arrested in this matter. The petitioner is suffering from ailment of slip disc since 2007.
Accused Vijay Mehta
9. Learned counsel for the accused petitioner Shri Vijay Yadav while adopting the principal arguments of Advocate Shri Sameer Jain, additionally submits that the petitioner is no more President of Rajendra Adarsh Grah Nirman Sahkari Samiti after 18.11.2005. The alleged Single Patta has been issued in the year 2011. The petitioner is not a beneficiary. Co-accused Anil Agarwal who was Cashier/Mantri of the Society at the relevant time, has already been bailed out by the order of the trial court itself. The case of the petitioner is on the same footings. Another co-accused Niskam Diwakar has also been enlarged on bail by the order of the Apex Court. Moreover, the petitioner is about 69 years of age. Ten years ago, he was subjected to bypass surgery. The petitioner is suffering from many diseases and is behind the bars since 21.5.2016. A certificate issued by the Medical Officer, Central Jail, Jaipur issued on 3.8.2016 has been submitted by the petitioner. Charge sheet against the petitioner has already been filed. As per charge sheet, 108 witnesses are to be examined on behalf of the prosecution. Obviously, trial will take a long time. Members of the Society, who were allotted the land, surrendered their right in favour of the Society. The Society has physically possession. The petitioner has not made any forged and fabricated documents for any illegal benefit in his favour. The petitioner never cheated any member of the Society.
Arguments On Behalf of The State
10. Per contra, learned Additional Advocate General Shri Anurag Sharma submits that with the fraudulently intention, the lease deed of plots issued to its members, as member of the Society way back in the year 1992-94 were purchased by M/s Ganpati Construction Company. The Society after allotment of plots and issue of lease deed to the members of the Society, submitted an application for approval of its Durga Vihar residential scheme before JDA. Thus, the land in question was under resumption before the JDA in terms of section 90B of the Act of 1956. Despite of this fact, a resolution was passed by the Society in the Chairmanship of petitioner Vijay Mehta to the effect that in place of individual leases granted to the members of the Society, a Single lease may be granted of the whole land in favour of M/s Ganpati Construction Company. At the relevant time, Vijay Mehta was President of the Society, Anil Kumar Agarwal was Cashier/Member/Mantri of the Society and Bheem Sain Garg, father of Shailendra Garg was member of the Society and all these people did things in conspiracy to do the said misdeeds. When M/s Ganpati Construction Company, a partnership firm moved an application before JDA for grant of Single lease in his name in the year 2005, Building Plan Committee of the JDA approved the same and forwarded it to the State Government for approval in principle. The then Principal Secretary, UDH department opined that giving Single lease of the land which was meant for members of the Society to a builder company will not be in the public interest. Thus, in principle approval was declined by the State Government. After the death of Bheem Sain Garg, his son petitioner Shailendra Garg again moved the authorities to review the decision of not giving in principle approval, communicated to him vide letter dated 7.11.2005 of JDA. The then Deputy Secretary, Niskam Diwakar , UDH Department initiated proceedings. When the relevant file of the year 2005 could not be traced out, a factual report was called for from JDA. On receipt of factual report, wherein it was informed that earlier the same was considered and in principle approval has been declined by the State Government, Niskam Diwakar sought comments of Dy. Town Planner. The Dy. Town Planner suggested that before deviating form the prevalent policy, legal opinion may be sought. Instead of calling legal opinion, the Dy. Secretary UDH department forwarded the file to Dr. G.S. Sandhu, the Principal Secretary, UDH department who did also not bother to take any legal opinion, rather he called for the applicant i.e. Shailendra Garg and the concerned officer of the JDA. After meeting with Shailendra Garg and Onkar Mal Saini, the then Deputy Commissioner, Zone-10, JDA, Shri Sandhu forwarded the file to the Minister with his recommendations. Thereupon, the Minister directed to resubmit, after considering the matter in view of the judgment delivered on that very day by the High Court. After compliance, Shri Sandhu submitted the file again and got approval in principle from the Minister. Consequently, in principle approval for issuance of Single lease in favour of M/s Ganpati Construction Company, a partnership firm was communicated to the JDA. In compliance, while issuing the Single lease, in furtherance of the conspiracy and malafidely, the petitioner Onkar Mal Saini issued the Single lease in favour of the M/s Ganpati Construction Company through Proprietor Shailendra Garg, instead of M/s Ganpati Construction Company.
11. While getting me through the concerned file at the time of arguments, the learned AAG submits that the petitioner Sandhu did not mention any new facts or cogent reasons for review of the administrative decision which was taken earlier in the year 2005. Onkar Mal Saini, Dy. Commissioner, Zone-10, JDA, hands in gloves with Shailendra Garg malafidely issued the Single lease in favour of M/s Ganpati Construction Company through Proprietor Shailendra Garg instead of M/s Ganpati Construction Company. Wife of late Bheem Sain Garg and mother of Shailendra Garg Smt. Manju had submitted a complaint that she is also partner in M/s Ganpati Construction Company but deliberately her complaint was over-looked. So far as cancellation of the Single lease by Shri Sandhu is concerned, it cannot be taken as mitigating factor. On reading news in newspaper regarding the complaint filed by Ram Sharan Singh on 9.5.2013, just to save his skin, the petitioner Sandhu called for the file from JDA and got processed the file on the very day in a utter haste and cancelled the Single lease, in question. The charges against the petitioners are very serious. The petitioners Onkar Mal Saini and G.S. Sandhu, the public servants were holding responsible posts. They did not care for public interest and just to benefit co-accused Shailendra Garg, petitioner Sandhu malafidely got issued in principle approval from the State Government and petitioner Onkar Mal Saini, at his own level, changed the name of the person in whose favour the Single lease was to be executed. Grant of bail to co-accused cannot be a sole ground for extension of the facility to other accused. Looking to the position in Society and the State Government, apprehension of influencing the witnesses of prosecution, from the petitioner is not unfounded. Charge sheets against all the petitioners have been filed. When the charges have not been framed,it will not be appropriate to enlarge the petitioners on bail, considering the merits of the case.
12. I have given thoughtful consideration to the rival submissions and perused the material available on record.
13. There is no dispute that the object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive nor preventive. Seriousness of the allegations or availability of material in support thereof are not only consideration for declining the bail. The delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period when trial is not likely to be concluded within reasonable time.
14. In Sanjay Chandra''s case (supra) it was observe as under :
"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 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."
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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 have resulted in loss to the State exchequer. Though, they contended 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 consideration 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 Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice."
15. In Bhagirathsingh''s case (supra), it has been observed in para 7:-
"7. --------- it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence."
16. In the light of above-settled principles of law dealing with the prayer for bail pending trial and keeping in mind that the 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 existence or otherwise of a prima facie case is necessary, I proceed to consider the present case. The present case in nut & shell is alleged to be of criminal conspiracy hatched for extraneous consideration and against the public interest for benefiting a builder by allotting him a Single lease for a big Chunk of land, which is meant for members of a House Building Cooperative Society. It is alleged that the builder and office bearers of the Society in connivance and by deceptive means forged certain documents. It is also alleged that the authorities of the State Government and its allies also joined in the conspiracy and issue deliberately a Single lease of the land. The acts of the authorities have been alleged to be detrimental to the public interest and for wrongful gain. Administrative orders can be reviewed at any time but there must be some cogent reasons for review or revision of a decision taken after due process and examination. In the instant matter, nothing has been pointed out before me for which, a decision of not giving in principle approval, taken in the year 2005, was required to be revisited in the year 2011. It is not a case where decision of declining in principle approval was not in knowledge of the authority who granted in principle approval in the year 2011. In the year 2005, decision of declining in principle approval was based on complete reports of the concern persons and authorities, including legal opinion. In year 2011, after over-looking suggestions given by Town Planner and without recording any reason for doing so, in principle approval was granted. Builder Company was a partnership firm nevertheless the Single lease was issued to the company through its Proprietor. The role of office bearers of the Society in resolving and filing an affidavit before JDA in favour of Builder Company with regard to issue of a Single lease, is a matter of record. Investigating Agency has submitted such record along with charge sheet. After perusing the record made available to me, I am of the firm view that the instant case is not of no evidence. Subsequent cancellation of the Single lease can be a mitigating factor for consideration during trial. But at this stage, it cannot be made a basis for granting bail. Charge sheet has been filed against all the petitioners but trial is yet to commence. Period of custody and time required to conclude the trial are some among other factors to be considered for grant of bail.
17. Considering all the relevant aspects and submissions made by the petitioners, I am of the view that looking to the fact that the case is not without foundation of evidence and gravity of the matter, I find the cases of petitioners Shailendra Garg, Dr. Gurdial Singh Sandhu and Onkar Mal Saini are not fit for grant of bail.
18. So far as petitioner Vijay Mehta is concerned, he is 69 years old, suffering from certain ailment, he is already subjected to a bypass surgery, a certificate of his ailment issued by the Medical Officer of the Central Jail, Jaipur is there on record and he is behind the bars since 21.5.2016 and his case is somewhat on the same footings that of co-accused Anil Kumar Agarwal who has been granted bail by the learned trial court itself, I am inclined to grant the bail to the petitioner Vijay Mehta.
19. Thus, the bail petitions of petitioners Shailendra Garg, Dr. Gurdial Singh Sandhu and Onkar Mal Saini are rejected and that of petitioner Vijay Mehta is allowed.
20. It is ordered that the accused-petitioner Vijay Mehta S/o Late Shri Himmat Singh Mehta arrested in F.I.R. No.422/2014, registered at Pradhan Arakshi Kendra, Anti Corruption Bureau, Jaipur shall be released on bail; provided he furnishes a personal bond of Rs.1,00,000/- and two surety bonds of Rs.50,000/- each to the satisfaction of the learned trial court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so.
