Pradeep N. Sharma vs State of Gujarat

H.B. Antani, J.—This is an application preferred u/s 439 of the Code of Criminal Procedure by the applicant who has been arrested in connection with M. Case No. 1 of 2008 registered with CID Crime, Rajkot Zone, Gujarat for offences punishable under Sections 200, 203, 217, 465, 466, 467, 468, 471, 472, 474, 457, 484, 406, 409 and 120B of the Indian Penal Code, 1860.

Facts leading to the arrest of the applicant in a nut shell as stated by the applicant in the present application is, one Henry James Chacko filed a complaint before the learned Chief Judicial Magistrate, Bhuj on 01.08.2007 upon which the learned Chief Judicial Magistrate, Bhuj passed an order on 05.11.2009 u/s 156(3) directing the CID Crime Rajkot zone to investigate the matter. It is alleged in the complaint that the complainant received a representation from one Narendra Mansukhlal Mehta on 19.01.2006 and 07.05.2007 regarding irregularities committed by the Bhuj Bazar Navnirman Charitable Trust and that the said Trust has started construction without obtaining NOC from the Army authorities and have also not complied with the conditions prescribed by the Collector. It is further alleged in the complaint that the case was not only of breach of conditions but also of fraud committed against the Government in which land and subsidy worth crores of rupees was involved. It is alleged in the compliant the Government had decided to provide assistance to those traders whose establishments were totally destroyed i.e. who fall in the category of G-5. It is also alleged in the complaint that the Collector was to issue such certificates only after verification of proper details as per orders dated 03.09.2002 and 04.12.2003. It is further alleged that without obtaining NOC from the Army authorities, the Trust has commenced construction. It is further alleged that the Deputy Collector by report dated 10.10.2006 informed the Collector about irregularities and illegalities committed by various persons but the Collector has not taken any action. It is further alleged in the complaint that the Deputy Collector also wrote a letter to the Collector to pass an order of No Entry into the market looking to the irregularities in the membership of the Trust but the Collector took no steps. The applicant ultimately came to be arrested by the CID Crime Rajkot.

Mr. P.M. Thakkar and Mr. Raju, learned Counsel for the applicant submitted that the incident in the complaint/FIR pertains to rehabilitation of traders of the grain and seeds market, Bhuj which was devastated by an earthquake in 2001. Learned Counsel submitted that the proposal to provide land bearing survey No. 363 of Bhuj to these traders was not made by the applicant, but by his predecessor. The state government accepted this proposal which appears to have been based on representations made by the traders that they would create a trust known as The Bhukamgrast Bhuj Bazar Navnirman Charitable Trust [hereinafter referred to as the Trust] which would purchase the land from the Government and allot to its members. The State Government accepted the proposals as stated above and issued a resolution dated 03.09.2002 whereby the Government decided to allot the land at market price of Rs. 800/- or the market price fixed by the State valuation Committee, whichever is higher. It was also decided that the land was to be allotted to the Trust. A list of 404 members submitted by the Trust was accepted by the Government. It was also suggested that additional 150 to 200 members could be added to this list. The resolution contained 9 conditions including condition that the Trust should allot the shops/offices only to those persons who have a certificate issued by the Collector certifying that the persons to whom the certificate is issued is affected by the earthquake etc. Learned Counsel submitted that the present applicant has never issued such certificate. He further submitted that the State Government fixed the market price of the said land at Rs. 890/- per sq. mtr by resolution dated 18.08.2003 and also ordered that the possession of the land in question should be handed over to the Trust by the Collector on receipt of payment of 20% of the total value. He submitted that thus the decision to allot the land as well as the decision to hand over possession of the land on payment of 20% market price as well as the market price of the land was fixed by the State Government and the applicant had no hand whatsoever in the same. He further submitted that the applicant took over charge on 28.05.2003 and at that time a lot of rehabilitation work was required to be executed in the area which was devastated by the earthquake. On 04.12.2003, the applicant, as Collector, passed an order allotting the land to the Trust as per the aforesaid Government resolutions which contained 23 conditions including the 9 conditions stipulated in resolution dated 03.09.2002. The possession of the land was handed over on receipt of 20% amount as stipulated by the State Government. He further submitted that by letter dated 04.12.2003, the applicant approved the list submitted by the Trust. He further submitted that the said list also contained 404 names which were approved by the Government in its resolution dated 03.09.2002. He further submitted that applications along with a certificate issued by the Trust, were submitted through the Trust for the purpose of scrutiny and issuance of certificates by the Collector and the scrutiny of these documents were completed on 10.10.2006, and at that time the applicant was no longer working as Collector because he was transferred there before. He further submitted that after the land was allotted to the Trust, the construction and allotment of shops to its members subject to the conditions of the order dated 04.12.2003 was that of the Trust and not of the applicant. He further submitted that in the order dated 04.12.2003 passed by the applicant, an important condition was incorporated to the effect that the Government could take back the land with the superstructure without making any payment in case of breach of any of the conditions. He therefore submitted that the applicant is not involved in any land scam and no monetary loss has been caused to the Government. He further submitted that the rights of the Government are fully protected especially as the Government is entitled to take possession of the land in case of breach of any of the conditions and therefore the interest of the State Government is fully safeguarded. He submitted that despite these positions, it was highlighted in the media that there is a big land scam and crores of rupees of the government have been swindled. Learned advocate further submitted that an application was initially filed before the learned Magistrate and the learned magistrate passed an order directing CID Crime for investigation u/s 156(3) against which the CID Crime moved the Sessions Court.

Learned advocate for the applicant submitted that the applicant was appointed as Collector, Bhuj on 28.05.2003 and the decision to allot the land in question at market rate was taken by the Government on 03.09.2002, i.e. prior to the appointment of the applicant. He further submitted that the decision to whom the land in question was to be allotted was taken by the Government and the applicant had no hand in the same. He further submitted that the resolution dated 03.09.2002 passed by the Government contained 404 beneficiaries/members of the Trust and the Government itself wanted to enlarge this list to 550/600 beneficiaries and the applicant had no hand in the said decision which was taken by the Government. He further submitted that though the Government imposed only 9 conditions, the applicant, in order to safeguard the interest of the Government, imposed 14 additional conditions, totalling to 23 conditions. He further submitted that the market price of land was fixed at Rs. 890/- by the Government itself by resolution dated 18.08.2003 and the applicant had no role in the said fixation of market price and since the land is sold at the market rate, no loss is caused to the Government at the rate fixed by it. He further submitted that the Government, by resolution dated 18.08.2003 has resolved to handover possession of the land to the Trust on payment of 20% price of the land and the land was handed over according to the said resolution. He further submitted that the applicant did not commit breach of any conditions or directions of the Government in allotting the land to the Trust. He further submitted that since there was delay in paying 2nd and 3rd instalment, notice was issued to the Trust and after the representations of the Trust, the Government extended the time for payment of the 2nd instalment by one year and so far as the 3rd instalment is concerned which was due in August 2005, the State Government granted time to the Trust to make payment till 31.07.2006, i.e. after the applicant was transferred. He further submitted that even time to pay the 4th instalment was also extended despite the Deputy Collector''s report dated 10.10.2006. He therefore submitted that even though there was breach of conditions by the Trust, the Government did not take back the possession of the land but instead permitted the Trust to make late payment. He further submitted that in the private complaint, the only allegation against the present applicant without naming him is that of not taking any action despite Deputy Collector''s report dated 10.10.2006 and the said allegation cannot apply to the applicant because he was transferred before the said date. He further submitted that there are no allegations of financial irregularity, corruption or forgery against the applicant. He further submitted that assuming without admitting that any forgery is committed by any beneficiary to which the applicant is not responsible, then also the certificates which were to be produced by the members do not constitute "valuable security" as defined in Section 30 of the IPC and consequently, since these documents are not of the category referred to in Section 467, offence u/s 467 is not even prima facie made out. Learned advocate further submitted that the applicant has not issued any certificates to any beneficiary certifying to be earthquake affected. He further submitted that no offence of criminal breach of trust and lurking house trespass etc. are disclosed in the FIR. He further submitted that all other offences are even otherwise bailable and are triable by Magistrate. He further submitted that the question whether any person is wrongly allotted the shop/office is pending adjudication before the Special Secretary and if these persons succeed before the said forum, then there would be no basis for the prosecution case. However, despite the same, in hot haste, the applicant has been arrested. He further submitted that the applicant has put in strenuous efforts to rehabilitate earthquake victims in a large scale and at his instance several projects were completed. He further submitted that the applicant has been wrongly arrested and in this regard the applicant has filed a compliant before the learned Magistrate which has been taken cognizance of by the learned Magistrate. Learned advocate has also submitted about the conduct of the CID Crime and bar of prosecution u/s 161 of the Bombay Police Act. He submitted that the alleged incident is prior to 2005 for which complaint is filed in the year 2007 and arrest is made in the year 2010. Learned advocate has also submitted that the learned Magistrate has taken cognizance of a compliant which is filed by a private body and not by State.

Learned advocate has also placed reliance on the FIR, resolutions passed by the Government which are annexed with the compilation as well as the appeal pending before the Special Secretary [Revenue] by the aggrieved parties. Learned advocate has also placed reliance on the order passed by the learned Sessions Judge in Criminal Misc. Applications No. 8 of 2010 and 9 of 2010 and submitted that considering the role attributed to the applicant and the provisions of Sections 200, 203, 217, 465, 466, 467, 468, 471, 472, 474, 457, 484, 406, 409 and 120B of the Indian Penal Code, 1860, the applicant deserves to be enlarged on bail. He submitted that even primafacie case is not made out against the applicant. He further submitted that the learned Sessions Judge has not assigned any reasons while refusing bail and only cursorily dealt with in paragraph 22 of the order. Learned advocate submitted that considering all these aspects, the applicant deserves to be enlarge on regular bail.

Learned advocate has also placed reliance on the following judgments.

State (Delhi Administration) Vs. Sanjay Gandhi,

Thakore Laxmanji @ Angi Rajuji Vs. State of Gujarat,

Mang Karai Deb Barma and Others Vs. The State,

1977 (1) GLR 107 Kottam Raju Viram Rao v. State

In the case of State (Delhi Administration) Vs. Sanjay Gandhi, , the Apex Court considered the provisions of Section 439(2) Cr.P.C., as well as powers of the High Court u/s 439 for cancellation of anticipatory bail.

In the case of Thakore Laxmanji @ Angi Rajuji Vs. State of Gujarat, this Court while considering Section 439 of the Cr.P.C, while dealing with some mistakes committed by the Sessions Court with regard to medical certificate, observed that granting or refusing bail directly affects very core of the liberty of the citizen and the overall social interest and care should be taken at all levels.

In the case of Mang Karai Deb Barma and Others Vs. The State, The Tripura High Court while considering the principles governing grant of bail held that the policy of law is to allow bail rather than to refuse and mere allegation of tampering with prosecution witnesses is not enough. This judgment is of another High Court, and therefore has only persuasive effect and not a binding effect.

In the case of Kottam Raju Viram Rao v. State 1977 (1) GLR 107, this Court while considering provisions of Section 161, 193(1) Cr.P.C. as regards the provision of supplying copies to the accused held that the copies are to be supplied only after the report is forwarded u/s 173(1). The learned advocate placed reliance on the judgment in support of the submissions that all relevant papers, copies of statements of witnesses are required to be supplied by the State.

On behalf of respondent State, Mr. Tushar Mehta, learned Additional Advocate General submitted that investigation in the matter is at a crucial stage. The investigation conducted so far has revealed a serious and conscious involvement of the applicant in conspiracy with the other accused persons. It is found during the course of investigation that the applicant was using two private mobile phones, over and above his official mobile phone. It is revealed that both these mobile phones and two sim cards were given to the applicant by two industrial houses based at Gandhidham who are paying the mobile charges of the aforesaid two mobiles being used by the applicant, even after his transfer from Bhuj. The Investigating Officer has recorded the statements of the two persons who had given the aforesaid two mobile phones. One of the industrial house has paid a sum of Rs. 2,24,036/- by way of mobile charges. The scrutiny of mobile data and the cell phone used by the applicant is going on more particularly since the applicant stays alone in India and his family is abroad. Two subordinate officers who were working under the applicant have given their statements before the Chief Judicial Magistrate, Gandhidham u/s 164 of Cr.P.C., clearly showing involvement of the applicant in the offence under investigation. He further submitted that the statements recorded so far indicates willful and criminal involvement of the applicant. Learned Additional Advocate General submitted that the applicant is a high level IAS Officer and the call data reveals that he was in touch with many influential people in Bhuj even after his transfer in June 2006. He further submitted that there is constant telephonic contacts between the applicant and Arvind Thakkar - one of the main co-accused, on phone. He therefore submitted that the applicant has a serious potential of creating hindrance in smooth investigation and can influence the witnesses. He further submitted that large number of persons are yet to be interrogated to complete the investigation and after getting further details about the cell phone Companies, further investigation is required to be made to ascertain various aspects including transfer of money from India to USA where his wife and children are staying.

Considering the aforesaid aspects, learned Additional Advocate General placed reliance on the documents which are produced along with the compilation and submitted that Bhuj was devastated in the earthquake which hit Gujarat. He submitted that pursuant to an application made by Bhuj Bazar Navnirman Charitable Trust for grant land for the purpose of constructing wholesale market, the Government allotted land by order dated 03.09.2002 which was subject to nine conditions. Learned Additional Advocate General submitted that though there is a breach of all the conditions, the inquiries so far reveal that there has been a willful and criminal breach of the following conditions:

[I]. As per condition No. 5,

[a]. only those traders whose shops/business premises were completely destroyed, meaning thereby, who hold a certificate falling in G-5 category were entitled to get allotment.

[b]. Such applicants were required to obtain G-5 Certificate from the Collector, and,

[c]. Collector was under an obligation to grant such G-5 certificate himself after personal verification.

[II]. As per condition No. 9, the Collector shall permit construction on the land only if the competent authority of the Indian Army grants NOC.

Thus, learned Additional Advocate General submitted that as per one of the conditions, only those persons whose shops/business premises is completely destroyed meaning thereby that only those who have a certificate of their property falling in G-5 category were entitled for allotment. As per the said condition, the beneficiary was required to obtain such a certificate from the Collector and the Collector was under an obligation to issue such certificate himself after personal verification. He therefore submitted that as per this clause, it was incumbent for the District Collector to allot land only to such person to whom he has issued G-5 Certificate after personal verification that the property of the allottee has been completely damaged in the earthquake. Learned Additional Advocate General submitted that inspite of the aforesaid clear conditions, it is the applicant''s own stand that he has not issued any certificate. Yet he allotted land to such persons who do not hold such certificates.

Learned Additional Advocate General further submitted that as per another condition, construction on the land was to be permitted by the Collector only if the competent authority of the Indian Army grants No Objection Certificate. This condition was imposed in view of the fact that in the nearby vicinity, there is an Army Depot for the purpose of housing army ammunitions and though the Government allotted the land since there was a possibility of shifting the aforesaid ammunition depot, it was mandatory that the Collector would permit construction only after getting NOC from the Indian Army. During the investigation, though letter dated 27.11.2003 written by Lieutenant Colonel, Administrative Command, Indian Army to the Collector, Bhuj specifically intimating that the Army will not be giving NOC within 700 Mtrs of Bhujiya Fort was found on the record, the applicant completely ignored the said letter. Not only that the applicant did not inform the State Government about refusal of the Army to give NOC, the applicant fired a letter to the Army authorities demanding any notification which prohibits such a construction. Learned Additional Advocate General submitted that investigation from the records of the Army authorities is also under progress. Learned Additional Advocate General further submitted that in SCA No. 14703/06 with regard to the question regarding the aforesaid NOC from Indian Army an affidavit was filed by a Resident Deputy Collector Bhuj-Kutch and the applicant is trying to take cover of the said affidavit contending that the affidavit was filed by the State Government. He submitted that the said affidavit was filed by Resident Deputy Collector Bhuj-Kutch, who was an officer working under the applicant at the relevant time and it is not the stand of the State Government as is sought to be contended.

Learned Additional Advocate General further submitted that in view of the fact that the land was being allotted to earthquake affected people, the Government allotted the land at a price lower than the market price. However, it is found during the investigation that the applicant has, in connivance with the Trust who was allegedly espousing the cause of earth quake affected persons, has alloted land/shops to either persons who are not genuine traders and also to persons who are not falling within G-5 category and otherwise not entitled to get the premises.

Learned Additional Advocate General submitted that the Trust approached the State Government seeking further relaxation in condition so far as payment was concerned, and the State, took a sympathetic view and permitted payment by 5 instalments of 20% each.

Learned Additional Advocate General submitted that earlier Arvind Virji Thakkar in his capacity as President of Bhuj Ganj Bazar Association had given a list of 404 traders, who according to him, were affected by the earthquake and were entitled to be allotted space in the wholesale market. The State, while forwarding the list to the Collector laid a specific condition as stated above that allotment was to be made only after the Collector himself issues G-5 Certificate after personal verification. Learned Additional Advocate General further submitted that the said Arvind Thakkar again submitted a list containing 75 more names. Learned Additional Advocate General submitted that the said application was never inwarded by Arvind Thakkar in the office of the Collector, but it was handed over personally to the applicant. However, when the said list was subsequently given to the staff of the Collectorate for processing, the office wrote a letter to the Mamlatdar, Bhuj for physically and factually ascertaining whether the said persons who are subsequently included in the list were entitled to get allotment but it has been revealed in the investigation so far that at the instance of the applicant, the letter was recalled. Learned Additional Advocate General submitted that investigations so far reveals that order allotting plots to 479 persons have been passed without any factual verification as to whether they are genuine earthquake affected persons falling within G-4 or G-5 or not, and whether they are genuine traders or not and whether they are fulfilling all conditions or not.

Learned Additional Advocate General further submitted that several persons filed complaints in writing before the Collector categorically pointing out that there are large scale illegalities in the allotment and undeserving persons are getting allotment. He further submitted that though large number of applications were received by him prior to the date of passing the allotment order, the applicant passed the allotment order. Learned Additional Advocate General further submitted that even the survey register containing the names and categories of the persons depending upon the extent of damage was kept in one chamber near the chamber of the applicant and not only did Arvind Thakkar and other office bearers of the Association had free access to the register even unauthorised beneficiaries were also given access illegally to the said register so as to ensure that they can accordingly prepare certificates showing the extent of damage to their property in the earthquake and it has been found during the investigation that certificates placed on record based on this this register are bogus. Learned Additional Advocate General submitted that this fact is also revealed in the report of Deputy Collector [Earthquake] Bhuj which was conducted pursuant to the order passed by Dhananjay Dwivedi, who was appointed as the Collector after the applicant was transferred.

Learned Additional Advocate General further submitted that one Chacko filed a complaint to the District Superintendent of Police, Kutch who directed PSI, Economic Cell, Bhuj to examine whether any offence is made out. The said PSI submitted a report on 25.07.2007 pointing out that prima facie criminal offence is made out. The District Superintendent of Police, Kutch therefore requested the then Collector, Bhuj to file a complaint. Since no complaint was filed, the said Chacko filed a private complaint in the court of learned Chief Judicial Magistrate, Kutch who ordered an investigation u/s 156(3) of Cr.P.C. The Inquiry Officer, based on the material collected so far, formed an opinion that there are sufficient grounds for arrest of the applicant and his custodial interrogation, and therefore sought sanction as contemplated u/s 197 of the Code. After getting the sanction from the Chief Secretary, State of Gujarat, the applicant came to be arrested.

Learned Additional Advocate General further submitted that in view of large scale dis-satisfaction amongst the genuine traders in Bhuj and some judicial orders, proceedings appear to have been initiated by the State Government. However, the said proceeding were withdrawn on 23.12.2009 and investigation as to how and why the said proceedings were withdrawn are yet to be made. He further submitted that when the matter became grave in public eye, the State Government entrusted an inquiry to a senior level IAS Officer, viz. Commissioner, Mines and Minerals. The Commissioner, Mines and Minerals submitted a detailed report pointing out that serious illegalities and irregularities were committed by the applicant.

Learned Additional Advocate General submitted that considering the aforesaid aspect and the primafacie involvement of the applicant in serious offences punishable under Sections 200, 203, 217, 465, 466, 467, 468, 471, 472, 474, 457, 484, 406, 409 and 120B of the Indian Penal Code, 1860 wherein investigation is at a crucial stage and since the application for regular bail is filed before the charge sheet is filed, no discretionary relief be granted to the applicant and the application deserves to be rejected out of hand.

Mr. Bharat B. Nayak, learned advocate appearing for the original complainant submitted that the applicant is involved in serious offences punishable under Sections 200, 203, 217, 465, 466, 467, 468, 471, 472, 474, 457, 484, 406, 409 and 120B of the Indian Penal Code, 1860. Considering the role attributed to the applicant and the manner in which the offence is committed by the applicant in connivance with other co-accused, discretionary relief u/s 439 of the Cr.P.C. may not be exercised in his favour. Learned advocate further submitted that investigation in the matter is not yet over, and the applicant wields considerable influence and is likely to hamper investigation if he is released on bail at a stage when even inquiry is not over and charge sheet is not filed. He therefore submitted that the application for bail be dismissed.

Mr. Nayak learned advocate also relied on the following judgments:

[1]. (2006) 9 SCC 425 Anil Kumar Tulsiyani v. State of UP.

[2]. State Vs. Amarmani Tripathi,

[3]. State Rep. by the C.B.I. Vs. Anil Sharma,

[4]. Superintendent of Police, C.B.I. and Others Vs. Tapan Kr. Singh,

[5]. Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan and Another,

Relying on the the judgment of Nil Kumar Tulsiyani v. State of UP reported in (2006) 9 SCC 425, Mr. Nayak submitted that the Apex Court has held that while considering bail in non-bailable offences, the gravity and nature of offence, reasonable apprehension of the witnesses being tampered with or won over, coerced, threatened or intimated by accused using his influence and position are required to be considered.

Relying on the judgment in the case of State Vs. Amarmani Tripathi, Mr. Nayak submitted that the Supreme Court has held that it is necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

[a]. The nature and accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

[b]. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

[c]. Prima facie satisfaction of the Court in support of the charge.

Mr. Nayak submitted that all the aforesaid factors go against the applicant, and therefore, the applicant cannot be released on regular bail.

Relying on the judgment in the case of State Rep. by the C.B.I. Vs. Anil Sharma, Mr. Nayak submitted that while considering grant of anticipatory bail, the Apex Court has held that mere apprehension by the investigating agency that the applicant will influence witnesses was reasonable ground to refuse bail. He submitted that considering the high office the applicant held and the influence he holds, there are every possibilities that he would influence witnesses and therefore, he cannot be released on bail.

Relying on the judgment in the case Superintendent of Police, C.B.I. and Others Vs. Tapan Kr. Singh, Mr. Nayak submitted that it is not necessary that FIR must disclose all facts and details relating to the offence and what is required is that the information given must disclose the commission of a cognizable offence and must provide a basis for the police officer to suspect the commission of such an offence. He further submitted that mentioning of all the ingredients of the offence in the FIR is not essential. He further submitted that the Apex Court has held that for taking up investigation in a cognizable offence, it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence and not that he must be convinced or satisfied that a cognizable offence has been committed and if the police officer is so satisfied, he has to proceed to investigate the case. Relying on this, Mr. Nayak submitted that the complaint filed by the complainant gives sufficient information disclosing the commission of a cognizable offence and the investigating officer is well within his rights to investigate the case.

Relying on the judgment in the case of Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan and Another, Mr. Nayak submitted that the Apex Court has held that one of the salutary principles in granting bail is that the court should be satisfied that the accused being enlarged on bail will not be in a position to tamper with the evidence. He submitted that looking to the position and influence of the applicant, the applicant wields considerable influence and there are every possibilities of his tampering with the evidence, and therefore, he should not be enlarged on bail. He therefore submitted that the application deserves to be rejected.

I have heard learned Counsel for the applicant Mr. Thakkar with Mr. Raju, learned Additional Advocate General Mr. Tushar Mehta with Mr. Prakash Jani, Government Pleader for the State and Mr. Nayak, learned advocate for the original complainant at length and in great detail. I have also perused the application and its annexures and all the papers produced before me during the course of hearing. I have also considered the judgments cited before me by the learned advocates.

Coming to the submissions made by learned Counsel for the applicant, it is vehemently contended that the decision to allot the land in question was taken by the Government, and even the names of 404 beneficiaries was approved by the Government. However, it is required to be noted that while forwarding the resolution and list of proposed beneficiaries, the Government had imposed a condition that allotment could be made only to those persons who fall within the G-5 category and a duty was cast on the applicant to make allotment to only those persons to whom he, as the Collector, issues G-5 certificates and that too after personal verification. It is the applicant''s own case that he has not issued any certificate. Yet he allotted the land/shops, and on what basis the allotment was made is under investigation. Moreover, it is the case of the prosecution that during the period prior to the transfer of the applicant, beneficiaries started placing eligibility certificates on record, which turned out to be bogus certificates. How, and by whom and in what manner the certificates are issued is also under investigation. Even the matter as to how the 404 names crept in the list of beneficiaries is a matter yet under investigation because it is contended that the survey register containing the names and categories of the persons depending upon the extent of damage was kept in one chamber near the chamber of the applicant and not only did Arvind Thakkar and other office bearers of the Association had free access to the register even unauthorised beneficiaries were also given access illegally to the said register so as to ensure that they can accordingly prepare certificates showing the extent of damage to their property in the earthquake and it has also been found during the investigation that certificates placed on record based on this register are bogus. It is further contended that on behalf of the applicant that as against 9 conditions imposed by the Government for grant of land, the applicant imposed 14 additional conditions. The question under investigation is how many conditions are breached, and not how many conditions are added. Inspite of adding so many conditions, if allotments are made in breach of even the core conditions, there is no point in canvassing that the applicant added so many more conditions than the conditions prescribed by the Government. Therefore, this submission also has no merit. As regards the contention that the land is sold at market value and no loss is caused to the Government, it cannot be overlooked that land/shops are to be allotted to those persons whose property has been completely damaged in the earthquake. Hence the question whether the land/shops is sold at market price or not is not the important question, but the important question is whether it is allotted to those persons whose property has been completely damaged in the earthquake or not. This contention therefore also has no merit. As regards the mode and manner in which the Government has decided to collect the payment from the allottees, it does not lie in the mouth of the applicant to say as to how and in what mode and manner the Government should decide. Moreover, reading the papers placed before me, it does not appear to me that the allegation against the applicant is that he has collected or not collected payment as decided by the Government. Hence this submission also has no merit. For the same reasons, the submission that the Government did not take back the possession of the land from the Trust on account of delayed payments also does not have any merit. Learned advocates for the applicant submitted that the applicant has not issued any certificate certifying that the beneficiary is earthquake affected. This submission itself goes contrary to the core condition imposed by the Government that as Collector, the applicant was duty bound to allot plots/shops to only those persons to whom he issues G-5 certificate and that too after personally verifying the damages to the property. One of the allegations against the applicant is that the applicant, in connivance with the Trust who was allegedly espousing the cause of earth quake affected persons, has alloted land/shops to either persons who are not genuine traders and also to persons who are not falling within G-5 category and otherwise not entitled to get the premises. Hence the submission by the learned advocates for the applicant that it is the Trust who acted in breach of the conditions also has no merit. The breach, as it appears from the record, is not subsequent to taking possession of the land by the Trust, but even before the allotment since it is alleged that land/shops are allotted to persons who are not genuine traders and also to persons who are not falling within G-5 category and otherwise not entitled to get the premises. Hence this submission as well as the submission that there is no criminal breach of trust also have no merit. Even with regard to NOC to be obtained from Army authorities prior to granting permission for construction, there appears to be a breach and the matter is under investigation. As regards the contention that the applicant was illegally arrested, it has been specifically contended that the arrest was made after obtaining necessary sanction from the Chief Secretary. This contention, therefore, also has no merit. Hence this Court do not express any opinion about the contention advanced on behalf of the applicant that the learned Magistrate has taken cognizance on the application filed by the applicant regarding the illegal arrest of the applicant. As regards the contention regarding the conduct of the CID Crime, this Court is not inclined to express any views in the matter at the stage of hearing bail application. As regards the bar of prosecution and delay in filing the complaint etc., these questions of law and facts are also not required to be considered while hearing bail application. As regards the contention that learned magistrate has taken cognizance of complaint which was filed by a private body and not by State, the law is very clear on this subject.

This Court cannot overlook the fact that this is an application for bail, and this Court is not hearing a criminal trial or a criminal appeal. At this stage, this Court is not required to either hear the matter as if the Court is trying the accused or to undertake a detailed examination of the evidence and elaborate documentation of the merits of the case nor is the Court required record a very detailed reasoned order either for or against the prosecution which may prejudicially affect the interests of the parties because trial is pending before the concerned Court. Thus, this Court at this stage is required to record reasons only to indicate the considerations that have weighed with the Court in passing the order and the Court is required to do so in a manner that may not prejudice the case of the parties.

In the judgment reported in Gajanand Agarwal Vs. State of Orissa and Others, the Apex Court held as under:

Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a Court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The Court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence.

It is necessary for the Courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:

(1). The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

(2). Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(3). Prima facie satisfaction of the Court in support of the charge.

In Jayendra Saraswathi Swamigal Vs. State of Tamil Nadu, Jayendra Saraswathi Swamigal v. State of Tamil Nadu the Apex Court held that the considerations of the Court in granting bail in non-bailable offences have been explained by this Court in The State Vs. Captain Jagjit Singh, and Gurcharan Singh v. State (Delhi Admn.) AIR 1978 SC 179 and basically they are:

* the nature and seriousness of the offence;

* the character of the evidence;

* circumstances which are peculiar to the accused;

* a reasonable possibility of the presence of the accused not being secured at the trial;

* reasonable apprehension of witnesses being tampered with;

* the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.

In AIR 2007 SC 256 Satish Jaggi v. State of Chhattisgarh, the Apex Court held that at the stage of considering bail application, the High Court should consider nature and gravity of offence and its impact on society and the question of credibility and reliability of witnesses can only be tested during trial. The Apex Court further held that at this stage, the Court can only go into question of prima facie case and cannot scrutinise evidence at stage of granting bail. It is further held that in granting bail, the primary consideration is the gravity and the nature of the offence and its impact on the democratic fabric of the society.

The nature of accusation against the applicant is very serious. I have also considered the severity of punishment in case of conviction and the nature of supporting evidence. The applicant was holding a very high office and hence there is a reasonable apprehension of influencing the witnesses and creating hindrance in smooth investigation. Having gone through the case papers produced before this Court, this Court is also satisfied that a prima facie offence is made out. Investigation in the matter is not yet over and charge sheet is not filed. The investigation is at a crucial stage and if the applicant is released on bail, he is likely to hamper the investigation and influence the witnesses considering the fact that the applicant wields enormous influence with the high and mighty.

For the foregoing reasons, there is no merit in the application, and the application is dismissed. Rule is discharged.