PRADEEP N SHARMA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS is an application preferred under Section 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.

(2.) 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 under Section 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.

(3.) 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 under Section 156(3) against which the CID Crime moved the Sessions Court.