JUDGMENT Tarlok Singh Chauhan, Judge (Oral). This petition under Section 438 Cr.P.C. has been preferred by Inder Dev, Technical Assistant in Gram Panchayat, Dhoun Kothi for grant of pre-arrest bail in case FIR No. 18 of 2013 dated 2.2.2013 registered under Section 420 read with Section 34 IPC at Police Station, Barmana, Tehsil Sadar, District Bilaspur, H.P. 2.It appears that a written complaint was sent by the Block Development Officer, Bilaspur to the Incharge, Police Station, Barmana regarding certain irregularities in the utilization of funds of the Mahatma Gandhi National Rural Employment Guarantee Act (for short ‘MNREGA’). According to this report, there were some awards passed by the Ombudsman in which complicity of the accused had been established regarding the mis-utilisation and misuse of the funds of the MNREGA. 3.It is the case set out in the complaint that against a total sanctioned amount of !7,16,100/-, a sum of !1,75,000/- was found to have not been utilized at all and had thus been appropriated by the petitioner along with Shyam Lal, the then Pradhan and Sada Ram, the then Secretary of the Gram Panchayat. 4.The further case of the prosecution is that as many as five paths were sanctioned under ‘MNREGA’ and as per the detail given below, apart from the path at serial No.5, in all cases, the amounts had been mis-utilised, misused or even appropriated as per the details given below: Sr No. Name of pathSanctionedamount (in !)Amount spent(in !) Deficient amount(in !) 1. Khandoj to Cheel Ghat 1,37,900/- 99,946/- 37,000/- 2. Khandoj to Solag 1,20,700/- 78,124/- 42,500/- 3. Khandoj to Slapper (Part-1 Jamthal) 1,65,500/- 1,12,433/- 53,000/- 4. Khandoj to Jamthal(Baryee to Slapper Part-2) 1,42,500/- 57,764/- 85,000/- 5. Jamthal to Kupao (whole of the amount utilized). 5.In this backdrop, Sh. Virender Kumar Verma, learned Additional Advocate General prayed that the petitioner cannot be released on bail and no leniency can be shown in his favour since he has mis-utilised, misused or even appropriated the amount, which otherwise were meant for the general public. 6.On the other hand, Sh. T.S.Chauhan, learned counsel for the bail petitioner argued that the entire payments qua these projects had been made through cross cheques and in case the amount sanctioned and amount disbursed through cross cheques is calculated, then it would be absolutely clear that no fund or its part had been misappropriated by the petitioner. 6.On the other hand, Sh. T.S.Chauhan, learned counsel for the bail petitioner argued that the entire payments qua these projects had been made through cross cheques and in case the amount sanctioned and amount disbursed through cross cheques is calculated, then it would be absolutely clear that no fund or its part had been misappropriated by the petitioner. He further contended that under ‘MNREGA’ the persons from the cross sections of society are required to be employed and there cannot be any discrimination on the basis of gender or age. In these projects it was mainly the women and aged persons who had worked as would be borne out from the records regarding the execution of the project. He further contended that the assessments infact have been carried out by the authorities of the PWD after registration of the FIR on the basis of which the losses is being assessed and, therefore, cannot be relied upon to prosecute the petitioner. The projects i.e. paths in question had been completed two years prior to the inspection and were katcha paths and, therefore, the assessments so prepared by the Public Works Department cannot form the basis of prosecuting the petitioner. The fury of nature and other factors which have intervened to cause not only wear and tear of the paths but has even resulted in extensive damage to them cannot legitimately be assessed after two years. 7.I have heard learned counsel for the parties and have gone through the records of FIR. 8.At this stage, it shall not be proper for me to refer in detail the respective merits of the case. However, it may be noticed that the present proceedings have been initiated because of certain awards (passed by Ombudsman) constituted under ‘MNREGA’. Ombudsman found certain discrepancies and irregularities in the utilization of the funds and in fact the observation that the Programme Officer-cum­Block Development Officer, Sadar had miserably failed to perform his part of the responsibilities to ensure the proper utilization of the funds under the different schemes. The record further reveals that various allegations of irregularities have been made which otherwise do not found the subject matter of the present FIR. 9. The record further reveals that various allegations of irregularities have been made which otherwise do not found the subject matter of the present FIR. 9. The specific case of the petitioner is that he had made payments to the concerned workers by cross cheques and as a matter of fact, there was no complaint whatsoever on behalf of these workers that they had not received the payment of the work which they done. These works had been inspected and measured and records qua that were duly maintained. More than 50% of the workers were ladies and aged men of more than 70 years, therefore, the work done by these workers could not be compared with the work as is ordinarily done by the young mazdoor employed in the Public Works Department or in the factories. It is further argued that the petitioner has joined the investigation and has handed over the complete record as was available with him to the police and the concerned authority. Yet false and frivolous case has been registered against the petitioner at the instance of the members of the Gram Panchayat, Dhoun Koti. It is the specific stand of the petitioner that under ‘MNREGA’ scheme, the members of the Gram Panchayat, Dhoun Koti was enrolled as mazdoors. The names of such Gram Panchayat members are Surinder Kumar, Prem Lal, NIrmala Devi, Sapna Devi and Saroj Kumari. While Surinder Kumar and Sapna Devi had constructed water tank for their personal use, Saroj Kumari had constructed a goat shed and these persons were still insisting for inclusion of their names under ‘MNREGA’ scheme in order to get the money without doing any work. When this practice was objected to by the petitioner, a false case had been registered at their instance. The petitioner had awarded the job to the holder of job card wherein there was no criteria of age or gender for the allotment and execution of the work. 10.I have given deep and thoughtful consideration to the contentions raised by the respective parties and have thoroughly gone through the contents of the FIR. 11.The law with regard to grant of bail is now well settled. As early as in the year 1978, the Hon’ble Supreme Court in Gurcharan Singh vs. State (Delhi Administration) (1978) 1 SCC 118 laid the following criteria for grant of bail: “22. 11.The law with regard to grant of bail is now well settled. As early as in the year 1978, the Hon’ble Supreme Court in Gurcharan Singh vs. State (Delhi Administration) (1978) 1 SCC 118 laid the following criteria for grant of bail: “22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 43 7(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.* *** * * 24. Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 43 7(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 43 7(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out.” 12. The Hon’ble Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (iv)whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (v) nature and gravity of the accusation; (vi) severity of the punishment in the event of conviction; (ix)danger of the accused absconding or fleeing, if released on bail; (x) character, behaviour, means, position and standing of the accused; (xi) likelihood of the offence being repeated; (xii) reasonable apprehension of the witnesses being influenced; and (xiii)danger, of course, of justice being thwarted by grant of bail. Thereafter, in a detailed judgment, the Hon’ble Supreme Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694 , while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 , laid down the following parameters for grant of bail:- “111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia’s case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr. P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused’s likelihood to repeat similar or the other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. 114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.” (Emphasis supplied) 13. In so far economic offences, the same has been dealt with in detail by the Hon’ble Supreme Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 , wherein the Hon’ble Supreme Court made the following pertinent observations in paras 21, 22, 23, 24, 39 and 40 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. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. 23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 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 contend that there is 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 considerations 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 Indian Penal Code and 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.” 39. Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds :- the primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that of the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. The punishment for the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. 40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.” 14.Taking holistic view of the matter, I find that though the allegations against the petitioner and two other accused are serious of the charge, but yet it is not a case where the petitioner has no defence to offer. Whether such defences is right, valid or defending the accusation is required to be seen at the trial court of the case. The nature of the accusation is wholly based upon the evidence which is already available with the prosecution. The petitioner is permanent resident of Himachal Pradesh and having deep roots in the society and, therefore, there is remote chance of fleeing from justice. Therefore, at this stage, after taking into consideration the nature of the accusation and relevant attending circumstances, I feel that it is a fit case in which the petitioner should be enlarged on bail. The nature of accusation in the present case does not fall within any of the exceptions as laid down by the Hon’ble Supreme Court (supra). Therefore, at this stage, after taking into consideration the nature of the accusation and relevant attending circumstances, I feel that it is a fit case in which the petitioner should be enlarged on bail. The nature of accusation in the present case does not fall within any of the exceptions as laid down by the Hon’ble Supreme Court (supra). 15.As such, the petitioner-accused is ordered to be released on bail on his furnishing personal bond in the sum of !1,00,000/- (rupees one lac) with one surety of the like amount to the satisfaction of learned Judicial Magistrate 1st Class, Bilaspur. It is clarified that the petitioner shall fully cooperate with the investigation, will not tamper with the prosecution evidence, will not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; he shall make himself available during trial. Learned Judicial Magistrate is directed to comply with the directions issued by the High Court, vide letter No. HHC.VIG/ Misc. Instructions/93-IV-71 39, dated 18.3.2013. 16.Lastly it is clarified that any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and shall not be taken into account during the course of the trial or at any stage subsequent thereto for any purpose whatsoever. The trial Court shall decide the matter uninfluenced by any observation made hereinabove. Petition stands disposed of. Copy dasti.