HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
Bail App No.105/2021
CrlM No. 622/2021
CrlM No.620/2021
CrlM No.621/2021
Reserved on : 21.12.2021
Pronounced on: 29.12.2021
Sonam Dorjey and another ....Petitioner(s)
Through :- Mr.K.M.Bhati, Advocate
V/s
UT of J&K and others ....Respondent(s)
Through :- Mr. Eishaan Dadhichi, Advocate vice Mr.
Vishal Sharma, ASGI
Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
ORDER
1. It is contended that the applicant No. 1 is serving as Sub Divisional Magistrate Zanskar and the applicant No.2 has superannuated as Sub Divisional Magistrate in November 2020. It is further contended that the applicant No. 2 served as Tehsildar in Tehsil Saspol of District Leh during the year 2009 to 2010 and in 2014 and the applicant No.1 served as Tehsildar in Tehsil Saspol of District Leh during the year 2007 to 2008, 2011 and 2013, and during the said period of their posting in the said area, a number of mutations were attested on spot in exercise of the powers vested in them under law with regard to succession, sale deeds and Nautors under Elaan No, 38 under the Land 2 Bail App No.105/2021 Revenue Act regarding the occupation and utilization of state land for agriculture purposes as per the situation existing on spot at that time after observing all the legal formalities including visiting the spot and recording the statements of the villagers with regard to the claims made by the parties and the signatures were obtained on the mutation registers as per law and verifying the objections if any raised with regard to the claims of the occupants of the land. During the period of their posting as Tehsildar, a number of persons requested and pressurized the petitioners to make revenue entries in the shape of mutations with regard to different chunks of land under the Nautors under Elaan No, 38 under the Land Revenue Act, however on visiting the spot, when their claim was not found genuine, no mutations were attested being in violation of the law despite the highest political pressures.
2. It is also contended that one Sonam Angchok who wanted to occupy some state land and get it mutated in his favour illegally on the strength of the mutations made in favour of the genuine persons, filed an RTI application in the year 2017 before the then Tehsildar Khalsi seeking information with regard to the mutations attested after the year 2009 in village Saspol, and the information was furnished to him and on the basis of the said information, the said person filed representation before the CEC Ladakh Autonomous Hill Development Council Leh alleging embezzlement of thousands kanals of land in and around his village and the said motivated representation, led to the initiation of an enquiry with regard to the mutations attested in the said village. It is also contended that Private Secretary to CEC/Chairman Ladakh 3 Bail App No.105/2021 Autonomous Hill Development Council vide his letter No. LAHDC/CEC/23/18/ 217-223 dated 05.05.2018 wrote to Deputy Commissioner Leh mentioning therein about the representation and RTI reply as submitted by the said person regarding the alleged illegal mutations, and ordered him to constitute high-level enquiry in the matter for action under law. Although no enquiry could have been started into the lawful mutations attested on spot after conducting a detailed enquiry as provided under law, on the basis of a complaint filed by an interested person who used every forum to take revenge of not allowing him to occupy the state land illegally. It is submitted that without checking and scrutinizing the official record minutely and enquiry was ordered which was given wide publicity by the said interested persons for the social and political gains and the applicants were condemned in this nefarious trial. It is also contended that in the meanwhile the persons who were conferred the rights of Nautors lawfully, under Elaan No, 38 under the Land Revenue Act, were issued the notice by the concerned Tehsildar and the said aggrieved persons filed a revision petition against the order dated 05.05.2018 whereby the CEC has directed the Deputy Commissioner to initiate enquiry into the issue of attestation of mutations in favour of different persons before the Joint Financial Commissioner who vide order dated 21.10.20219 set aside the said order dated 05.05.2018, with an observation that in case Tehsildar concerned or any other revenue official initiate any proceeding whatsoever, with respect to the land involved in dispute, applicants therein shall be provided full opportunity of hearing. The Tehsildar Saspol directed the persons in whose names, the mutations 4 Bail App No.105/2021 were attested, to appear in his office on 04.11.2019 and thereafter cancelled the said mutations and the said persons filed a writ petition in this Court, however, the Tehsildar concerned proceeded with the matter.
3. It is contended that a complaint on the basis of the report submitted by the Tehsildar was forwarded to the police for action under law against the applicants and others and FIR No. 18 of 2021 U/S 420, 467,468,471,474 IPC and 7, 13 PC Act of Police Station, Leh came to be registered. Apprehending arrest in FIR No. 18/2021, Police Station, Leh for the offences punishable under Sections 420,467,468,471,474 IPC read with Sections 7,13 of Prevention of Corruption Act, and on being summoned by the Additional District Magistrate, Leh upon instructions from SSP, Leh for questioning in the above mentioned FIR vide communication JC-97 (Misc) 2021 (903) dated 27.03.2021, the applicants approached this Court with the present application. The applicants challenged the said FIR No. 18/2021 of Police Station, Leh U/S 420, 467,468,471,474 IPC and 7, 13 PC Act in this Hon'ble High Court in CRM(M) No.177/2021 and also filed the aforementioned bail application before this Court wherein on the first date of hearing the applicants were protected from being arrested.
4. The applicants apprehending the arrest also approached to the court of Principal Sessions Judge, Leh on 27.03.2021, however, the said Court declined to consider the said petition for grant of anticipatory bail on the ground that it has no jurisdiction as no special Court has been constituted in UT of Ladakh at Leh for dealing with offences under Prevention of Corruption Act. The applicants were left with no 5 Bail App No.105/2021 alternate remedy except to approach this Court for grant of anticipatory bail as the FIR in question is illegal, as the allegation alleged are totally wrong and the FIR is maliciously instituted with an ulterior motive for wreaking vengeance on the applicants, although on an appeal, the said mutations have been set aside on reassessment of the matter by the concerned at a later point of time. It is contended that the FIR against the applicants is sheer abuse of process of law as they are being victimized on political and personal considerations whereas the action done by the applicants in attesting the mutations have been called in question before the high forums and the same has been dealt with as per the law and since there is no iota of allegation against applicants for having done the mutations for any ulterior motive or with any mens rea.
5. It seems that this Court vide order dated 19.04.2021 granted interim bail to the applicants subject to certain conditions and said bail stands extended from time to time. Learned counsel for the applicants contends that the applicants are cooperating with the Investigating Officer from time right from beginning uptill now and nowhere in the objections, the respondents have contended that the applicants are not cooperating with the Investigating Officer.
6. The respondents have filed objections contending therein that some allegations are yet to be ascertained which is possible only through sustain interrogation of the suspects for which the custody of the alleged accused-applicants is unavoidable so as to reach logical conclusion of the case.
6 Bail App No.105/2021
7. Learned counsel for the applicants contends that the applicants are cooperating with the Investigating Agency and have appeared before them on a number of occasions and the applicants don't have any access to the record and are no longer in those offices and it has already been seized and scrutinized by various agencies in appeal as well as the High Court and the applicants are available to the police agency at all times being in government service and residents of the area having deep connections in the society and are not and cannot flee from the Administration of Justice and moreover the applicants cannot temper with the record or influenced the witnesses as the whole case pertains to the record and the said record is already in the government offices and with the investigating agency and as such the custodial interrogation of the applicants is neither justified nor required and it would if allowed cause untold miseries and violation of Article 21 of the Constitution of India and as such the applicants deserve the liberty of anticipatory bail which has already been granted, but, is to be made absolute.
8. Heard learned counsel for the parties and perused the record.
9. The applicants apprehending their arrest in case FIR No. 18/2021 of Police Station, Leh under Sections 420,467,468,471,474 IPC and 7, 13 Prevention of Corruption Act, initially approached the Court of Principal Sessions Judge, Leh, however, the said Court declined to consider the said application on the ground that it has no jurisdiction as no special Court has been constituted in the UT of Ladakh at Leh for dealing with offences punishable under the Prevention of Corruption 7 Bail App No.105/2021 Act. Respondents have not contended that the applicants, at any point of time, have violated the conditions imposed by this Court, while granting interim bail in terms of the order dated 19.04.2021. They have only pleaded that the custodial interrogation of the applicants is essential for conclusion of the investigation, therefore, the applicants do not deserve any leniency of granting them any liberty, thus, prayed for rejection of the bail application.
10.Right to life and personal liberty is an important right granted to all the citizens under Article 21 of the Constitution of India and it is considered as one of the precious rights. Recent decision of the Hon'ble Supreme Court in case of P.Chidambaram V. Directorate of Enforcement, reported in (2020) 13 SCC 791 yet again gave rise to the eternal debate between custodial interrogation and anticipatory bail. Section 438 of the Criminal Procedure Code deals with 'grant of bail to a person apprehending arrest' (commonly known as anticipatory bail) and empowers the High Court or the Court of Sessions to grant anticipatory bail by exercising discretion. Anticipatory bail can be granted subject to conditions that the accused shall make himself available for investigation as and when required and not threaten or influence witnesses or tamper with evidence. In addition, any other condition in the interest of justice can also be imposed. The most comprehensive analysis of the nature and scope of Section 438 is contained in the Constitution Bench Judgment of Gurbaksh Singh Sibbia V. State of Punjab reported in 1980 SCC (2) 565. This decision emphasizes that Section 438 has to be interpreted to embody the principle of presumption of innocence in favour of the accused. 8 Bail App No.105/2021
This because at the time of seeking anticipatory bail, the guilt of the accused is yet to be proven through trial. Section 438 is viewed as the provision that protects personal liberty, which lies at the heart of Article 21 of the Constitution of India. Having said that, the paramount consideration for anticipatory bail should eventually be the furtherance of the ends of justice. In order to do complete justice, the judgment in Gurbaksh Singh's case which has defined the legal framework for grant of bail, has to be made the guiding beacon in the quest to find objectivity in anticipatory bail cases. Anticipatory bail can be granted even after charge sheet has been filed. (see- Adil V. State of UP).
11.Considering the fact that the applicants are already in interim bail pursuant to order dated 19.04.2021and no accusations have been made that they have missed the concession in any manner, so this is a fit case where the interim bail granted to the applicants vide order dated 19.04.2021 is required to be made absolute on the same terms and conditions. Ordered accordingly. In the event of violation of any of the conditions imposed by this Court in terms of order dated 19.04.2021, the respondents can lay a motion before this Court for cancellation of bail of the applicants.
12.Disposed of as above along with connected CrlM(s).
(Tashi Rabstan) Judge Jammu 29.12.2021 'Madan-PS' Whether order is speaking: Yes/No.
Whether the order is reportable: Yes/No. MADAN LAL VERMA 2021.12.29 16:45 I attest to the accuracy and integrity of this document