Sonam Dorjey And Another vs Ut Of J&K And Others
2021 Latest Caselaw 1775 j&K

     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

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

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

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

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.

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

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.

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
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