Punjab-Haryana High Court
Chattar Pal vs State Of Haryana on 16 December, 2013
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRM-M-22712-2013 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-50518-19-2013 IN/AND
CRM-M-22712-2013 (O&M)
Date of decision : 16.12.2013
Chattar Pal
...Petitioner
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. R.S. Rai, Sr. Advocate,
with Mr. Gautam Dutt, Advocate,
for the petitioner.
Mr. Kshitij Sharma, AAG, Haryana,
assisted by Sukhbir Singh, D.A. SVB;
DSP Nihal Singh, SVB, Gurgaon;
and Inspector Sukhbir Singh, SVB, Gurgaon.
Mr. Bipan Ghai, Sr. Advocate,
with Mr. Mandeep Kaushik, Advocate,
and Mr. Deepak Sabherwal, Advocate,
for the applicants.
JITENDRA CHAUHAN, J.
The learned counsel for the petitioner contends that the petitioner is only the Registration Clerk, whose role comes only after the registry is done. The main accused i.e. the Tehsildar and the Naib Tehsildar, have not been arrested so far. The petitioner is in custody since 21.08.2012. Challan stands presented and ten out of twenty Sethi Atul five 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh CRM-M-22712-2013 (O&M) -2- witnesses have already been examined.
On the other hand, the learned State counsel, on instructions, submits that the challan could not be presented against the co-accused, Yetender Kumar Chhokar and Mohammad Ishak, the then Tehsildar and Naib Tehsildar, respectively, as they could not be arrested.
Heard.
Though, on the last date of hearing, the learned State counsel urged this Court to allow the present petitioner, but the same was opposed today. However, keeping in view the fact that petitioner is in custody since 21.08.2012, the challan stands already presented qua the petitioner and the trial is in progress, which is not likely to be concluded in the near future, no purpose would be achieved in keeping the petitioner behind bars.
In view of the above, without adverting to the merits of the instant case, this petition is allowed. The petitioner be admitted to bail during the pendency of the trial, subject to her furnishing bail bonds and surety, to the satisfaction of the trial Court.
CRM-50518-519-2013, have been filed in the present regular bail petition, on behalf of applicants, Yatender Chokkar and Mohd. Ishaq, two of the four Revenue Officers of the State of Haryana, whose role has been highlighted as the prime accused in the Vigilance Sethi Atul 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh CRM-M-22712-2013 (O&M) -3- Report dated 14.5.2012, which also forms the basis of FIR bearing the same date. CRM-50519-2013 has been filed with a prayer to be impleaded as Interveners. The FIR on the basis of which the petitioner is facing prosecution, was registered by the State Vigilance Bureau, Gurgaon, pursuant to the investigation conducted by it, as per the directions given by an Hon'ble Division Bench of this Court in CWP No.10058 of 2010. Till the filing of the present regular bail petition, the State of Haryana was practically sleeping over their role in the entire conspiracy to defraud the Panchayat of valuable Shamlat land of village Attwa, District Palwal. During the course of hearing of the present bail petition, on a plea raised by the ld. Senior counsel appearing for the petitioner Chhattar Pal that the State of Haryana is making the petitioner a scapegoat while leaving out the bigger culprits, this Court questioned the investigating authority as to why is it indulging in selective killing? In response to the Court's observation, the SVB promptly arrested two of the four revenue officers against whom till now no action had been taken. However still, the SVB was unable to arrest Yatender Chokkhar and Mohd. Ishaq.
Consequently, a civil misc. application No.16197 of 2013, was moved before the Hon'ble First DB in CWP No. 8160 of 2011, wherein, it was contended that this Bench has made observations qua arrest of the applicants/non-petitioners (i.e. in the present regular bail Sethi Atul 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh CRM-M-22712-2013 (O&M) -4- petition) even though further action on the Vigilance Report itself has been stayed by Hon'ble the First DB vide order dated 29.7.2013, in view of the submissions made by the learned Addl. Advocate General Haryana, appearing before the Hon'ble First DB in CWP No. 8160 of 2011. Pursuant to the said civil misc. application, Hon'ble the First DB, vide order dated 18.11.2013, directed that a copy of the order dated 29.7.2013, passed by it be placed before this Bench indicating the course of action to be followed in the present bail petition, in the light of the statement made by the learned Addl. AG Haryana, before Hon'ble the First DB. Subsequently criminal misc. application noted above came to be filed in the present regular bail petition.
Learned Senior counsel, Mr. Bipin Ghai, appearing for the applicants/non-petitioners, places strong reliance on a judgment of the Hon'ble Supreme Court and order dated 29.7.2013, passed by the Hon'ble First DB of this Court, to contend that this Court has no power to direct the arrest of the accused/applicants. Learned Senior counsel after placing reliance on 2003 (1) RCR Criminal 452 contended that the Hon'ble Supreme Court has held that the High Court has no power to direct the arrest of an accused and it is the sole prerogative of the Investigating Officer/Authority to decide whether or not to arrest an accused. This Court is in complete agreement with the ratio laid down in aforementioned judgment. However, this Court would like to clarify Sethi Atul 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh CRM-M-22712-2013 (O&M) -5- that the learned Senior counsel has placed reliance on the said judgment which is completely out of context insofar as the facts of the present case are concerned. A careful perusal of the cited ruling would show that the High Court entertained a PIL filed by a group of ex employees of a Company wherein they prayed for directions to the investigating agency to take action against the accused who were high ranking Govt. Officers. That Court was thus, exercising writ jurisdiction in a PIL. Thereafter, the High Court concerned passed a specific order that the accused be arrested and a subsequent order which mandated the investigating agency to file a challan against the accused. Said orders were challenged before the Hon'ble Supreme Court and after analysing the relevant statutory provisions, held that the High Court had no power to either direct the arrest of the accused or dictate the outcome of the investigation.
The facts of the present case do not disclose any such order whereby this Bench has put an obligation on the SVB to arrest the accused Revenue Officers. On the contrary, the affidavit filed by the ADGP, SVB, Gurgaon, specifically states that they are making all out efforts to arrest the accused but they are evading arrest. Still further, Para 26 of the Affidavit dated 12.11.2013 filed by the ADGP, SVB, Gurgaon, categorically mentions that proceedings have been initiated to declare the co-accused as proclaimed offenders. The strenuous efforts Sethi Atul 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh CRM-M-22712-2013 (O&M) -6- put in by the SVB, Gurgaon, to arrest the co accused, as detailed in the said affidavit, do not disclose or reflect any intention on the part of the SVB not to arrest the co-accused. In other words, the investigating agency itself is keen on arresting them or else they could have simply stated before this Court that their arrest is not required to be effected or that they are no longer accused. This Court simply sought a response from the investigating agency on the plea raised by the petitioner that the investigating agency is indulging in selective killing. The assertions made by the learned Senior counsel for the petitioner were not devoid of merit as the subsequent events have verified the belief of the learned Senior counsel. It is unfortunate that the said judgment of the Hon'ble Supreme Court has been cited by learned Senior counsel appearing for the applicants without appreciating and understanding the context of the judgment, thereby conveying an unhealthy impression that this Court is violating the law as laid down by the Hon'ble Supreme Court. Moreover, this Court is exercising criminal jurisdiction and not writ jurisdiction, as was the case in the cited judgment. The applicants seem to be fighting a proxy war using the proceedings which the co-accused has filed for redressal of his grievance. The Vigilance Report dated 14.5.2012, which also forms the basis of the FIR, clearly mentions the alleged culpable acts of five Revenue officials in the entire fraud. Surprisingly, in the Challan, no revenue official's name finds mention Sethi Atul 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh CRM-M-22712-2013 (O&M) -7- in Column no. 2 but the final challan, after specifically mentioning the role of co-accused (i.e. revenue officers who are evading arrest) only highlights the role of petitioner Chattarpal who is facing trial. The other revenue officials highlighted in the FIR are neither discharged by the Vigilance Bureau nor are their names mentioned in Column no. 2 as being innocent. Further, a specific stand has been taken by the learned State Counsel that the applicants/non-petitioners are highlighted as the main accused as per the Vigilance Report, their custodial interrogation is required and hence, State is making all out efforts to arrest them.
In so far as the second assertion of the learned Senior counsel is concerned i.e. regarding order dated 29.07.2013, passed by the Hon'ble First DB, perusal of the order passed by the First DB led this Court to inquire from the learned State counsel on the last date i.e. 11.12.2013, as to the number of vigilance reports prepared in the matter by SVB. On instructions from ADGP, SVB, Gurgaon, learned State counsel submitted that there are two vigilance reports. He further clarified that the vigilance report stayed by the First DB is a separate report than the one on the basis of which the petitioner Chattarpal is facing trial. In fact, the very fact that the trial against the petitioner is progressing shows that the vigilance report in the case before this Bench was not stayed at any stage. It is thus patent that complete facts were not brought before Hon'ble the First DB, while moving the Sethi Atul 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh CRM-M-22712-2013 (O&M) -8- application on which orders dated 18.11.2013, were passed. Suffice to say that the State of Haryana has, for reasons best known to it, taken a diametrically opposite stand before this Bench and the Hon'ble First DB. Before the Hon'ble First DB, the submission made on behalf of State of Haryana was that no action will be taken on the Vigilance Report till the culmination of the civil proceedings regarding the title of the land which forms the subject matter of the Vigilance Report. Before this Bench, though qua the petitioner Chattar Pal, learned State counsel, Mr. Vinod Bharadwaj, appearing on the last date, virtually pleaded for grant of regular bail to the petitioner; however, today it has been vociferously argued by the learned State counsel, Mr. Kshitij Sharma, that the applicants/non-petitioners are the main accused and evading arrest. Placing reliance on affidavit dated 12.11.2013, filed by the ADGP, SVB, Gurgaon, it was further submitted that the State of Haryana has already initiated proceedings for declaring the applicants as proclaimed offenders, brief mention of which has already been made above.
In view of the above submissions, when despite the prominent role highlighted in the FIR, the applicants have successfully evaded arrest coupled with the affidavit filed by the ADGP, SVB, Gurgaon, that earnest efforts are being made to arrest the remaining accused and even proceedings to get them declared proclaimed Sethi Atul 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh CRM-M-22712-2013 (O&M) -9- offenders have been initiated, this Court is left with no option except to conclude that CRM-50519-2013, is misconceived and deserves to be rejected. Accordingly, the same is dismissed with costs of Rs. 10,000/- each, to the applicants. The conduct of the applicants/non-petitioners is deplorable. However, this Court does not wish to reflect further lest it prejudices the case of either of the parties. Applicants/non-petitioners have not filed any petition for their benefit and redressal of their grievance.
This Court, vide order dated 11.12.2013, had directed the ADGP, SVB, Gurgaon to file a fresh status report regarding the efforts made by the Agency to arrest the accused who, as per the status report dated 12.11.2013 filed by the ADGP, Sh. KK Sindhu, are on the run. In addition, he was directed to remain present in the Court today.
Regrettably, neither has the ADGP bothered to come to the Court today nor has the Status Report been filed under his signatures. In the circumstances, the status report filed through the DSP, today in the Court, deserves to be ignored. The learned State counsel attributes this omission on the part of the ADGP, SVB, Gurgaon, to lack of communication and tenders an apology on his behalf, the bona fide of which cannot be gauged in the absence of the officer concerned himself. The orders for his presence before this Court as well as filing of status report were dictated in open court and in the presence of the Sethi Atul 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh CRM-M-22712-2013 (O&M) -10- counsel and even the officer himself. Thus, there was apparently no scope of any lack of communication since nothing was required to be communicated, the order being passed in the hearing of the officer concerned and when everybody else is present in the Court. Therefore, this Court is neither inclined to accept the explanation offered by the learned State counsel nor the apology. In fact, the learned State counsel wanted to know whether the presence of the officer is required on the next date. The Court was categorically affirmative regarding the presence of the officer.
Section 2 (b) of the Contempt of Courts Act, 1971, defines 'civil contempt' as under:
2. (b) "Civil Contempt" means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court Accordingly, this Court is of the opinion that prima facie, the ADGP, SVB, Gurgaon, is guilty of civil contempt of this Court.
The seriousness of the irresponsible conduct of the officer which amounts to unbecoming of a responsible senior State functionary, compels this Court to take this unpleasant step. Consequently, this Court deems it appropriate to issue a show cause notice to ADGP, Sethi Atul 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh CRM-M-22712-2013 (O&M) -11- SVB, Gurgaon, as to why contempt proceedings under the Contempt of Courts Act, 1971, be not initiated against him for willfully disobeying the directions of this Court dated 11.12.2013. The Officer concerned shall furnish a reply to the show cause notice by 20.12.2013. He is also directed to appear in the Court, on the next date, i.e. 20.12.2013.
16.12.2013 (JITENDRA CHAUHAN) atulsethi JUDGE Sethi Atul 2013.12.18 10:31 I attest to the accuracy and integrity of this document Chandigarh