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2007 DIGILAW 266 (JK)

Sonam Dawa (Dr. ) v. State Of J. &K.

2007-12-01

J.P.SINGH

body2007
1. Petitioners have filed this application under Section 497-A of the Code of Criminal Procedure seeking bail in anticipation, of arrest in F.I.R No. 271 of 2007, registered with Police Station Leh. 2. The petitioners say that the Ladakh Buddhist Association (hereafter, LBA, for short) is a Society registered under the Societies Registration Act and Dr. Sonam Dawa is its elected President. The President is stated to have been facing resistance from the workers of a particular Political Party, whose members had made attempts to oust him from the post of President of the Association. A Civil Suit too is stated to have been filed by the group, which is opposing Dr. Sonam Dawa, restraining him from functioning as President of the Association. An interim injunction issued in ex-parte by Learned Sub-Judge, Leh on 28-04-2007 against petitioner No.1 was later modified on 24-09-2007, restraining him only to the extent of operating the Bank Accounts of LBA. The Court had refused to pass any injunctive direction to restrain him from carrying on the affairs of the LBA as its President. It appears that the ex-parte interim direction issued by Learned Sub-Judge on 28-04-2007, too, now stands vacated by Learned Principal District Judge, Leh Ladakh vide his Order dated 30th of June, 2007. 3. The petitioners say that on 2nd of November, 2007 an attempt was made by the so called members of the Adhoc Committee of LBA to occupy the Office of petitioner No.1 when a function was going on at Chowkhang Vihara in the premises where LBA Office is situated. Petitioner No.1 had reported the matter to the police, which, it is alleged, had not intervened in the matter. The petitioners accuse the police of being biased because they had registered F.I.R No. 271 of 2007 which had been lodged at the behest of those who according to the petitioners were the aggressors. 4. Petitioner No.1 had reported the matter to the police, which, it is alleged, had not intervened in the matter. The petitioners accuse the police of being biased because they had registered F.I.R No. 271 of 2007 which had been lodged at the behest of those who according to the petitioners were the aggressors. 4. Apprehending their arrest by the police in F.I.R No. 271 of 2007 registered at Police Station, Leh, under Sections 147, 148, 325, 326 and 307 RPC, the petitioners seek indulgence of this Court for admitting them to bail in anticipation of their arrest on the ground that they are law abiding citizens who had been framed in a false and frivolous F.I.R and that the object of the F.I.R was to somehow arrest the petitioners to keep them in confinement for couple of days, so that the office of the LBA was grabbed by the so called members of the Adhoc Committee. 5. Petitioners have placed on records the copies of the orders passed by the Civil Court as also order dated 06-11-2007 of Learned Sessions Judge, Leh whereby he had declined their request to admit them to bail in anticipation of their arrest. 6. It is stated by the State-respondents that one Tsewang Nurboo, member Adhoc Committee LBA had lodged a written report against 25 persons alleging that when a meeting of General Council and Nambardars/respectable persons, of various Villages of Ladakh was in progress in the meeting hall of Ladakh Buddhist Association, Leh, that the petitioners under the leadership of petitioner No.1, Ex-President LBA, attacked the members attending the meeting with deadly weapons including Saria (iron rods), lathis (clubs) and stones, which resulted in injuries, as a result whereof, those injured in the incident were admitted in the hospital. The Investigating Officer is stated to have seized weapons of offence including LPG Cylinder, lathis, spades, saria and stones. Two persons, out of the gathering, are stated to have received grievous injuries. It is stated that the petitioners had committed offences punishable under Sections 307, 326, 325, 323, 148 and 149 RPC. 7. The State-respondents seek rejection of petitioners™ application because they are involved in commission of offences which carry punishment up to life imprisonment. 8. I have heard learned counsel for the parties and gone through the case diaries which were produced by Station House Officer, Police Station, Leh, through the learned State Counsel. 7. The State-respondents seek rejection of petitioners™ application because they are involved in commission of offences which carry punishment up to life imprisonment. 8. I have heard learned counsel for the parties and gone through the case diaries which were produced by Station House Officer, Police Station, Leh, through the learned State Counsel. Case law cited at the Bar too has been perused. 9. Perusal of the records, produced by the Station House Officer, reveals that before the lodging of F.I.R No. 271/2007, another F.I.R being F.I.R. No.270/2007 stood registered in the Police Station under Sections 147/323 RPC. This F.I.R had been registered, on the basis of a written complaint, by petitioner No.1 against Tsewang Nurboo Paldan and Tsering Dorjai Stokpa, in which it had been alleged that group of persons under the leadership of Tsewang Nurboo Paldan had broken open the meeting hall of LBA without any authority and by force, and had misbehaved with the employee of the Association who could be saved by some ladies. 10. Records further bear testimony to the fact that another written com- plaint had been lodged at about 11 a.m. by petitioner No.1 saying that group of persons headed by Tsewang Nurboo Paldan had forcibly entered the Office Complex of LBA and around 100/200 persons assembled there had delivered provoking speeches, and, had used stones, bricks, glass, bottles etc., which resulted in violence between two groups of persons. 11. Without making elaborate and detailed analysis of the evidence/material on records, which course may not be permissible while dealing withapplications for grant or refusal of bail, I would like to make reference to the following facts which are apparent from the records. 12. Dr. Sonam Dawa, heading one group of persons and Lobzang Tsundus, son of Tsewang Nurboo, representing the other group of persons, have been litigating in the Civil Court claiming right to manage the affairs of LBA. The Civil Court had not issued any injunctive direction, as sought for by Lobzang Tsundus and another, against petitioner No.1 Dr. Sonam Dawa. The two groups headed by Dr. Sonam Dawa and Tsewang Nurboo, appear to have clashed in the office of LBA at Chowkang Vihar where injuries are stated to have been caused to both the groups. Two persons belonging to the group headed by Tsewang Nurboo are stated to have received grievous injuries on nose and arms. Sonam Dawa. The two groups headed by Dr. Sonam Dawa and Tsewang Nurboo, appear to have clashed in the office of LBA at Chowkang Vihar where injuries are stated to have been caused to both the groups. Two persons belonging to the group headed by Tsewang Nurboo are stated to have received grievous injuries on nose and arms. The injury reports, regarding rest of the persons, have not yet been made available to the police by the concerned authorities. 13. Whereas the police has recorded the statements of few witnesses in F.I.R No. 271/2007; this exercise, however, does not appear to have been undertaken with regard to F.I.R 270/2007. The investigation is still in its infancy and the police has yet to find out, as to which of the two groups was the aggressor. 14. Going by the law as it stands settled, the police is required to investigate both the F.I.Rs simultaneously so as to find out as to which one of the F.I.Rs reflected correct version of the occurrence. 15. During the course of consideration of this petition, Mr. B.S. Salathia, AAG, referred to a decision taken under the Chairmanship of Dr. Mandeep K. Bhandari, IAS, Deputy Commissioner, Leh, for negotiation of issues between the two groups associated with LBA, Leh. 16. Following decisions appears to have been taken at the meeting, which read thus: - 1) Keeping in view the entire circumstances prevailing in the Leh town and around, and in the best interest of the Buddhist community, it was unanimously decided that a General Council meeting of the Ladakh Buddhist Association be called on 28th November, 2007. The venue for the meeting was decided as the Council Hall of Chokhang, which shall be opened on the same date and the meeting got conducted under full security cover. 2) The meet in g shall b e presided over b y t h re e members unanimously decided by both the groups as Shri Tashi Ratagais. Sh. Tsewang Rigzin and Shri Morup Namgail. They shall conduct the proceedings and decide on the constitution of new three Member Adhoc Committee of LBA to be duly elected/agreed to by the General Council. 3) The minimum quorum of the General Council shall be 137 Members for this meeting. Sh. Tsewang Rigzin and Shri Morup Namgail. They shall conduct the proceedings and decide on the constitution of new three Member Adhoc Committee of LBA to be duly elected/agreed to by the General Council. 3) The minimum quorum of the General Council shall be 137 Members for this meeting. 4) The above named 3 Members who shall preside over the General Council Meeting shall also send the invitation for the participation in the General Council Meeting. Both the groups shall by 15th November morning provide this presiding team with the list of Members of the General Council. 5) One representative each from both the section shall assist the security officers at the gate of Chokhang in identification of the Members of the General Council. The concerned Members should also carry their respective Identity Cards in order to prove their identity in case of any objection in this regard. 6) The verification of General Council Members from Zangskar (Kargil) shall take place under the chairmanship of ADC Leh. Sh. Sonam Gyalson on 15th November at 11 AM in his office chamber. Representatives from both the groups shall bring in the lists for due verification as above and satisfy themselves in this regard. 7) The Adhoc Committee thus elected/decided upon shall immediately take over the office of the LBA at Chokhang for carrying out the activities during next one month, which may get extended in case of unavoidable circumstances. 8) Dr. Sonam Dawa, the present President, LBA shall forthwith tender his resignation from the post and hand over the charge to the new Adhoc Committee of LBA, there upon. 9) The Agenda of the General Council meeting to be held on 28/11/2007 shall be to decide upon the Constitution of three Member Adhoc Committee of LBA and to decide upon the date of election of Central Working Committee. 10) The Adhoc Committee of the LBA which shall come into place, shall get the fresh election of the new Central Working Committee as per the Constitution of LBA. 11) The employees of LBA shall continue in their present position after constitution of the new Adhoc Committee. 17. 10) The Adhoc Committee of the LBA which shall come into place, shall get the fresh election of the new Central Working Committee as per the Constitution of LBA. 11) The employees of LBA shall continue in their present position after constitution of the new Adhoc Committee. 17. Keeping in view the facts and circumstances of the case, the pendency of civil litigation between the parties, the administration having taken steps to resolve the dispute between the parties and the police having not yet concluded as to which one of the two groups was the aggressor, I am of the view that the petitioners need to be protected for some time till they move the regular Court to seek consideration of their release on bail because the grant or refusal of bail primarily rests with the Magistracy/Court of Competent jurisdiction, which has to decide such applications strictly on their merits and in accordance with law, keeping in view the settled principles of law for grant or refusal of bail. 18. I would, accordingly, dispose of this petition by providing that in the event of the arrest of the petitioners, they shall be released on bail on their furnishing personal recognizance and recognizance of their sureties in the amount of Rs.20,000/- (Rupees Twenty Thousand) each to the satisfaction of the Investigating Police Officer. This order shall remain in operation only for a period of three weeks with the condition that the petitioners shall report to the Investigating Police Officer within a period of four days and shall make them- selves available to him as and when so required. They shall cooperate with the Investigation and shall not impede the course of investigation in any manner whatsoever and shall not leave District Leh without the permission of Chief Judicial Magistrate, Leh. 19. As and when the petitioners move the Magistracy/ Competent Court of jurisdiction to seek consideration of their release on bail, the Court shall decide the application/s strictly on merits uninfluenced by the observations/findings recorded by Learned Principal Sessions Judge, Leh or by this Court in releasing them on bail for a period of three weeks. It is hoped that the police, as, in duty bound, shall hold fair investigation in the two F.I.Rs, so that those who are found guilty, are brought to book in accordance with law. 20. Case diaries shall be returned to the State Counsel.