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2012 DIGILAW 584 (JK)

Mohammad Ashraf Malla v. Central Bureau of Investigation

2012-09-18

MANSOOR AHMAD MIR

body2012
1. By the medium of this application, the petitioner has invoked the jurisdiction of this Court in terms of Section 497-A of the Code of Criminal Procedure (for short Cr.P.C.) for grant of bail in anticipation of his arrest in FIR No. 1232012A0002 dated 24.01.2012 registered at Police Station CBI, Srinagar, under Sections UO-B, 420,467, 468 and 471 of Ranbir Penal Code (for short RPC) read with Sections 5(2) & 5(1)(d) of Prevention of corruption Act (for short PC Act), on the grounds taken in it. 2. It is stated that the petitioner, apprehending his arrest in the aforesaid FIR, approached the Court of Special Judge, Anti Corruption, Srinagar (Kashmir) for grant of bail on 02.08.2012. Interim bail was granted in his favour till 04.08.2012. However, the same came to be rejected vide order dated 06. 08. 2012. It is averred in the application that the petitioner was not in a position to cause his appearance before the trial court or before the Investigating Officer because of his ill health and medical advice to be on bed rest with effect from 01.08.2012 to 10.08.2012. In support of this contention, the petitioner along with the application has annexed a photocopy of the Medical Certificate issued by the Medical Officer, Primary Health Centre, Kunzer (annexure "C"). Further, it is contended that in case his arrest is effected, it would adversely affect his reputation and status and also cause prejudice to him. He undertakes to remain present before the Investigating Officer as and when required. No other ground has been urged in the bail application for grant of bail in anticipation of his arrest. 3. Respondent-CBI has filed objections resisting the bail application filed by the petitioner. It is alleged that one Shakeel Ahmad Malik son of Abdul Gani Malik, resident of Panzinara, Srinagar, hatched a conspiracy in connivance with the petitioner to facilitate the illegal ways and means of said Shakeel Ahmad Malik, thereby the petitioner, misusing his official position, managed some bogus and forged revenue documents and also tampered with the evenue record with respect to a piece of land situated at Village Takia, Batapora. The actual owner had acquired the ownership of said land as per the mandate of Sections 04 and 08 of J&K Agrarian Reforms Act, 1976, but the petitioner, being the Patwari of the halqa, issued bogus revenue extracts showing the said land as Banjar-e-qadeem instead of agricultural land. It is alleged that he tampered with the revenue record of village Takia, Batapora by changing the type of the land from Abi Awal to Banjar-e-qadeem against some consideration and in order to give undue benefit to said Shakeel Ahmad. It is further contended that the petitioner has replaced the whole original khasra-girdawari register of Village Takia, Batapora. During search of his house, revenue records of the halqa was found in his bed room which was otherwise supposed to be kept in Patwar-khana. Therefore, the custody of petitioner is required to take the investigation of the case to its logical end. It is further stated that after getting the interim anticipatory bail, the petitioner did not cooperate with the Investigating Officer and remained absent. Thus he has misused the interim bail granted by the Court of Special Judge Anti-Corruption, Srinagar. 4. The Apex Court in the case Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 , held that the Courts, while exercising jurisdiction in terms of Section 497-A Cr.P.C, have to keep in mind the interests of the Society, interests of the individual as well as interests of the State. The Courts while granting anticipatory bail or interim bail must judge whether a ground for anticipatory bail is made out. 5. While going through the contents of the application, one comes to an inescapable conclusion that the petitioner has failed to carve out a case for grant of interim bail or regular bail in terms of Section 497-A Cr.P.C. in his favour. Patwari is the custodian of public/revenue records, he has to maintain and preserve the same. Forging the record is a criminal offence. 6. The assertion of the petitioner that he could not cause appearance before the Court of first instance or before the Investigating Officer in terms of the interim bail because of his ill health, on the face of it appears to be an unfounded excuse. Forging the record is a criminal offence. 6. The assertion of the petitioner that he could not cause appearance before the Court of first instance or before the Investigating Officer in terms of the interim bail because of his ill health, on the face of it appears to be an unfounded excuse. As per his own showing, he presented the application for grant of anticipatory bail before the Court of Special Judge, Anti-Corruption on 02.08.2012 and the next date fixed was for 04.08.2012. On the next date, i.e., 04.08.2012, the Investigating Officer laid a motion before the trial court with the allegation that the accused did not join investigation after getting the anticipatory bail and is hampering the investigation. The trial court, after going through the entire material, dismissed the bail application in presence of learned counsel for petitioner. Petitioner has not questioned the said order. Annexure "C" to the application in hand discloses that the petitioner was examined on 01.08.2012 and was advised to have bed rest till 10.08.2012. If the petitioner was actually bed ridden on 01.08.2012, as is sought to be established by the Medical Certificate, then who presented the bail application bail before the court of first instance is not forthcoming. If he was not in a position to appear before the Investigating Officer, then he or his counsel should have made a motion before the trial court and sought dispensation of personal appearance before the Investigating Officer. 7. It is the beaten law of the land that bail under Section 497-A Cr.P.C. cannot be granted in favour of an official against whom allegations of fraud, tampering with the public record and charges of corruption are leveled. 8. I have examined the entire issue. It is not a simple case of forgery. The allegations levelled are very heinous. Such a conduct on the part of a Government servant, particularly a Patwari shakes credibility of the State, as nobody would trust any public servant entrusted with the responsibility of keeping the public records. One fails to understand why the CBI failed to arrest the petitioner right from the date of lodging of the FIR till 02.08.2012 and, thereafter, from 06.08.2012 till date. CBI owes an explanation and is an eye-opener for the authorities at the helm of the CBI. 9. Viewed thus, there is no merit in the bail application. Dismissed as such. One fails to understand why the CBI failed to arrest the petitioner right from the date of lodging of the FIR till 02.08.2012 and, thereafter, from 06.08.2012 till date. CBI owes an explanation and is an eye-opener for the authorities at the helm of the CBI. 9. Viewed thus, there is no merit in the bail application. Dismissed as such. Registry to convey the order to the Investigating Officer and CBI authorities.