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2021 DIGILAW 697 (JK)

Sonam Punchok v. UT of J&K

2021-12-29

TASHI RABSTAN

body2021
ORDER : Tashi Rabstan, J.-Apprehending arrest in FIR No. 18/2021 registered at 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 has filed the present application on the following grounds:- (i) That the applicants are neither named in the FIR nor in the departmental inquiry report, pursuant to which aforesaid FIR has been registered. (ii) That the applicants despite having no involvement in the commission of any offence mentioned in aforesaid FIR have been illegally summoned by the Police Station, Leh and the investigation has been entrusted to an officer contrary to manner provided under the Act. The applicants cannot be subjected to custodial interrogation by the agency lacking the statutory authority of protection against such illegal and vexatious arrest. (iii) That the applicants have reason to believe that some vested interest inimical to the applicants have created undue influence over the administrative authorities and the police concerned to effectuate arrest just to cause harassment to the applicants. (iv) That neither any preliminary inquiry has been conducted against the applicants as required under law nor they have been proceeded departmentally in relation to the allegations contained in the FIR, as such, the action of securing arrest is unfounded. Moreover, the registration of FIR and the investigation launched thereafter is contrary to the provisions of the Prevention of Corruption Act. (v) That the applicants are neither involved in the commission of any offence nor there any incriminating circumstances to involve the applicants in the case related to fake mutations referred to in the FIR. The police concerned may resort to indiscriminate arrest at the behest of administrative authorities regardless of the absence of any material to connect the applicants with the commission of any offence. (vi) That the investigation under the Prevention of Corruption Act is being carried by local police beyond the jurisdiction of the Act. However, Police Station Anti Corruption Bureau, Srinagar has territorial jurisdiction over the offences committed under Prevention of Corruption Act pertaining to Ladakh. Since the FIR stands registered at Police Station, Leh, the local courts would lack the jurisdiction of entertaining the anticipatory bail. However, Police Station Anti Corruption Bureau, Srinagar has territorial jurisdiction over the offences committed under Prevention of Corruption Act pertaining to Ladakh. Since the FIR stands registered at Police Station, Leh, the local courts would lack the jurisdiction of entertaining the anticipatory bail. Therefore, the petitioners are constrained to invoke the jurisdiction of this Court. 2. Learned counsel for the applicants submits that all the applicants except applicant No.2 are in service and are entitled to protection under Section 17A and 19 of the Prevention of Corruption Act as well as Section 197 Cr.PC. The inherent protection conferred on public servants under Section 17A grants protection against any kind of inquiry or investigation sought to be launched under the Prevention of Corruption Act without the permission of the government. Respondent- Investigating Agency in order to circumvent the mandatory statutory protection has restored to investigation beyond the purview of Prevention of Corruption Act. Furthermore, it has been urged that the police concerned have adopted the inquiry report formulated by the administrative authority for the registration of the FIR which does not in any manner nominate the applicants. The inquiry report is reproduced in the FIR and since the names of the applicants do not exist in the elaborate report nor any element of conspiracy is introduced in the FIR, therefore, the exercise undertaken by the police to cause arrest is a misuse of powers. There is absolutely no involvement of the petitioners manifested either by the departmental inquiry report or by the contents of the FIR. Thus, it has been prayed that the interim bail granted to the applicants may be made absolute. 3. It seems that this Court vide order dated 16.04.2021 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 uptil now and nowhere in the objections, the respondents have contended that the applicants are not cooperating with the Investigating Officer. 4. 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. 5. 4. 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. 5. 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. 6. Heard learned counsel for the parties and perused the record. 7. 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 16.04.2021. 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. 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. In this regard, learned counsel for the applicants contends that neither the applicants named in the alleged FIR nor made part of the investigation, the question of custodial interrogation does not arise at all. 8. 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. 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). 9. Considering the fact that the applicants are already in interim bail pursuant to order dated 16.04.2021 and 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 16.04.2021 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 16.04.2021, the respondents can lay a motion before this Court for cancellation of bail of the applicants. 10. Disposed of as above along with connected CrlM(s).