Pala Singh vs State of Punjab

K.S. Kumaran, J.

F.I.R. No. 60 dated 31.10.1999 has been registered at Police Station Mulepur under Sections 447, 379, 427, 148 and 149 I.P.C. and under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act) on a complaint from the Harijans of village Jaggo Chinerthal, wherein the following allegations are found :

In spite of the stay order of the High Court, the paddy crop in 20 acres of land of Harijans was cut by the Zimidars forcibly at night with the help of the police. The applicants are the residents of village Jaggo Chinerthal and belong to Ramdasia caste. They got the land on lease from Gram Panchayat in the names of Joginder Singh and Gajjan Singh and are cultivating the land for the last 3540 years. These applicants have got stay from the High Court of Punjab and Haryana against the order of Director Consolidation regarding the possession of the Chakotedar and stay has been obtained in the name of Joginder Singh.

On 13.10.1999 at about 10 A.M. the complainants were called by Jaswant Singh S.H.O. Police Station Mulepur and after seeing the papers of the complainants, he stated that the paddy crop can be cut by the persons whom he wants to cut. On the same day at 9 P.M. Incharge of Police Station Mulepur, S.H.O. Jaswant Singh along with the police party came to the village and Palla Singh, and Partap Singh''s party, by taking three machines, started cutting the paddy crop with the help of S.H.O. and they were having 3/4 armed persons. Since the police did not help the complainants and since there were large number of persons, the complainants were not in a position to stop them. Palla Singh and Partap Singh''s party cut the paddy crop and took the same to Mandi accompanied by the police. The complainants went to the Police Station Mulepur on the same night for lodging the complaint against Palla Singh and Partap Singh''s party but the Munshi refused to record the report. The S.H.O. also did not heed to the request to record the F.I.R. Paddy from 20 acres has been cut forcibly. Seven engines and nine pattas have been removed by Palla Singh, Kartar Singh, Jang Singh, Balbir Singh, Nirmal Singh, Pritam Singh and Bant Singh''s party and taken away to their houses. Palla Singh''s party is threatening the complainants that the complainants will be killed

The petitioners approached the Sessions Court, for bail, but the learned Additional Sessions Judge, Fategarh Sahib, declined their request. That is why the petitioners have approached this Court under Section 438 Cr.P.C. for bail in anticipation of arrest.

I have heard the counsel for both the sides and have perused the records on file.

The learned counsel for the petitioners contends that the petitioners and others had moved the Additional Director, Consolidation of Holdings under Section 42 of the East Punjab Consolidation of Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 wherein with regard to the lands in dispute the claim of the Gram Panchayat of Village Jaggo was not accepted and the mutation No. 218 in the name of gram panchayat was cancelled with a further direction that the lands in Khewat No. 77, according to the jamabandi for the year 198990, be partitioned among the right holders of the village i.e. present petitioners and others. To support their contention the petitioners have produced annexure P1, which also contains the details of the land. Learned counsel for the petitioner further contends that the Gram Panchayat Jaggo filed C.W.P No. 9162 of 1996 on the file of this Court, for quashing the above said order, but, the same was dismissed by the Division bench of this Court, vide Annexure P2 dated 3.7.1996, against which the Gram Panchayat Jaggo filed S.L.P No. 16450 of 1996 before the Hon''ble Supreme Court which also was dismissed vide annexure P3 dated 2.9.1996.

The learned counsel for the petitioner further contends that some of the Harijans of the village filed C.W.P. No. 10113 of 1996 on the file of this Court against the Gram Panchayat as well as the petitioners, which again was dismissed vide annexure P/4, by a Division Bench of this Court after making the reference to C.W.P No. 9162 of 1996 and the S.L.P. No. 16450 of 1996 referred to above. He also contends that the S.L.P filed by these Harijans to the Hon''ble Supreme Court was also dismissed vide annexure P5 dated 7.5.1997.

According to the learned counsel for the petitioners, then, certain other villagers filed C.W.P. No. 7263 of 1997 challenging the validity of the order of the Consolidation Officer (Annexure P1), and that was also dismissed by a Division Bench of this Court, vide annexure P6 dated 10.2.1998 after making a reference to C.W.P. No. 9162 of 1996, C.W.P. No. 10113 of 1996 and also the S.L.Ps referred to above. Learned counsel for the petitioners also contends that against this order also the S.L.P. No. 7593 of 1998 was filed which was also dismissed vide Annexure P/7 dated 22.2.1999 by the Hon''ble Supreme Court.

The learned counsel for the petitioners further contends that when the Gram Panchayat tried to lease auction the lands in question, on 10.5.1999, the petitioners filed C.W.P. No. 6132 of 1999 on the file of this Court challenging the rights of the Gram Panchayat to auction the lands and also obtained stay of the auction, vide annexure P8 dated 10.5.1999. According to the learned counsel for the petitioners, the Gram Panchayat filed an application (Annexure P9) for vacating the stay, supported by an affidavit of Sarpanch Jagtar Singh wherein it has been specifically admitted in Para No. 3 that the petitioners herein enjoy the usufructs. He, therefore, contends that the possession of the petitionerherein has been admitted.

The learned counsel for the petitioners also contends that when the Gram Panchayat tried to dispossess them with the help of the police, they filed C.W.P. No. 9669 of 1997 and this Court vide annexure P11 dated 25.7.1997 has also stayed dispossession and that the said C.W.P. is also pending.

According to the learned counsel for the petitioners, these documents will show that the Harijans were never in possession, and the allegation that the petitioners trespassed into the land and committed theft of crops, engines and pattas etc. is not at all true, and therefore, the petitioners are entitled to be released on bail. But the learned counsel for the State, on the other hand contends that the Girdawari is in the name of the Harijans, who are in possession for the last 45 years. He also contends that on 14.9.1998, the Hon''ble Supreme Court ordered auction of these lands and the Harijans had taken land in auction in 1998. But the learned counsel for the petitioners contends that the S.L.P. in which the interim order was passed to auction the lands was itself dismissed vide annexure P7 dated 22.2.1999, and, therefore, this will not be in any way go against the petitioners. The learned counsel for the State contends that the order of the Additional Director Consolidation, Annexure P1, was challenged in this Court in C.W.P. No. 3585 of 1999 and that this Court reversed the order on 15.10.1999. The learned counsel for the petitioners on the other hand contends that even in the said C.W.P. in which the order was passed on 15.10.1999, there was a direction to take possession from the petitioners herein which shows that the petitioners are in possession. He further contends that L.P.A. No. 1059 of 1999 has been admitted and interim stay regarding the stay has also been granted.

Pointing out these aspects the learned counsel for the petitioners contends that it will be clear that the petitioners are in possession of the lands and the attempts made by the Gram Panchayat, the Harijans and even some other persons by filing several writ petitions have failed up to the Hon''ble Supreme Court.

These arguments with regard to the possession of the property have been advanced in view of the provisions contained in Section 3(v) and Section 18 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Section 3(v) provides that whoever not being member of Scheduled Caste and Scheduled Tribe wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over the land shall be punishable with imprisonment for a term which shall not be less than six months but it may extend to five years and with fine. Section 18 of the Act provides that the provisions of Section 438 Cr.P.C. shall not apply to any case, involving the arrest of any person on an accusation of having committed an offence under this Act. Pointing out these aspects, learned counsel for the State contends that since the petitioners trespassed in the lands belonging to the Harijans, the petitioners cannot be granted the relief of anticipatory bail, in view of the specific bar contained in Section 18 of the Act. But, the learned counsel for the petitioners, pointing out the several rounds of litigations, which went up the Supreme Court and which ended in their favour, and also the litigation now pending in this Court, wherein their possession has also been protected, and the absence of any documents to show that the Harijans are in possession of the land, contends and that it cannot be stated that the Harijans were in possession or that the petitioners have illegally trespassed or occupied the lands of the Harijans, and on that score bar the petitioners from getting the relief of anticipatory bail.

But the learned counsel for the states that FIR has been registered under Section 3(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and, therefore, the petitioners cannot claim the bail in anticipation of arrest. But the learned counsel for the petitioners, on the other hand contends that litigation is also pending now before this Court and the possession of the petitioners has been protected by an interim order and merely because the petitioners have been falsely implicated under this Act, when actually the several litigations go to show that the petitioners are in possession, the petitioners cannot be denied the relief under Section 438 Cr.P.C. by quoting wrong and inapplicable provisions of law.

Therefore, taking into consideration the arguments put forward but, at the same time without meaning to express any opinion on the merits of this case, I am of the view that the petitioners should be granted the relief of anticipatory bail. Simply because Section 3(v) of the Act has been mentioned in the F.I.R., it cannot be presumed that they cannot be granted relief under Section 438 Cr.P.C., in the circumstances of this case.

In the result, the petition is allowed and the petitioners are, in the event of their arrest on the allegations found in the F.I.R. mentioned in this petition, ordered to be released on bail on their furnishing sufficient surety to the satisfaction of the arresting officer.

If the association of the petitioners is necessary, the investigating officer shall issue notice to them, granting sufficient time to join investigation and on such notice, the petitioners shall join investigation.

However, the petitioner shall abide by the provisions of Section 438(2) Cr.P.C.