In the High Court of Punjab and Haryana at Chandigarh ...... (1) Criminal Misc. No.64051 of 2009 and Criminal Misc. No.M-15705 of 2009 ..... Date of decision:16.12.2009 Sukhdev Singh and another .....Petitioners v. State of Punjab .....Respondent .... (2) Criminal Misc. No.M-16007 of 2009 ..... Gurdeep Singh and others .....Petitioners v. State of Punjab .....Respondent .... Present: Mr. Harmandeep S. Sullar, Advocate for the petitioners. Mr. Amarjot Singh Sidhu, Senior Deputy Advocate General, Punjab for the respondent-State. Mr. L.S. Sidhu, Advocate for the complainant. ..... S.S. Saron, J. Cr. Misc. No.64051/2009: Notice of the criminal miscellaneous application to Advocate General, Punjab. Cr.M. No.M-15705/2009 & Cr.M. No.M-16007 of 2009 [2] On the asking of the Court, Mr. Amarjot Singh Sidhu, learned Senior Deputy Advocate General, Punjab accepts notice. The letter dated 23.11.2009 (Annexure-P.4) attached with the criminal miscellaneous application is taken on record subject to just exceptions. The criminal miscellaneous application stands disposed of. Cr.M. No.M-15705/2009 & Cr.M. No.M-16007/2009: Affidavit of Satwant Singh, Deputy Superintendent of Police, Sub Division Budhladha, District Mansa filed in Court today along with Annexure-R.2 are taken on record. This order will dispose of Criminal Misc. No.M-15705 of 2009 filed by Sukhdev Singh and Sukhwinder Singh as also Criminal Misc. No.M-16007 of 2009 filed by Gurdeep Singh, Malkiat Singh and Atma Singh. The petitioners in the respective petitions have sought pre- arrest bail in terms of Section 438 of the Code of Criminal Procedure (`Cr.P.C.' - for short) in case FIR No.26 dated 10.5.2009 registered at Police Station, Budhladha, District Mansa for the offence under Section 379 Indian Penal Code (`IPC' – for short). It is submitted by learned counsel for the petitioners that Sukhwinder Singh alias Gora (petitioner No.2 in Criminal Misc. No.M- 15705 of 2009) has since been arrested and petition qua him has been rendered infructuous. The FIR in the case has been registered on the basis of letter dated 8.5.2009 written by the Block Development and Panchayat Officer, Cr.M. No.M-15705/2009 & Cr.M. No.M-16007 of 2009 [3] Budhladha (`BDPO' – for short) to the District Development and Panchayat Officer, Mansa regarding illegal cutting of trees from the panchayat land. It has been intimated that Sarpanch of Gram Panchayat Kalipur had written to the office of BDPO drawing his attention to the illegal cutting of trees. It is stated that on the panchayat land which was kept for pond and school etc. there were trees which were being taken care of since long. These were used by the villagers to sit in the shade. Sukhdev Singh (petitioner No.1 in Criminal Misc. No.M-15705 of 2009) and Sukhwinder Singh alias Gora (since arrested) and some other persons belonging to the village had cut these trees illegally during elections. It was requested that legal action may be taken against the persons and a letter be written to the Police. The copy of the resolution passed by the Gram Panchayat in this regard was attached. The petitioners had filed an application for grant of pre-arrest bail before the learned Sessions Judge at Mansa and in the order dated 18.5.2009 (Annexure-P.1) passed by the learned Additional Sessions Judge, Mansa, it has been observed that in all 136 trees had been stolen. A tractor trolley and some wooden logs were recovered on 10.5.2009 but on seeing the police party the accused Sukhdev Singh and Sukhwinder Singh managed to escape. The remaining stolen trees are yet to be recovered. In view of the same, the prayer for pre-arrest bail was declined by the learned Additional Sessions Judge, Mansa. Learned counsel for the petitioners has contended that the allegations of cutting trees are absolutely false and are politically motivated. It is submitted that there is a Dera in the land measuring 24 Kanals 18 Marlas comprised in Khasra No.71 of Village Kalipur which is recorded in Cr.M. No.M-15705/2009 & Cr.M. No.M-16007 of 2009 [4] the column of ownership of the revenue records in the name of Gram Panchayat Deh Village Kalipur and under the column of cultivation `Rafai- Aam' is recorded. Strong reliance is placed on the report dated 23.11.2009 (Annexure-P.4) to contend that the Tehsildar Budhladha has observed that on an area of 5 Kanals 10 Marlas in Khasra No.71, Dera had been built and in the remaining 19 Kanals 8 Marlas land there is `Gair Mumkin pond'. Therefore, it is submitted that the trees are under the ownership of the Dera and the Mahant of the Dera has deposed an affidavit dated 19.5.2009 (Annexure-P.3) in which he has deposed that he had got cut a few trees for the development of the Dera and total 136 trees were got cut under his supervision from the Dera. It is deposed that the FIR for the offence under Section 379 IPC is totally wrong and is based on enmity. It is also deposed that Sukhdev Singh and Sukhwinder Singh are the Sevadars of the Dera and they come to the Dera for doing Sewa. They are, it is stated, in no way involved in the cutting of the trees. As regards Gurdeep Singh, Malkiat Singh and Atma Singh (petitioners in Criminal Misc. No.M-16007 of 2009) it is stated by the learned counsel that they are not named in the FIR and they have been implicated due to political vendetta. In response, learned counsel for the State and learned counsel appearing for the Gram Panchayat have contended that the trees that have been cut from the panchayat land are yet to be recovered and even though the petitioners have joined the investigation they are not cooperating in the recovery of the trees. It is submitted that a report has been obtained from the Tehsildar Budhladha, who has stated that there is no land in Village Kalipur which is owned by Siranji Dass Chela Kishan Dass, Village Kalipur Cr.M. No.M-15705/2009 & Cr.M. No.M-16007 of 2009 [5] or the Dera Tahliwala. Therefore, it is submitted that the Dera being not owner of the land it was not entitled to cut the trees from the panchayat land. As such, the petitioners are not entitled to the concession of pre-arrest bail. After giving my thoughtful consideration to the matter, it may be noticed that the prosecution case is that 136 trees from the panchayat land have been cut. The petitioners claim the same to belong to the Dera. For this purpose, strong reliance is placed by the petitioners on the report dated 23.11.2009 (Annexure-P.4). In the said report, it is mentioned by the Tehsildar Budhladha that in Khasra No.71 measuring 24 Kanals 18 Marlas there is a `Gair Mumkin Dera' in an area of 5 Kanals 10 Marlas and the remaining land measuring 19 Kanals 8 Marlas there is a `Gair Mumkin pond'. In fact land comprised in Khasra No.71 measuring 24 Kanals 18 Marlas is recorded as `Rafai Aam' and `Gair Mumkin pond' in the revenue records. There is no mention of the Dera in the revenue records. This aspect is not rebutted by the petitioners on the basis of revenue records. In case there is indeed a Dera in land measuring 5 Kanals 10 Marlas then the said Dera is in all probability in illegal occupation of the panchayat land. Learned counsel for the Gram Panchayat has submitted a copy of Khasra Girdawri for the period of Kharif 2008 to Kharif 2009 in which in respect of land comprised in Khasra No.71 measuring 24 Kanals 18 Kanals ownership is recorded as Gram Panchayat and in the column of cultivation it is recorded as `Rafai Aam'. Copy of the Jamabandi for the year 2005-06 of Village Kalipur has also been filed in which in respect of Khasra No.71 measuring 24 Kanals 18 Marlas Gram Panchayat Deh is recorded as owner Cr.M. No.M-15705/2009 & Cr.M. No.M-16007 of 2009 [6] and in the column of cultivation `Rafai Aam' is recorded. There is no mention in the revenue record with regard to the Dera being there in Khasra No.71measuring 24 Kanals 18 Marlas. Therefore, the report dated 23.11.2009 (Annexure-P.4) referred to by the learned counsel for the petitioners would at the most mean that the Dera is in illegal occupation of the land. Even if it is taken that the Dera is in illegal occupation of the land it is not to cut the trees which are owned and possessed by the Gram Panchayat. A perusal of the affidavit dated 19.5.2009 (Annexure-P.3) that has been filed by the petitioners would show that the same has been deposed by Siranji Dass disciple of Kishan Dass. It is deposed by said Siranji Dass that in Village Kalipur there is one old Dera and he looks after the same and earlier his Guru used to look after the same. There are large number of trees in the Dera out of which he has got cut a few trees for the development of the Dera. A total of 136 trees were got cut under his supervision from the Dera. Therefore, the cutting of the trees is admitted and accepted by Siranji Dass disciple of Kishan Dass in his affidavit dated 19.5.2009 (Annexure- P.3). It is, however, further alleged that these trees were cut from inside the Dera and the panchayat of Village Kalipur or any other institution does not have any connection with the same. However, it is not shown as to how the Dera is in occupation of the land from which the trees have been cut or as to what is the foundation of its possession or title. A further perusal of the said affidavit shows that the complaint given by Sarpanch of Gram Panchayat Village Kalipur regarding the cutting of trees against Sukhdev Singh and Sukhwinder Singh and some other persons was wrong. The said Sukhdev Singh and Sukhwinder Singh, it is stated, are Sevadars of the Dera. The Cr.M. No.M-15705/2009 & Cr.M. No.M-16007 of 2009 [7] circumstances, therefore, show that the 136 trees being cut from the panchayat land is quite evident. According to the learned counsel for the State, recovery of the 136 trees that have been cut has not been effected and, therefore, the custodial interrogation of the petitioners is necessary. As regards, Gurdeep Singh, Malkiat Singh and Atma Singh (petitioners in Criminal Misc. No.M-16007 of 2009) it may be noticed that statement of Harmail Singh, Member, Block Samiti has been recorded under Section 161 Cr.P.C. on 25.5.2009. It has been stated by him that he had seen the said three petitioners filling the pits from where the trees had been removed. Besides, Balam Singh, Sarpanch made a supplementary statement on 25.5.2009 in which he mentioned that the said three petitioners were filling the pits from which the trees had been removed. Therefore, in order to effect recovery of the stolen trees the custodial interrogation of the petitioners would be necessary. It is well known that considerations governing grant of pre- arrest bail under Section 438 Cr.P.C. are materially different from that seeking post-arrest bail or for that matter even seeking suspension of sentence pending appeal before a higher Court. In a case where pre-arrest bail is sought the advantage of custodial interrogation of eliciting more and useful information and material is to be kept in view. Besides, the exercise of power to grant pre-arrest bail is somewhat extra-ordinary in character. In the afore-noticed facts and circumstances, no ground for grant of pre-arrest bail is made out. The criminal miscellaneous petitions are accordingly dismissed except that qua petitioner Sukhwinder Singh alias Gora (petitioner in Criminal Misc. No.M-15705 of 2009) it is dismissed as Cr.M. No.M-15705/2009 & Cr.M. No.M-16007 of 2009 [8] infructuous. Nothing stated herein shall be construed as an expression of opinion on the merits of the case and the the prosecution and the learned trial Court, as the case may be, shall consider the facts and circumstances on the basis of evidence and material as is available before them. December 16, 2009. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No