IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 161 of 2011. Judgement reserved on 12.9.2011. Date of decision: 28.9.2011. Court on its own motion …..Petitioner. Vs. Tilak Raj & anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the petitioner : For the Respondent : Mr. Anup Chitkara, Advocate with Ms. Divya Sood, Advocate, for respondent No. 1. Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S.Rana, Asstt. Advocate General, for respondent No.2 Kuldip Singh, Judge. This matter has come up on account of suo-motu action taken up by this court. The facts in brief are that respondent No. 1 was arrested on 3.3.2011 in FIR No. 97 of 2010 dated 21.7.2010, under Sections 420, 467, 468, 471, 120-B, 34 IPC, registered at Police Station, Dalhousie. The Sub Divisional Police Officer, Dalhousie submitted an application dated 4.3.2011 in the court of Judicial Magistrate Ist Class, Dalhousie for obtaining police remand of Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… four days on the ground that recovery of pages of the register mentioned in the application was to be made from respondent No.1. It was also to be ascertained, who others were involved in the case alongwith respondent No.1. The respondent No. 1 had not cooperated in the investigation conducted till the filing of the application. 2. The respondent No. 1 through his counsel filed an application dated 4.3.2011 for releasing him on bail in the aforesaid case. The Judicial Magistrate considered the application for remand as well as bail application of respondent No. 1 and granted bail to respondent No. 1 on 4.3.2011. On 18.7.2011 in LPA No. 117 of 2010 a Division Bench of this court observed that Tilak Raj is involved in the offences punishable under Sections 420, 466, 467, 468 and 471 IPC. The Investigating Officer made a prayer for police remand, the learned Judicial Magistrate Ist Class, Dalhousie not only rejected the prayer but enlarged the accused- respondent No. 1 on bail on the same day. The Registrar (Vigilance) will call for a report from the Judicial Magistrate Ist Class regarding refusal to grant police custody and enlargement of the petitioner on bail on the same day when he was produced before the learned Magistrate. The files also will be called for immediately and the same be put up on the administrative side. Thereafter the court took up suo motu action. 3. The reply has been filed by Sub-Divisional Police Officer, Dalhousie. It has been stated in the reply that during investigation, Section 466 IPC was added in the case. It has been stated that whole case is concerned with the appointment of Panchayat Sahayak …3… in Gram Panchayat Sudhli and tampering with the Panchayat record. The forged sheet contains written resolutions of Gram Panchayat, Sudhli dated 28.12.1999 regarding setting aside the selection of Surender Kumar and appointing Tilak Raj as Panchayat Sahayak in Gram Panchayat Sudhli. The accused Tilak Raj was not selected as per Panchayat resolution, prepared a forged joining report dated 1.1.2000 addressed to Block Development Officer, Bhattiyat regarding his joining in Gram Panchayat Sudhli as Panchayat Sahayak and himself authenticated it by writing forged comments and signatures of the then Panchayat Secretary Dharam Singh. On the basis of above mentioned forged joining report, Tilak Raj got training in the Development Block Bhattiyat at Chowari w.e.f. 10.1.2000 to 5.2.2000. On completion of training Tilak Raj started working as Panchayat Sahayak in Gram Panchayat Sudhli. Tilak Raj received salary w.e.f. 1.12.1999. 4. Tilak Raj while working as Panchayat Sahayak in Gram Panchayat, Sudhli during the absence of Panchayat Secretary removed two pages from the proceedings register and utilized one of these pages to prepare the forged document by tearing off the side on which serial number is printed. He wrote in his own handwritings resolutions No. 1 and 2 therein for setting aside the appointment of Surender Singh and appointing himself as Panchayat Sahayak. Tilak Raj also put forged signatures of Panches Kalo Devi, Mangla Devi, Sansar Chand and Amar Singh in the signature column and that of Panchayat Secetary Dharam Singh below the writings of the business …4… transacted. Tilak Raj used forged documents for all future communication with higher officials including in the courts. 5. It has also come during investigation that duly attested photo copy of a letter from the office of Gram Panchayat, Sudhli to Block Development Officer, Bhattiyat signed by Sunita Devi Pradhan regarding joining of Surender Singh in Gram Panchayat, Sudhli was also seized by the police. This letter was received in the office of Block Development Officer, Bhattiyat on 8.3.2000. However, no action was taken by the B.D.O., Bhattiyat and Tilak Raj continued to work as Panchayat Sahayak till today. Tilak Raj fraudulently got the post of Panchayat Sahayak in Gram Panchayat Sudhli by preparing forged documents for the purpose of cheating and received all the benefits of this post since December 1999 by making unlawful loss to the selected candidate Surender Singh. The investigation in the case is complete, the report, under Section 173 Cr.P.C. has been submitted in the court of Judicial Magistrate Ist Class, Dalhousie on 9.8.2011. 6. I have heard the learned counsel for respondent No. 1 as well as learned Additional Advocate General with Assistant Advocate General for respondent No.2. On behalf of respondent No.1, it has been submitted that investigation in the case is complete and even report under Section 173 Cr.P.C. has been filed. The prosecution has not alleged any post bail misconduct against respondent No.1. The learned counsel for respondent No.1 has relied Biman Chatterjee vs. Sanchita Chatterjee and another 2004 (3) SCC 388 on the point that court has to bear in mind what is …5… provided for in Section 437 of the Code at the time of granting bail. Once the bail has been granted under the said provision, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law. The learned counsel for respondent No. 1 has also relied Bhagirathsinh Judeja vs. State of Gujarat 1984(1) SCC 284, wherein it has been held that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. On behalf of respondent No. 2, it has been stated that investigation in the case is complete, report under Section 173 Cr.P.C. has been filed in the court, therefore, in the facts and circumstances of the case, the custody of respondent No. 1 is not required. 7. This court under its suo-motu power is considering the legality and propriety of the order dated 4.3.2011 granting bail to respondent No. 1, therefore, post bail misconduct of respondent No. 1 is not relevant. On 4.3.2011, the application was moved before the Judicial Magistrate for police remand of respondent No. 1 for four days. I have gone through the application dated 4.3.2011 seeking police remand, in that application necessary facts have been disclosed pointing out the seriousness of the case and the allegations imputed to respondent No. 1. 8. The Judicial Magistrate has observed that respondent No. 1 had been fighting to save his appointment before various fora, accused is permanent resident of Tehsil Dalhousie over which the court has territorial jurisdiction. He has roots in the society and as …6… such there is no likelihood of his jumping over the bail. There is no likelihood of respondent No. 1 to influence the prosecution witnesses. The chances of recovery of torn pages of Panchayat register from the accused- respondent No. 1 are very weak as the offence was allegedly committed about ten years ago. The petitioner is ready and willing to join the investigation and to extend his full cooperation to the investigating agency. It has been observed that no useful purpose will be served by keeping the respondent No. 1 in police or judicial custody. The Judicial Magistrate declined police remand and granted bail to respondent No. 1 on 4.3.2011. 9. The Judicial Magistrate in the order dated 4.3.2011, has not adverted to the seriousness of the case nor he has adverted that the investigating agency wanted to elicit from the accused- respondent No. 1 the involvement of any other person in the commission of the offence. The reasons given by the Magistrate for declining the police remand and releasing the respondent No.1 on bail in the peculiar facts and circumstances of the case were not enough to refuse police remand and grant bail to respondent No. 1 on 4.3.2011. The Judicial Magistrate acted in haste and did not consider the larger public interest while refusing police remand and granted bail to respondent No. 1 against whom serious allegations of self appointment by forging documents were projected when the application for police remand of respondent No. 1 was submitted to the Judicial Magistrate. The Judicial Magistrate has not considered that for the last more than ten years the respondent No. 1 had been …7… drawing salary from the public funds against the post for which he was not appointed as per allegations of the investigating agency. 10. It is quite strange that even respondent No. 2 has not assailed the order dated 4.3.2011 before the superior court. The suo- motu action has been taken by this court when it came to the notice of this court that bail has been granted to respondent No. 1 on 4.3.2011 against whom there are serious allegations. The investigating agency has completed the investigation and submitted the report under Section 173 Cr.P.C. The respondent No. 2 at the time of hearing of the petition has not projected the case that custody of respondent No. 1 is required for any reason. In the peculiar facts and circumstances of the case, though the initial order of Judicial Magistrate dated 4.3.2011 refusing police remand and granting bail to respondent No. 1 is not justified but since now respondent No. 2 does not want custody of respondent No. 1, therefore, in view of subsequent events and changed circumstances no purpose will be served by setting aside the order dated 4.3.2011. However, the Judicial Magistrate, Dalhousie is directed to give top priority to the trial and decide the case by fixing the trial on day to day basis and in any case within six months from the date of receipt of copy of this judgement. The parties through their counsel are directed to appear before the Judicial Magistrate, Dalhousie on 20.10.2011. The record of the case alongwith a copy of this judgement be sent for compliance immediately to the court below so as to reach in that court well before the date fixed. September 28, 2011. ( Kuldip Singh ), (Hem) Judge.