IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 Bail Appl..No. 5910 of 2010(C) ------------------------ Crime No. 186 of 2010 of Agali Police Station, Palakkad District PETITIONER/ACCUSED NO.4 ----------------------- PREM SHAMEER, S/O.PREMACHANDRAN, KURAMBA VEETTIL HOUSE, BEPPUR, KOZHIKODE DISTRICT. BY ADV. SRI.BABU S. NAIR SMT.M.T.SHEEBA SRI.P.A.RAJESH SRI.K.RAKESH RESPONDENT(S): STATE -------------------- THE STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, AGALI POLICE STATION-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI. C.K. SURESH BY D.G.P. SRI.K.K.RAVEENDRANATH, THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01/11/2010, ALONG WITH BA NO. 5914 OF 2010 AND OTHER CONNECTED CASES THE COURT ON 01/11/2010 PASSED THE FOLLOWING: V. RAMKUMAR, J. ......................................... Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010 .......................................... Dated: 8th November, 2010 ORDER In these petitions filed under Section 438 Cr.P.C. the petitioners who claim to be A1, A2 and A4 to A9 in Crime No. 186 of 2010 of Agali Police Station registered for offences punishable under Sections 464, 465, 468, 420 and 120 B read with Sec. 34 I.P.C. and Sec. 3 (1) (iv) and (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 seek anticipatory bail. The petitioner in B.A. 5910 of 2009 is A4, the petitioner in B.A. 5914/2010 is A1, the petitioners in B.A. 6594 of 2010 claim to be A5 to A9 and the petitioner in B.A. 6673 of 2010 is A2. According to the petitioners, the names of the various persons arrayed as accused persons in the above crime, so far, are as follows:- A1 - Binu S. Nair of Agali in Palakkad District A2 - Joy K.S. of Sholayur Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :2:- A3 - Sankaranarayanan @ Periya Thambi of Palakkad District A4 - Prem Shameer of Beppur, Kozhikode A5 - Chandrasekhara Panicker of Kottayam District A6 - Linish T.M. of Kottayam District A7 - T.V. Somasekharan Nair of Agali A8 - Bindu S. Nair of Agali A9 - Rathi Devi of Kottayam District 2. I heard Advocate Sri. Babu S. Nair, the learned counsel appearing for the petitioners in B.A. Nos. 5910, 5914 and 6594 of 2010, Senior Advocate Sri. A.M. Shafeeque appearing for the petitioner in B.A. 6673 of 2010 and Adv. Sri. K.K. Raveendranath, the learned Director General of Prosecution. I also perused the case diary files. CONTENTIONS OF THE ACCUSED 3. Senior Adv. Sri.A.M. Shafeeque and Adv. Sri. Babu S. Nair made the following submissions before me in support of Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :3:- the applications:- M/s.Suzlon Energy Limited is a Public Limited Company having operations in 21 countries around the world. The Company is engaged in manufacturing Wind Turbine Generators for generating electricity from wind energy. M/s. Sarjan Realities Limited is an associate company of Suzlon Energy Limited and having its Corporate Office at Pune in Maharashtra and engaged in identifying and purchasing suitable lands for the purpose of erecting installing Wind Turbine Generators for establishing wind mills. Considering the high velocity and potential of the winds, certain villages such as Kottathara, Sholayur and Agali Villages of Mannarkad Taluk of Palakkad District were found to be ideally suited for establishing wind mills. Those areas fall under B category depending on the availability of strong winds round the year . The said area is comprised of barren hills and are Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :4:- not at all suitable for any agricultural operations or construction activities. After identifying the area which was found congenial for establishing Wind Turbine Generators, Suzlon Energy Limited started purchasing lands in Kottathara, Sholayur and Agali Villages through its associate Companies. The first accused (Binu S. Nair) hailing from Agali is a land purchase consultant of Suzlon Energy Limited. A2 to A9 are persons who sold properties to Sarjan Realities Limited, Pune so as to enable Suzlon Energy Limited to establish wind mills in that area. Between January 2006 and May 2009 the Company purchased a total extent of 645.65 acres of different parcels of land in Kottathara, Agali and Sholayur Villages from various persons including A2 to A9 as per 155 sale deeds executed and registered at the Sub Registry Office, Agali . None of the assignors of the company is a tribal. Their vendors are also not tribals. The controversy was started Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :5:- when newspaper reports appeared stating that the lands belonging to the tribals at Attappady were purchased by the Company dispossessing the triabls from their holdings. Seeing the media reports some of the local people started agitating against the Company. This was after more than three years of the company installing Wind Turbine Generators in various locations. On 30-6-2010, there was a march organized by some of the local people and political parties . There was an attempt to trespass into the properties of the Company and to cause damage to the wind mills established therein by claiming that the wind mills were established on the properties of tribals. At that juncture, a company by name Asian Star Company Limited, Bombay which purchased the wind mills approached this court for police protection by filing W.P. (C) No. 23055/2010. As per the interim order passed in the said Writ Petition this Court was pleased to pass an interim Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :6:- order of police protection. Subsequently, a complaint has been sent by the District Collector, Palakkad to the Superintendent of Police, Palakkad, to the effect that pursuant to a criminal conspiracy hatched by the accused persons, Scheduled tribes by name Ponni, Kakki, Selvi and others have been dispossessed from their holdings in Sy. No. 1275 of Kottathara Village by creating documents and transferring those properties to M/s. Sarjan Realities Limited. The said complaint was forwarded to the Agali Police Station resulting in the said police registering the above crime. The entire allegations in the complaint are false, incorrect and politically motivated foreseeing the elections to the local self Government Institutions. It is now conceded that Selvi referred to above is not a tribal. On 7-5-2010 the ITDP Project Officer, Attappadi reported to the District Collector, Palakkad that more than 150 acres of land possessed by tribals in Kottathara Village of Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :7:- Mannarkkad Taluk had come into the possession of M/s. Sarjan Realities Limited. Thereupon, the R.D.O. Ottappalam was directed to conduct a detailed enquiry . Accordingly, an enquiry by the R.D.O. under Sec. 7 (3) of The Kerala Restriction on Transfer by and Restoration of Lands to Scheduled Tribes Act, 1999 ("Act 12 of 1999" for short ) is pending . The District Collector wrote to the Government to appoint a High Power Committee to conduct a detailed enquiry. As per G.O. (Rt) No. 3775/10/Revenue dated 2-8-2010 the Government constituted a High Power Committee with the Chief Secretary as the Chairman. The Committee after perusing the earlier documents etc. submitted a report in which the following matters were reported:- i) In 2005 - 2006 the Attappadi Hill Area Development Society ("AHADS "for short) conducted development activities in the land of five tribals by name Maruthan, S/o. Sivan, Siddhan, S/o. Chellan, Kakki, S/o. Chellan, Maruthan, S/o. Subba Rao Mooppan and Rengan Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :8:- S/o. Kandhan for a total area of 25 acres in Survey No. 1275 of Kottathara Village. ii) In the year 1980 river valley bunds were constructed in 32.2512 hectares of land in Sy. No. 1275 of Kottathara Village and in the possession of tribals. iii) After 1980 the only document registered in the local Sub Registry Office was in respect of 4 acres of land comprised in Survey 1275 and possessed by a tribal by name Nanjan. iv) During the period 2006-2007 a Village Officer of Kottathara by name Ushakumari had accepted land tax from persons having no title or possession and had issued possession certificate to those persons. The said Village Officer has been placed under suspension. In the enquiry conducted by the RDO it is reported that certain tribals were paid amounts by A1 to A3 either for planting electric post or erecting Wind Turbines and documents were executed in favour of A1 to A4 who had taken away their tax receipts. The report dated 18-8- 2010 by the District Collector to the Addl. Chief Secretary states that soil conservation conducted by the Soil Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :9:- Survey Department upto 24-1-1986 shows that 57 tribals had 32.2521 hectares of land , in 1981-82 22 tribals had remitted tax for 79 acres of land and from the year 1994- 95 onwards land tax was paid by tribals for several years. Survey 1275 takes in a total extent of 73.8275 hectares corresponding to 182 acres. (Vide report submitted by Survey Director to the District Collector, Palakkad and produced before this Court in W.P. (C) 23055). In the said report the jenmi with regard to Survey 1275 is shown as Mannarkkad Moopil Nair. In the report dated 24-7-2010 of the District Collector, Palakkad given to the Private Secretary to the Revenue Minister it is conceded that none of the 26 documents examined was executed by any Adivasi or contrary to Act 12 of 1999. There are about 41 Wind Turbine Generators erected in the properties purchased by the Company. All the generators were installed in the year Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :10:- 2007 and no tribal has complained of any dispossession till 2010. The tax receipts relied on by the Government were issued by the Soil Conservation Department while giving subsidies to the tribals . Going by A and B Register pertaining to the lands in question no part of Sy. No. 1275 of Kottathara Village is held by tribals . Making of a false document within the meaning of Sec. 464 I.P.C. is a necessary ingredient of the offence of "forgery" under Sec. 463 I.P.C. punishable under Sec. 465 I.P.C. and of the offence of using a forged document as genuine punishable under Sec. 471 I.P.C. Section 464 I.P.C. will be attracted only if properties belonging to tribals are dishonestly conveyed by others holding out a representation that they have the authority to convey the properties of tribals. In other words, if a property actually belonging to 'B' is claimed by 'A' as belonging to himself and on the basis of such false claim Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :11:- if 'A' transfers the property to 'C' , it does not amount to making a false document within the meaning of Sec. 464 I.P.C. (Vide Mohammed Ibrahim and others v. State of Bihar and Another - (2009) 8 SCC 751, Devendra and Others v. State of Uttar Pradesh and Another - (2009) 7 SCC 495, Gulab Singh v. State of Punjab - 1984 (2) Crimes 869 and AIR 1965 Rajasthan 9 . The State has to prima facie show that the lands comprised in Sy. No. 1275 wholly or in part belonged to tribals. A & B Register does not show that any portion of Sy. No. 1275 was held by tribals. If land possessed, enjoyed and owned by a Scheduled Tribe is transferred by him to a person other than a member of the Scheduled Tribe without the previous written consent of the competent authority after 24-1-1986 , then it amounts to an offence punishable under Sec. 12 of Act 12 of 1999 and can be punished with rigorous imprisonment for a term up to one Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :12:- year or with fine up to ` 5,000/-. Cognizance of the said offence under Act 12 of 1999 can be taken by Magistrate only on a complaint by the Revenue Divisional Officer (RDO) as provided under Sec. 13 (2) of the said Act. With regard to alienation of properties held, possessed or enjoyed by tribals, Act 12 of 1999 is a special law which prevails over the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("Act 33 of 1989" for short). (Vide The Life Insurance Corporation of India v. D.J. Bahadur and others - AIR 1980 SC 2181 , Gobind Sugar Mills Ltd. v. State of Bihar and Others - AIR 1999 SC 3097, The Belsund Sugar Co.Ltd. v. The State of Bihar and Others - AIR 1999 SC 3125 and Allahabad Bank v. Canara Bank and Another - AIR 2000 SC 1535). Apart from the fact that no offence under Act 12 of 1999 is incorporated in the case so far, the offences under Sec. 3 (1) (iv) and Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :13:- (v) of Act 33 of 1989 cannot have any application since the latter Act has to yield to the former. Even assuming that the petitioners could be accused of having committed the offences under Act 33 of 1989, those offences will be prima facie attracted only if a tribal is wrongfully dispossessed by a non-tribal or the property of a tribal is wrongfully occupied by a non-tribal. The question as to whether any portion of the properties purchased by the Company was possessed or enjoyed by a tribal can be decided only after the statutory enquiry by the RDO under Section 7 (3) of Act 12 of 1999 is complete. The report dated 24-7-2010 of the District Collector to the Private Secretary of the Revenue Minister says that no tribal has been dispossessed in any of the transfers involving Sy. Nos. 1273 and 1275. A2 had only arranged sale of properties to the company as a land broker. A3 to A9 had only sold parcels of their land Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :14:- to the company. None of them is a scheduled tribe. The village authorities, the R.D.O. and the District Collector are all in doubt as to whether any of the properties purchased by the company was possessed by tribals. In the additional documents produced in B.A. No. 6673 of 2010 it is clearly discernible that the revenue records do not show that Adivasies have separate possession of any land . If so, there is no question of any wrongful dispossession of any tribal or wrongful occupation of the land possessed by any tribal within the meaning of Sec. 3 (1) (iv) and (v) of Act 33 of 1989. If possession was obtained with their consent and paying them consideration, there cannot be any wrongful dispossession. When even the Revenue Department is unable to establish clarity of title or possession, the police cannot come out with an accusation that the petitioners have wrongfully dispossessed any tribal. Even Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :15:- assuming that the effect of Section 18 of Act 33 of 1989 is to repeal Sec. 438 Cr.P.C., in Lal Kamlendra Pratap Singh v. State of Uttar Pradesh and Others - (2009) 4 SCC 437 the Apex Court noticing that Sec. 438 Cr.P.C. was repealed in Allahabad, upheld the Full Bench decision of the Allahabad High Court that in such cases bail and interim bail can be granted by the Court. Mere accusation of having committed an offence under Act 33 of 1989 is not enough for attracting Sec. 18 thereof so as to take away the power of the Sessions Court and High Court to grant anticipatory bail. Where the offences are not prima facie made out, notwithstanding the interdict under Sec. 18 of Act 33 of 1989 the Sessions Court or the High Court has the power to grant anticipatory bail . (Vide Sri. N.B. Gungarakoppa and Others v. State of Karnataka - 2002 Crl.L.J. 3311, Shyam Singh & Anothers v. State of M.P. - 2006 (2) Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :16:- Crimes 161 , Om Prakash Sharma v. Union Territory Chandigarh - 2001 (4) Crimes 208, Ramaswamy & Anr. v. State by Inspector of Police - 1997 (2)( Crimes 684, Bhupendra Das Vaishnava and Another v. State of Chhattisgarh - 2006 (3) Crimes 590, K. Mallesham v. State of A.P. - 1999 Crl.L.J. 324 and Ramesh Prasad Bhanja and others v. State of Orissa - 1996 Crl.L.J. 2743). When the State has not prima facie shown that any portion of the properties purchased by the company was occupied by tribals and a statutory enquiry by the R.D.O. is afoot, this is a fit case where this Court can grant anticipatory bail to the petitioners. ARGUMENTS OF THE STATE PROSECUTOR 4. Adv. Sri.K.K. Raveendranath, the learned Director General of Prosecutions and Public Prosecutor of the High Court made the following submissions before me in support of his opposition to the bail applications:- Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :17:- The petitioners in B.A. 6594 of 2010 have not been arrayed as accused in this case so far. Prior to 1986 there were only three villages in Mannarkkad Taluk of Palakkad District. Those three villages were Agali, Puthur and Sholayur. Agali village was bifurcated into Agali and Kallamala Villages. Puthur Village was bifurcated into Puthur and Padavayal Villages. In the year 1986 Sholayur Village was bifurcated into Sholayur and Kottathara Villages. Tribals in those areas who were cultivating tenants under the Mannarkkad Moopil Nair were assigned on registry their holdings which had vested in the State of Kerala under Sec. 72 of the Kerala Land Reforms Act, 1964, (the "KLR Act" for short). On 22-08-1973 the Land Tribunal, Pudur issued a certificate of purchase under Sec. 72 (k) of the KLR Act in favour of a tribal by name Karuppan, S/o. Pazhani with regard to 3.3040 hectares of land comprised in Sy. No. 1273/Part of Sholayur Village. Likewise, as per certificate of purchase dated 25-5-1975 of the Land Tribunal, Puthur 2.1569 hectares of land comprised in Sy.1275/Part of Sholayur Village was assigned to a tribal, as per certificate of purchase dated 14-08-1973 of Land Tribunal, Puthur. 3.50 hectares of land comprised in Sy. No. 1275/Part were assigned to one Somayya Naidu. As per certificate dated 9-4-1975 of Land Tribunal, Puthur , 5 acres of land Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :18:- comprised in Sy. 524/part of Sholayur Village were assigned to one Rengan, a tribal. As per certificate of purchase dated 29-01-1979 issued by the Land Tribunal, Agali. 5 acres of land comprised in Sy. No 524/Part of Sholayur Village were assigned to one Masi , a tribal. As per certificate of purchase dated 30-6-1976 of Land Tribunal, Puthur 0.08 hectares of land in Sy. 679/3 Part of Sholayur Village were assigned in favour of one Kali, a tribal. But the A & B Register does not show the above parcels of land in the direct possession of the aforementioned cultivating tenants but shows that the aforesaid lands are in the direct possession of the jenmy, Mannarkkad Mooppil Nair. This will show that the entries in the A & B Register (which itself is not final) cannot be taken as reflecting the true state of affairs. The report dated 18-8-2010 of the District Collector, Palakkad addressed to the Addl. Chief Secretary, Revenue shows that during 1981-82 33 tax payers holding lands in Sy Nos. 1273 and 1275 of Kottathara Village were Adivasies. The said report further shows that the Survey Report of Tribal Lands and Collection of Data of the Tribal, ITDP, Attappadi, Volume - II published in the year 1982 shows that Adivasies were keeping possession of Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :19:- land in the area in question. The report further shows that in the records pertaining to soil conservation conducted by the Soil Survey Department, during the period 1981- 82 33 Adivasies had remitted tax in respect of 111.30 acres of land comprised in Sy. Nos. 1275 and 1273. The report of the Collector also shows that for the period from 1994-95 till 2006 - 2007 land tax is seen remitted in many of the years in the names of Adivasies. Almost all the persons stated to be in possession of the lands covered by document Nos. 1019/06, 1091/06, 454/07, 1042/07, 1044/07 and 1048/07 are Adivasies most of whom are unable to identify their holdings with reference to specific boundaries. All the vendors of the company and their assisgnors trace their title to oral leases granted by Mannarkkad Mooppil Nair. Thathunni Mooppil Nair who was the Mooppil Sthani died on 3-1- 1960. The estate of Mooppil Nair is administered by the Advocate Receiver appointed by the Sub Court, Ottappalam. In the partition suit filed as O.S. 65 of 1956 in the tarvad of Mooppil Nair, a member of the tarvad by name K.M. Saseendran Unni has submitted a petition dated 11-08-2010 to the District Collector to the effect that all the lease deeds executed prior to the death of Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :20:- Mooppil Nair are null and void. The present Receiver of the estate is Advocate K.B. Mohan Kumar. False documents have been created to the effect that the properties conveyed thereunder are comprised in Sy. Nos. 1275 and 1273. Possession certificates and tax receipts have been issued from the Village Office without examining any of the prior documents and the Village Officer who was in-charge has been placed under suspension. There is a land mafia operating in that area for creating documents and for dispossessing persons in possession of properties. Certain individuals have created documents styling themselves as the power-of-attorney holders of several persons belonging to Tamil Nadu and in all those documents the attesting witnesses are common. There is intrinsic evidence from the documents executed in favour of the company to show that properties of tribals have been taken over by the Company. As per document No. 648 of 2007 , Sankara Narayanan (A3) claims to have sold two acres of land to Prem Shameer (A4) who in turn claims to have sold the said land to Sarjan Realities as per document No. 1043 of 2007. The property shown as the southern boundary of this property in document No. 648 of 2007 is the Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :21:- property of Savithri, (non-tribe). But the said southern property of Savithri comprised in Sy. 1275/Part was sold to Prem Shameer as per document No. 640 of 2007. In that document the northern boundary is shown as the property of Chathan who is a tribal. This shows that the property conveyed under document No. 648 of 2007 as purportedly belonging to Sankaranarayanan is really the property belonging to Chathan, S/o. Mattukkaran, a tribal. Likewise, the property conveyed under document No. 640 as the property of Savithri was really the property of Kandhan, a tribal which fact is confirmed by document No. 641 of 2007 pertaining to the southern property of four acres comprised in 1275/part in which the northern boundary is shown as the property of Rengan, s/o. Kandhan. Similarly, the western boundary of the property conveyed under document No. 640 of 2007 is again the property of Kanhdan who is a scheduled tribe. The southern boundary of the property covered by document No. 640 of 2007 is that of Selvi. But as a matter of fact it was the property of Rengan, a scheduled tribe. The four acres of land which Prem Shameer (A4) purchased from Savithri on 25-4-2007 as per document No. 640 of 2007 was for a consideration of ` 1,00,000/-. But within three Bail Application Nos. 5910, 5914, 6594 and 6673 of 2010- :22:- months A4 sold the said property to Sarjan Realities Limited for ` 6,00,000/-. Same is