BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Thursday, the Twenty Ninth day of September Two Thousand Eleven PRESENT THE HON`BLE MS.JUSTICE R.MALA CRL OP(MD) Nos.12975 & 13131 of 2011 M.THANGAMANI ... PETITIONER/ACCUSED NO.1 IN CRL.OP.12975/11 A.BOOPALAN ..PETITIONER/ACCUSED NO.2 IN CRL.OP.13131/11 Vs STATE, REP. BY SUB INSPECTOR OF POLICE VELLIANAI POLICE STATION, KARUR DISTRICT. CRIME NO.218/2011 ... RESPONDENT/COMPLAINANT IN BOTH THE PETITIONS FOR PETITIONER : M/S. K.K.SENTHILVELAN ASST. SOLICITOR GENERAL OF INDIA IN CRL.OP.12975/11 FOR PETITIONER : M/S.V.JANAKIRAMULU ADVOCATE IN CRL.OP.13131/2011 FOR RESPONDENT : MR.A.RAMAR GOVT. ADVOCATE ( CRL. SIDE) IN BOTH THE PETITIONS PETITION FOR ANTICIPATORY BAIL UNDER SEC.438 CR.P.C. IN BOTH THE PETITIONS ORDER : THE COURT MADE THE FOLLOWING ORDER :- The petitioners in these two petitions have been arrayed as accused Nos.1 and 2, respectively, in Crime No.218 of 2011, registered under Sections 353, 506(i) & (ii) IPC, Section 3(1) of TNPPDL Act and Sections 4(1) and 4(1-A) and 21(1) of the Mines and Minerals (R&D) Act, 1957 on the file of the respondent police and they have filed these petitions seeking anticipatory bail apprehending arrest at the hands of the respondent Police. The petitioner in Crl.O.P.(MD)No.12975 of 2011 is the Project Director, National Highways Authority of India, Karur Project Implementation Unit, and the petitioner in Crl.O.P.(MD)No.13131 of 2011 is the Manager of M/s.Kasheerabad Construction Company, Nadupalayam. The allegation against the petitioners is that they had been illegally quarrying and transporting gravels from Government Proamboke Land and when the same was questioned by the concerned Village Administrative Officer, she was criminally intimidated by them. 2.The learned counsel for the petitioner in Crl.O.P.(MD)No.12975 of 2011 would submit that the petitioner has been arrayed as Accused No.1 and he is the Project Director of Karur Project Implementation Unit, National Highways Authority of India, appointed by the Central Government to carry out the work of laying of Tiruchi-Karur National Highways (NH- 67). It is the main contention of the learned counsel that merely because this petitioner has not attended the District Level Officers Meeting convened by the District Collector of Karur District, even though he sent a detailed letter stating his inability to attend the meeting, a https://hcservices.ecourts.gov.in/hcservices/ false complaint has been foisted against him with the help of the Village Administrative Officer of Uppidamangalam Village alleging that on 23.09.2011 when she went to the Uppidamangalam area, in Survey No.4, which is Uppidamangalam Eri Government Poramboke, the petitioners were standing there and when she questioned their illegal activities, they criminally intimidated her. In the further complaint she has further stated that the petitioners have committed theft of sand and gravels to the tune of Rs.2 crores. Hence she gave a complaint before the Tahsildar, Karur, who in turn referred the matter to the concerned police station and on that basis only the case came to be registered. 3.The learned counsel appearing for the petitioner in Crl.O.P. (MD)No.12975/2011 would submit that in implementation of Social Welfare Scheme of laying Roads for the National Highways Authority of India, the petitioner was appointed as the Project Director for Karur-Tiruchi (NH 67) Road. He has also filed his appointment order. At this juncture, the learned counsel further pointed out that that the petitioner is an employee of Central Government and therefore without sanction from the competent authority, he cannot be prosecuted. 4.His further argument is that laying of National Highways Roads are done not directly by the National Highways Authority but it is being carried out through the Contractor M/s.TK Toll Road Private Limited, who have given sub-contract to M/s.Kasheeraabad Construction Pvt. Ltd., wherein accused No.2 is working as the Manager. Further he places documents to show that the Collector, Karur District, in his proceedings 09.06.2008 has given lease for quarrying earth/gravel to an extent of 2.02.5 hects. of Veerarakiyam Tank Poramboke land in S.F.Nos.1(part), 2 (part) and 3(part) of Uppidamangalam (West) Village to M/s.Ksheeraabad Construction Pvt.Ltd., but wantonly in the complaint it is mentioned as Government Eri Poromboke in Survey No.4. He further submitted that for implementation of National Project, the State Government of Tamil Nadu has given Supporting Agreement on 07.08.2008. He also culled out some portion of the agreement stating that the Statement has given supporting agreement for implementation of the project in proper manner. He further culled out clause (xi) of the said agreement, which reads as under, "xi)the Concessionaire has complied with all Applicable Laws and Applicable Permits, and has not been subject to any fines, penalties, injunctive relief or any other civil or criminal liabilities which in the aggregate have or may have material adverse effect on its financial condition or its ability to perform it obligations and duties under this Agreement." and, therefore, according to the learned counsel, the petitioner is not liable for any criminal prosecution since he was discharging his official duty. Because this petitioner was not attending the District Level Officers Meeting, for victimisation, a false complaint has been foisted against him. 5.He further submitted that after registration of this case on 23.09.2011, the Chief General Manager, RO, Chennai Region, NHAI, has written a letter to the Secretary to Government of Tamil Nadu, Highways and Minor Ports Department, Chennai, requesting him to suitably instruct the District Collector, Karur, not to interfere in the day-to-day functioning of NHAI, which would enable the Project Director, PIU, Karur, to function effectively in implementing the projects of Government of India. Now he apprehends arrest. Hence he has come with this petition https://hcservices.ecourts.gov.in/hcservices/ for anticipatory bail. Therefore, the learned counsel prays for grant of anticipatory bail to the petitioner in Crl.O.P.(MD)No.12975 of 2011. 6.The petitioner in Crl.O.P.(MD)No.13131/2011 is concerned, he is the manager of M/s.Ksheerabad Construction Pvt.Ltd. He has come forward with this petition stating that only on the basis of the lease given by the District Collector Karur, they are taking gravels for laying road and royalty is being paid regularly and they have not done any theft of earth/gravels as alleged in the complaint and a false case has been foisted against him and now he apprehends arrest and seeks anticipatory bail. 7.Refuting the same, the learned Additional Public Prosecutor would submit that the complainant is the Village Administrative Officer of the concerned village and as per the complaint, from the month of March, 2011 to September, 2011, lorries were taking gravels illegally from Survey No.4 on the guise of "On NHAI Duty" and caused loss to the tune of Rs.2 crores to the Government. He would further submit that at the time of occurrence when the de-facto complainant, the Village Administrative Officer, went to the place of occurrence, the petitioners and others were standing there and when she questioned the illegal activities of the petitioners, she was criminally intimated by the accused persons. Further, it is the submission of the learned Additional Government Pleader that when no lease was granted for quarrying in Survey No.4, they have committed theft of earth/gravels by way of scooping gravels in Survey No.4, which was not leased out to them. He would further submit that the investigation is at the initial stage and hence he prayed for dismissal of both the petitions. 8.I have considered the rival submissions made by the counsel on either side. 9.The petitioner in Crl.O.P.(MD)No.12975 of 2011 is the Project Director, National Highways Authority of India, Karur Project Implementation Unit, coming under the Ministry of Shipping and Road Transport Department. He was appointed as Project Director, PIU, Karur. The Project of laying of Tiruchi-Karur National Highways (NH-67) was given to one TK.Toll Road Private Limited and the said agreement finds place in the typed set of papers filed by the petitioner. The said TK.Toll Road Private Limited has given the said construction to M/s.Ksheerabaad Construction Private Limited, wherein accused No.2 (petitioner in Crl.O.P.(MD)No.13131/2011) is working as Manager. The Karur-Trichy National Highways Work is going on from 2008 onwards. The learned counsel appearing for the petitioners would produce the State Government Supporting Agreement. In that, specific immunity has been given to the Officer in-charge for laying the road to the effect that the said Officer is not liable for any criminal act and penalties. 10.The documents filed by the petitioners would clearly prove that the 1st accused was directed to appear before the Weekly District Level Officers Meeting. However, the petitioner in Crl.O.P.(MD) No.12975/2011/accused No.1 has sent a letter stating his inability to attend the meeting. But, after that letter has been sent on 22.09.2011, the present complaint has been given on 23.09.2011. Admittedly, as per the proceedings issued by the Collector of Karur, leasing right for quarrying earth/gravels has been given to M/s.Ksheerabaad Construction Private Limited to quarry in Veerarakiyam Tank Poramboke land in S.F.Nos.1(part), 2(part) and 3(part) of Uppidamangalam (West) Village. But, now the case is related to Survey No.4. Whether quarrying Operations https://hcservices.ecourts.gov.in/hcservices/ were in the above survey numbers or in Survey No.4 is a question to be decided at the time of trial. 11.Admittedly, from 2008 onwards this accused No.2 is doing National Highways Formation Work. They were scooping gravel from this area. But, except the present complaint there is no previous complaint. Even though in the complaint it is stated that from March 2011 to September, 2011, the vehicles carrying boards "on NHAI Duty" were transporting gravels from the place illegally, before 23.09.2011, they have not taken any steps to take action or prefer complaint against them. So it creates suspicion in the mind of the court that because accused No.1 has written a letter to the Collector expressing his inability to attend the Meeting on 23.09.2011, a complaint has been given by the Village Administrative Officer to the Tahsildar, who in turn has forwarded the same to the concerned Police Station. 12.It is further pertinent to point out that the document filed by accused No.1 that after the case has been registered against accused Nos.1 and 2, the Chief General Manager, RO, Chennai Region, National Highways authority of India, which is under the Ministry of Shipping and Road Transport, has sent a letter to the Secretary to the Government of Tamil Nadu, Highways and Minor Ports Department, Chennai-9, on 28.09.2011, wherein it is specifically stated as follows. "7.Under the circumstances, it is requested that the District Collector, Karur, may be suitably instructed not to interfere in the day-to-day functioning of NHAI which will enable the Project Director, PIU, Karur to function effectively in implementing the projects of Government of India. It is also not out of place to mention here that such incidents will put a bad precedent which will affect the functioning of the Officers of NHAI in the State as a whole, besides demoralizing them." 13.The above letter dated 28.09.2011 written by the Chief General Manager, National Highways authority of India, which is under the Ministry of Shipping and Road Transport, speaks volumes. Considering the same, I am of the view that the petitioner in Crl.O.P.(MD)No.12975/2011, was discharging his duty as Project Director of National Highways Authority of India in Project Implementation Unit, Karur. Insofar as the petitioner in Crl.O.P.(MD)no.13131/2011 is concerned, as a contractor, he has been laying the road. They also obtained Supporting agreement from the Government of Tamil Nadu. They have also got proper lease executed by the Collector, Karur, for quarrying earth/gravel and paying royalty amount regularly till 18.09.2011 for taking gravels. 14.Considering the same and further they do not interfere with the investigation and no prejudice would be caused if they are enlarged on anticipatory bail, I am incline to grant anticipatory bails to both the petitioners. 15.Accordingly, the petitioners are ordered to be released on bail, in the event of their arrest or on their appearance before the learned Judicial Magistrate No.II, Karur, on each of them executing a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only), with two sureties each for a like sum, to the satisfaction of the learned Magistrate No.II, Karur. Considering the official status of the petitioners, they shall report for interrogation as and when required. https://hcservices.ecourts.gov.in/hcservices/ The petitioners shall comply with the conditions stipulated under Section 438 Cr.P.C. scrupulously. The petitioners shall appear before the concerned Magistrate within a period of 15 days from the date on which the order copy is made ready, failing which, the petition sfor anticipatory bail shall stand dismissed. sd/- 29/09/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO 1 THE JUDICIAL MAGISTRATE NO.II, KARUR. 2 DO-THRO' THE CHIEF JUDICIAL MAGISTRATE, KARUR. 3 THE SUB INSPECTOR OF POLICE VELLIANAI POLICE STATION, KARUR DISTRICT. 4 THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. +1 CC to M/S. K.K.SENTHILVELAN, ASST. SOLICITOR GENERAL OF INDIA SR.No.34288. +1 CC TO M/S.V.JANAKIRAMULU, ADVOCATE SR.NO.34182. ORDER IN CRL OP(MD) NoS.12975 & 13131 of 2011 Date :29/09/2011 5P/7C RPB : 30.09.2011 https://hcservices.ecourts.gov.in/hcservices/