Criminal Misc. No. M 35134 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M 35134 of 2009 (O&M) Date of decision: 6-4-2010 Dharam Singh and others .........Petitioners Vs State of Punjab .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Shri Randeep Singh, Advocate, for the petitioners Shri K.D.Sachdeva, Additional Advocate General, Punjab HARBANS LAL, J. This petition has been moved by Dharam Singh, Labh Singh, Punjab Singh and Gulab Singh under Section 438 of Cr.P.C. seeking their anticipatory bail in F.I.R. No. 363 dated 24.10.2009 under Sections 420, 120-B read with Section 13-A of Punjab Village Common Lands (Regulation) Act, 1961, registered at Police Station Samana, District Patiala. The facts in brief are that Civil Writ Petition No. 4566 of 2007 was allowed setting aside the impugned orders dated 22.12.1994 and 2.5.1996. The Senior Superintendent of Police, Patiala as well as Deputy Commissioner, Patiala were directed to inquire into the matter and take appropriate civil as well as criminal action against all those responsible for committing the fraud with the Gram Panchayat. During investigation, it was revealed that Ajmer Singh the then Sarpanch had not pursued the case of the Gram Panchayat deliberately in a proper manner with intention to transfer land measuring 204 Kanals 7 Marlas of Gram Panchayat, Bathoi Khurd in favour of his brother Mehar Singh, his nephews Dharam Singh, Labh Criminal Misc. No. M 35134 of 2009 (O&M) 2 Singh, Panjab Singh and Gulab Singh (referring to the petitioners) and intentionally filed the appeal after expiry of limitation. Besides this, Ajmer Singh had withdrawn the Civil Writ Petition filed before this Court and then he did not file fresh petition with intention to give benefit to his brother, nephews and sons. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The learned counsel for the petitioners submitted with full force that as per version in the F.I.R. no criminal liability is made out against the petitioners as the case is of purely of civil nature. He further pressed into service that the question of title was decided in favour of the petitioners in the year 1994. The present F.I.R. has been lodged after an inordinate delay of 15 years. The petitioners are in possession of the disputed land prior to 26.1.1950. To overcome these submissions, the learned State counsel maintained that initially Ajmer Singh transferred the land in dispute in favour of his nephews i.e. the petitioners and others. The petitioners further sold the same. Thus they have left no stone unturned in grabbing the land of the Gram Panchayat. I have well considered the rival contentions. There is no gainsaying the fact that the disputed land was ownership of the Gram Panchayat. Ajmer Singh the then Sarpanch alienated the land in favour of the petitioners and others relations. A glance through the the sale deeds dated 20.2.2007 would reveal that the petitioners have disposed of the land despite knowing that the same is property of the Gram Panchayat. It clearly indicates that Ajmer Singh by making misuse of his Criminal Misc. No. M 35134 of 2009 (O&M) 3 office benefitted the petitioners and other relatives by transferring the land in their favour. It gives an inkling that the petitioners, Ajmer Singh and others were in hand in glove with each other. To my mind, the extra ordinary jurisdiction under Section 438 of Cr.P.C. which is invoked in exceptional circumstances should not be exercised in their favour. Their custodial interrogation is required. In re: State Represented By the C.B.I v. Anil Sharma, 1997(4) Recent Criminal Reports (Criminal) 268 (SC), it has been held as under:- “We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as Criminal Misc. No. M 35134 of 2009 (O&M) 4 offenders.” The Court considering an application under Section 438 of Cr.P.C, must strike a balance between the rights of an accused and the duty and obligation conferred upon an investigating agency. Thus, taking into consideration the entirety of facts and circumstances, I am of the considered opinion that this petition merits dismissal. Accordingly, this petition stands dismissed. Since the main petition has been decided, all pending Criminal Miscellaneous, if any, also stand disposed of. (HARBANS LAL) JUDGE April 6, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No