Criminal Misc. No. M-26409 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-26409 of 2009 (O&M) Date of decision: October 06, 2009 Devinder Singh Babala .. Petitioner v. U.T., Chandigarh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. R. S. Ghai, Senior Advocate with Mr. N. K. Nanda and Mr. Sandeep Gehlawat, Advocates for the petitioner. Mr. Anupam Gupta, Senior Standing Counsel for Union Territory, Chandigarh. Mr. Amar Vivek, Advocate for the complainant. .. Rajesh Bindal J. The petitioner is accused in FIR No. 197 dated 19.8.2009, registered against him under Sections 420, 465, 468, 471, 120-B IPC at Police Station, Sector 26, Chandigarh. The prayer is for grant of anticipatory bail. The petitioner is before this Court after his anticipatory bail application has been rejected by the learned court below. Briefly, the facts are that the FIR was registered against the petitioner and other accused on the basis of a complaint filed Suraj Parkash Ahuja in the form of an affidavit. After preliminary investigation, the FIR was registered on 19.8.2009. The petitioner herein is the then Chairman of the Market Committee, Chandigarh, under whose signatures certain allotments of place for sale of vegetables in the newly constructed shed were made with the allegation of fabrication and tampering of record. Learned counsel for the petitioner submitted that case against the petitioner is politically motivated. The object is to ruin his political career. An open shed was existing in Subzi Mandi, which collapsed on 10.6.2007. It was reconstructed in March, 2009. A Committee was constituted, which included the petitioner; Joint Secretary of the Marketing Board, who is also Sub Divisional Magistrate (South), Chandigarh and one another elected member, who is Director Criminal Misc. No. M-26409 of 2009 [2] of the Market Committee. The allotment list was duly signed by all the members on 24.7.2009 and it is not the petitioner only, who made the allotments. The allotments were made on the principle of one shop per person and the complainant has been allotted shop No. 9 in the newly constructed shed and shop No. 10 has been allotted to another claimant. Immediately thereafter, the complainant made a representation to the Deputy Commissioner/ Secretary, Marketing Board, who vide his order dated 29.7.2009 finding merit in the claim made by the complainant, directed for addition of his name at Sr. No. 25-A of the list for shop No. 10. However, his claim was finally rejected vide order dated 14.9.2009, thereby holding that the allotments already made do not call for any interference, as there is no illegality or irregularity. The argument is that it is a case of allotment of place for carrying on business in the open shed to the licensees in Subzi Mandi and in case there is any illegality or irregularity in the process of allotment, the aggrieved person has the remedy of appeal before the Marketing Board and in the process, the grievance of any person can be redressed. There were other members of the Allotment Committee as well. No one had any objection to the list of allottees. In the enquiry, which was got conducted through Additional Deputy Commissioner, only the petitioner has been found to be guilty and not the other two members of the Committee. The reason is only to harm the petitioner politically. Immediately after the allotments, the petitioner had resigned from the post of Chairman of the Market Committee and the case in hand does not call for custodial interrogation as the entire record of the case is in the custody of the Market Committee. He further submitted that when the entire issue has already been examined by the Secretary, Marketing Board and allotments have been upheld, no case against the petitioner is made out. Learned counsel for Union Territory submitted that there is no question of political victimisation of the petitioner in the present case, as is sought to be projected. The initiation of process, which led to the registration of FIR against the petitioner and others, is not at the instance of any person, who is claimed to be inimical the petitioner. Rather, it is the process which was initiated on the basis of complaint made by Suraj Parkash Ahuja in the form of an affidavit much before the allotments. Finding substance in the statement made in the complaint, the matter regarding allotments of shops in the newly constructed shed was got enquired into through Additional Deputy Commissioner who, in his report, clearly found that there was interpolation in the record at the asking of the petitioner. Seeking legal opinion thereafter, the FIR in question was registered. Criminal Misc. No. M-26409 of 2009 [3] The complainant in the present case is not the only person who is aggrieved against the illegal and malafide action of the petitioner, rather, there are many others. As immediately after the allotments, which were made in hurried manner, there was hue and cry in Subzi Mandi and the petitioner had to resign from the post of Chairmanship. It is a case where the petitioner, who was in power and was holding the post of Chairman of the Market Committee being an elected public representative, had misused his authority. There are three types of persons – some are initially businessmen but enter into politics at a later stage; some are initially in politics but engage themselves in some business activities though not connected with politics, but there are certain people who turn politics into a business and the petitioner belongs to that category. As far as the affairs of the Market Committee, especially Subzi Mandi is concerned, the present case in hand is a tip of an ice berg and the matter requires detailed investigation. Custodial interrogation in such type of cases is certainly qualitatively better. He further submitted that during the process of enquiry by the Additional Deputy Commissioner, number of persons, who were aggrieved, had got their statements recorded under their signatures. Those are not merely the kind of statements made by the persons before the police officer under Section 161 Cr.P.C. Not only this, some of them had got their statements recorded even before the Magistrate under Section 164 Cr.P.C., which lent credibility to their consistent stand. The mere fact that the petitioner is avoiding his arrest shows his guilty mind. Learned counsel for the complainant, present in Court, was also heard. In addition to the submissions made by learned counsel for Union Territory, it was submitted that there were certain specified persons who were carrying on business in the open shed which collapsed on 10.6.2007. The cost of shed was borne by the initial allottees and the Chandigarh Administration in 50:50. As a matter of policy, it was decided that after re-construction, same persons will be allotted the place who were occupying it prior to its collapse. It is a fact on record that prior to the date when the shed collapsed, 59 persons were allotted the place to carry on the business in the shed, however, by interpolation for extraneous considerations, the allotments in newly constructed shed were made to 69 persons by ignoring rightful claim of certain persons and adding certain ineligible persons. As the complainant had been given feelers to succumb to the pressure of the petitioner to partially surrender his rightful claim for allotment in the newly constructed shed, prior to the date of allotment he had made a complaint to the Senior Superintendent of Police on 25.6.2009. The complainant was asked Criminal Misc. No. M-26409 of 2009 [4] by the Inspector General of Police to support the complaint with an affidavit considering the fact that the allegations were against an elected representative. The affidavit was filed on 2.7.2009. It was prior to the allotments. The facts stated by the complainant in the complaint made to the police were found to be true when the allotments were made on 24.7.2009 in surreptitious manner. In fact, none of the allottee was issued any allotment letter. Haphazardly late in the evening, the allottees were handed over the possession to complete the process. As against 59 licensees, who were originally occupying the place in the shed, 69 persons were accommodated. On the complaint, the Deputy Commissioner marked the enquiry regarding allotments to the Additional Deputy Commissioner on 31.7.2009, who after going through the entire matter and recording the statements of 10 persons came to the conclusion that there was bungling in the allotment and action was recommended against various persons including the petitioner vide his enquiry report dated 12.8.2009. The submission is that it is a clear case of highhandedness and misuse of authority vested in a public representative, where he got the records manipulated to accommodate certain persons of space in the newly constructed shed who were not entitled to the same and certain eligible persons were left out, for extraneous considerations. The issue as regards to the entitlement and tampering of record at the behest of the petitioner was also referred to by stating that admittedly as per record of the Market Committee, the petitioner was in possession of shops No. 9 and 10 in the shed which collapsed. In the entire correspondence with the Market Committee, it was mentioned as such. However, subsequent to the complainant's filing C.W.P. No. 7201 of 2009 in this Court highlighting his claim for allotment of the shops in the shed as per his entitlement, the record was sought to be tampered in the Market Committee to show that the complainant was only occupying one shop No. `9' and not shops No. `9' and `10'. Heard learned counsel for the parties and perused the paper book. The facts, which are not in dispute are that an open shed was existing in the Subzi Mandi on which certain licensees, who were 59 in number, had been permitted to carry on business long back. The shed, which was being used for open auction of the vegetables, collapsed on 10.6.2007. These were the persons who were having shops in the Subzi Mandi. In place thereof, new shed was constructed and completed in March, 2009. The dispute is regarding allotment of place for auction of vegetables in the newly constructed shed in place of collapsed one. It is also not in dispute that in the allotments made, 69 licensees have been accommodated. A perusal of the report of the enquiry conducted by the Additional Criminal Misc. No. M-26409 of 2009 [5] Deputy Commissioner shows that there were 16 licensees, who were accommodated in the list of allottees of the shops in the newly constructed shed who were not carrying on business in the shed when it collapsed. As against this, there were 6 licensees, who though were carrying business in the shed when collapsed, but not added in the list of allottees. It has been mentioned in the enquiry report that statements of Ms. Prerna Puri, IAS, Sub Divisional Magistrate (South), Union Territory, Chandigarh and Joint Secretary of the Marketing Board; Mr. G. R. Pillai, Assistant Secretary, Market Committee; Jitender Singh, Auction Recorder (on contract); Mr. Ashok Sood; Mr. Digvijay Kapoor; Mr. Ashok Kumar; Mr. Rakesh Sahni; Mr. Suraj Parkash Ahuja (complainant); Mr. Devinder Singh Babla (petitioner) and Jeet Singh Lamba were recorded by the Enquiry Officer. A perusal of the police file shows that all the aforesaid persons had got their statements recorded before the Enquiry Officer which were duly signed by them. Another fact which deserves mention here itself is that statements of some of the persons, like the complainant; Digvijay Kapoor, Ex-President of the Subzi Mandi, Aarthia Association; Ashok Sood etc. were recorded under Section 164 Cr.P.C., as was stated by learned counsel for the Union Territory in Court. It was submitted that those have been kept in sealed cover by the learned Magistrate. The petitioner in his statement got recorded before the Enquiry Officer admitted that a list of eligible licensees was prepared by the Market Supervisor (Vegetables) and was put up before him, which was signed by him, and was put up before other members of the Committee. There were 59 licensees who were carrying on business in the shed when it collapsed. In addition to that, 10 more licensees have been accommodated. However, there is no malafide. The statement of Jitender Singh, who was working as Auction Recorder on contract basis in the Market Committee at the relevant time, was also recorded, who stated that on 17.7.2009, the petitioner gave him the list of certain firms and told that these be added in the list of licensees who were carrying on business in the shed when it collapsed in 2007. At that time, some Aarthis were sitting with the petitioner in his office. He added the names of the new licensees in the list already available in the computer in the office of Mr. G. R. Pillai, Assistant Secretary, Market Committee and handed over the new list to the petitioner. In his statement, Mr. G. R. Pillai, the then Assistant Secretary, Market Committee stated that around 17.7.2009, on the verbal orders of Joint Secretary, Marketing Board, he had prepared a list of licensees, who were carrying on business of sale of vegetables on the shed when it collapsed. The list Criminal Misc. No. M-26409 of 2009 [6] was prepared in his office computer. He was called by the petitioner and asked for the list of licensees eligible for allotment of place in the newly constructed shed. After some time, Jitender Kumar, Auction Recorder, came in his room and told that the petitioner had instructed him to add certain more names in the list. After adding the new names, he took a print out and went away. However, when Mr. Pillai checked his computer, additions made in the list had not been saved. Even on 24.7.2009, when the allotments were made, he had given a list of 59 licensees to the Secretary, Market Committee to be handed over to the Chairman, Market Committee. This prima facie establishes that allotments have been made to the licensees who were not carrying on business in the shed when it collapsed. It is admitted by the petitioner himself during enquiry that as against 59 persons who were carrying on business in the shed, when collapsed, 10 new persons were accommodated. The reason therefor is not forthcoming. It is generally said that a man may lie but the circumstances do not. The documents speak for themselves. The submission of learned counsel for the petitioner that once the entire record is in possession of the Market Committee, there is no need of his custodial interrogation, is not having any merit. The documents merely speak as to what is contained therein. The documents will not show as to why the names of the persons, who were allegedly not eligible, were added in the list at the last moment and also the persons, who were eligible, were deleted therefrom and what was the reason for addition or deletion of names in the list. The argument of learned counsel for the petitioner that Ms. Prerna Puri, Joint Secretary, Marketing Board and Mr. Jujhar Singh, who were other members of the Allotment Committee, were equally guilty in case the petitioner is found to be guilty of the offence as they had also signed the final list of allottees and as they are not being made accused, the petitioner should also not be arrested, is also totally misconceived for the reason that merely because at this stage the other two persons, who had signed the list, have not been arrayed as accused will not absolve the petitioner of the offence allegedly committed by him. As on date whatever material has been collected, the same points out a finger towards the petitioner. It is not that other two signatories of the list and any other person involved in the offence have been absolved. The matter is still under investigation and in case role of any one in commission of the offence is found during investigation, he/they will also be taken care of. In the circumstances, in my opinion, the allegations which were Criminal Misc. No. M-26409 of 2009 [7] made by the complainant much prior to the allotments, deserve detailed investigation and the petitioner being at the helm of affairs, being a public figure and an elected representative, is certainly answerable for which his custodial interrogation would be required. If a person commits wrong, he cannot be permitted to take a plea that he is a public figure, there is no likelihood of his absconding and he will always make himself available for investigation, so he should not be taken into custody. A public representative has to be a role model. When the courts do not grant bail to other persons if they are involved in similar offences, there is no question of grant of anticipatory bail to the petitioner for whom the standards would be stricter. Accordingly, I do not find any merit in the present petition. The same is dismissed. However, it is made clear that nothing said above shall be considered as expression of final opinion against any one or on any of the issues involved in the case. Before parting with the order, I may refer to a news item which appeared in newspapers on 5th October, 2009, regarding abnormal rise in the assets of the candidates contesting Assembly elections in Haryana. On the top of the list was a person with an increase of 5488% during the period of 5 years in politics and in the other cases, the increase ranged from 142% to 987%. A common man after reading such news items is certainly in dilemma and poses a question to himself as to what kind of business/profession/service to the nation this is that they can multiply their assets to the extent of 5488% in merely 4 to 5 years. This may be the reason that more and more people are attracted towards this and whosoever are already in, want their kith and kin to follow the suit. (Rajesh Bindal) Judge October 06 , 2009 mk