ORDER
R.P. Sethi, J.
1. The petitioner Khazan Chand, an Addl. Deputy Commissioner, in Revision Petition No. 1/92 and petitioners Jagat Singh and others in Bail Application No. 110/91 are alleged to be the kingpins of a criminal conspiracy by which the State is alleged to have been defrauded to the tune of Rs. 1,51,23,000/-. They are involved in what is popularly known as “Birpur Land Scandal case”. The petitioners in both the cases have prayed for the grant of bail in anticipation of their arrest in terms of Section 497A, Cr.P.C. None of the petitioners has so far been arrested by the investigating agency.
2. The facts of the case as disclosed by the investigating agency are that the land measuring 2253 kanals 12 marlas situate at village Birpur, tehsil Jammu, was requisitioned for the use and occupation of the Indian Army by the Deputy Commissioner, Jammu, under the provisions of the Requisitioning and Acquisitioning of the Immovable Property Act, 1968, in the month of July, 1977. The land included 1600 kanals out of the land comprising survey No. 1035. It is alleged that the said land was initially Shamlat Deh. 374 Kanals 18 Marias out of this land was transferred in favour of the State under the Big Landed Estates Abolition Act, through a mutation, Annexure R1. It is further alleged that being Banjar Qadim i.e., unclulturable, 2192 kanals 16 marlas out of remaining 2274 kanals was transferred in favour of the State and reserved for grazing purposes of the village community vide mutation No. 884 dated 27-6-1959 (Annexure R2). Only 81 kanals and 4 marlas of land continued as Shamlat Deh Hasab Rasad Khewat. The entries regarding the nature of land and its reservation were verified and confirmed which were duly reflected in Jamabandi of 1959-60 (Annexure R3). The land continued to be used for grazing purposes for the village community till 1987 when the Indian Army occupied it. The land was acquired vide notification in Form-J on 27-4-1989 which included 1600 kanals comprising Khasra No. 1035. The case was transferred to the Deputy Commissioner, Jammu, vide notification SRO-59 of 1970 dated 6-2-1970 to perform the functions under the 1968 Act. He assessed compensation of the land, both State and private, and submitted the case to the Government for approval.
3. In 1988 Ravel Singh and Rachhpal Singh petitioners made applications before the Asstt. Settlement Officer, Jammu, for verification of their possession over 81 kanals and 4 marlas of land out of survey No. 1035/min on the plea that they had that much share in Shamlat Deh and their possession was not entered in the revenue record. The settlement Tehsildar without any notice to the State or the villagers, in his ex parte order, held that the ownership rights of the land owners in the village had extinguished under the Big Landed Estates Act and the same stood exclusively reserved for grazing purposes vide mutation (Annexure R2). He further reported that same land had escheated in favour of the State and the tenants in the ownership. He directed on 30-8-1988 that possession of Ravel Singh and Rachhpal Singh had entered 81 kanals 6 marlas of Shamlat Den land provided the same did not contravene the provisions of the Agrarian Reforms Act.
4. After the amount of compensation was assessed by the competent authority Ravel Singh and Rachhpal Singh filed a suit on 19-9-1990 before the Deputy Commissioner, Jammu, to the effect that they had remained in continuous possession of 800 and 700 kanals of land respectively out of survey No. 1035 as sharesholders up to 1977 when the same was requisitioned. They prayed that the entries in Jamabandis up to 1959-60 to the extent of joint possession of the nature of land showing it as Banjar Qadim instead of Gair Mumkin be corrected and they be declared as owners in possession thereof all along. On 17-10-1990 they filed appeal against the order of mutation No. 884 of 1959, one Ved Sharma, Asstt. Commissioner accepted the appeal and decreed the suit on 1-11-1990. The authorities had assessed the tentative amount of compensation of the land at the rate of Rs. 10,000 per kanal and the army authorities had arranged an amount of Rs. 1,92,50,000 to be paid to the competent authority for onward disbursement to the rightful claimants. The total amount which was liable to be disbursed as compensation was to the extent of Rs. 5,63,40,000. It is submitted that a conspiracy was hatched with the officers and other petitioners in pursuance of which Khazan Chand petitioner is alleged to have started correspondence with the Defence Estates Officer to remit 80 per cent of the total amount of compensation. Ultimately an amount of Rs. 1,54,07,804 was sent to the Deputy Commissioner, Jammu, through bankers’ cheque on 7-12-1990 which was received by said Khazan Chand against receipt in his own hand. It is further alleged that one of such letters written by him was dated 25-9-1990. On the same day he is stated to have opened an account in the Jammu and Kashmir Bank Ltd., Link Road branch and requested the Manager to deposit the above-said amount in his account. He is further alleged to have sought advice from the Defence. Estate Officer as to whether the abovesaid cheques could be issued in the name of the Addl. Deputy Commissioner as he was not to operate on such cheques independently unless duly authorised by the Deputy Commissioner, the competent authority. Khazan Chand is attributed to have added the word “Additional” between the words “Bankers’ cheque” and “Deputy Commissioner, Jammu” only to create an impression as if the cheque referred above was issued in his favour. After the bankers’ cheque was deposited in the bank, Khazan Chand is stated to have made payments in favour of other petitioners to the tune of Rupees 1,51,23,000. After knowing about the payment of the amount, some of the villagers filed appeal and revision before the Director, Land Records Jammu and the Divisional Commissioner, Jammu and obtained stay orders. As no payment could be made in presence of the stay orders, petitioner Jagat Singh filed Writ Petition No. 104 of 1991 in this Court with a prayer for direction to the respondents for payment of compensation assessed by the competent authority in respect of the land comprising survey Nos. 43, 43, 44, 45 and 1033 situate in village Birpur. The writ petition was, however, dismissed on 1-7-1991. During the pendency of the earlier writ petition, Jagat Singh and others filed another writ petition bearing No. 413 of 1991 for direction to the competent authority and Khazan Chand to make payment of 80 per cent of the amount of compensation assessed in lieu of acquisition of the land. A single bench of this Court issued notice in the first instance to the State and the competent authority to show cause against the admission of the writ petition and in the application for interim relief, compensation was directed not to be paid to anybody. However, in C.M.P. No. 1364/91 an order was obtained from the Court for release of 80 per cent of the amount in favour of the petitioners on the basis of affidavit filed by Khazan Chand presumably by suppressing material facts.
5. It is alleged that the petitioners in conspiracy with each other manipulated the payment of the amount of about 1.50 crores rupees by misrepresentation of facts and misleading the Courts. It is submitted in the alternative that even if Ravel Singh, Rachhpal Singh, Dhian Singh and Jagat Singh, were entitled to receive the payment for 1581 kanals 6 marks, the share of Rachhpal Singh could not have exceeded Rs. 59,24,000 whereas he was paid Rs. 82,00,000; Ravel Singh was paid Rs. 50,00,000 and Jagat Singh got Rs. 2,72,000 instead of Rs. 1,08,800; Chain Singh got Rs. 13,62,000 instead of Rs. 5,44,000. It is submitted that during the investigation a sum of Rs. 99,00,000 out of the amount of Rs. 1,54,00,000 has been seized by the investigating agency and the remaining amount of Rs. 55,00,000 is yet to be recovered from the petitioners.
6. The petitioner Khazan Chand moved an application for grant of bail in the Court of Special Judge, Anti-corruption, Jammu, who, vide order dated 24-3-1991 rejected his prayer holding him not entitled to the benefit of Section 497A, Cr.P.C, After the dismissal of his application for the anticipactory bail, the petitioner has filed revision petition along-with application for bail in this Court at Srinagar Wing.
7. I have heard learned Counsel for the parties and perused the record of the case including the case diaries.
8. Learned counsel appearing for the petitioners have vehemently argued that no case is made out against their clients who are entitled to be released on bail in anticipation of their arrest. It has been argued at length that non-official petitioners were eligible and rightly held entitled to the payment of amount received by them. It has been contended that no case of criminal conspiracy is made out on the facts as narrated by the investigating agency in the absence of important missing links. It has been elaborated that the conspiracy to commit the crime cannot be complete unless the Deputy Commissioner, Jammu; Asstt. Settlement Officer, Jammu; Ved Sharma, Asstt, Commissioner and the employees of the Jammu and Kashmir Bank, Link Road, Branch, Jammu; are impleaded as accused in the case. There may be some force in the argument of learned Counsel for the petitioners, but, I have decided not to comment upon the merits of the case and shall only consider the circumstances justifying the grant of bail in anticipation of their arrest to the petitioner or any one of them.
9. The scope of Section 497A, Cr.P.C. was considered by this Court in case State v. Sat Paul, 1990 KLJ 221, wherein it was held :
The provisions of anticipatory bail was introduced in this country for the first time vide Central Code of Criminal Procedure, 1973, and brought in the State Book of the State vide Section 497A, Cr.P.C. inserted by Act No. XXVII of 1978. The object of granting bail in anticipation of arrest was necessitated in conflict of judicial opinion about the power of the Court to grant anticipatory bail. The conscientious of judicial opinion was that bail could not be granted to a person who had not been arrested or not surrendered to any custody under an order of arrest. The Law Commission in its Fourty-First Report considered the desirability of anticipatory bail and observed as follows:
The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purpose by getting them detained in jail for some days. In recent times, With the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.
While granting anticipatory bail the Court dealing with the case has to see the nature and seriousness of the accusations, the nature of the evidence in support of the accusation, severity of the punishment which the conviction will entail, the character, behaviour and Standing of the accused, a reasonable possibility of the presence of the accused not being secured at the trial, the danger of the alleged offence being continued or replaced, the danger of witnesses being tampered with, the larger interests of the public or the State, the apprehension of the accused being wrongly implicated in false case for the purpose of disgracing him and the possibility of the involvement of the accused on the grounds of political rivalry, and similar other considerations. The power to grant anticipatory bail can be exercised only in cases involving non-bailable offences and the Court must be satisfied that if the anticipatory bail is refused, an irreparable wrong or injustice might result which could be avoided only by the grant of anticipatory bail . . . .
The Supreme Court in Gurbux Singh v. State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125) also referred to Forty-first report of the Law Commission and after considering the same, held:
No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a Certain amount of sang-froid, in so far as the ordinary rule of criminal investigation is concerned. It is the normal day-to-day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand-cuffs, apparently oh way to a Court of justice. The foul deed is done when an adversary, is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.
The power under Section 497A, Cr.P.C. has, therefore, to be exercised sparingly in exceptional cases only without being influenced by the status of the persons involved but keeping in view the allegations of the investigating agency and the stage of investigation. The discretion under Section 497A, Cr.P.C. shall not be exercised in favour of persons who are found to be guilty of serious offences affecting the society involving allegations amounting to shattering the confidence of the people in the impartiality and the majesty of law. The larger interests of the public and the State demand that in serious cases like economic offences or offences involving public money or cases of blatant corruption at the higher rungs of executive and the political power, such discretion should not be exercised. General allegations of mala fides in the petition are not suficient justifying the grant of discretionary relief in favour of the accused persons.
10. Keeping in view the facts and circumstances of the case, the amount of public money involved, the larger interests of the people and the society, the seriousness of the offence alleged and the notoriety which was attached to this “Birpur Land Scandal case” none of the petitioers is entitled to the grant of bail under the normal circumstances. However, the investigating agency has equally been found to be most irresponsible and negligent in the conduct of the case. Despite registration of the case for over a period of one year, no challan has been produced in any Court of law so far. Even though none of the accused-petitioner is entitled to the grant of bail, yet, keeping in view the conduct of the investigating agency I am inclined to grant bail to one of the accused persons only, namely, Khazan Chand on the grounds: (i) that he is a gazetted officer of the State and there is no likelihood of his absconding; (ii)prima facie Khazan Chand alone could not have made payments and the other responsible officer have not been arrayed as co-conspirators so far; (iii) the investigating agency has not taken any step for his arrest. The latest record reveals that after rejection of his bail application by the Special Judge, Anti-Corruption, on 24-8-1991, no effort whatsofar appears to have been made to arrest him till 28-8-1991 when a direction was given that he shall not be arrested by the police till the next date. The case was adjourned on 30-8-1991 to 5-9-1991 with the direction that the interim direction shall continue till that date. The said interim bail was never extended thereafter till 21-10-1991. For this period of about one month and 15 days, the investigating agency is not shown to have taken any step for arresting Khazan Chand petitioner despite the fact that he was a Government Officer and has never been reported to have absented from duty. The investigating agency has been proved to be hands-in-glove with said Khazan Chand and never interested in arresting him; and, (iv) Khazan Chand who himself has apparently not received any amount by cash or cheque from the Government, was directed to remain present before the investigating agency on every Monday, Friday and Saturday of week between 10 a.m. to 12 noon for a period of over one month during the pendency of this petition. The investigating officer has admitted that the accused-petitioner has been appearing before him as per directions of the Court.
11. So far as the other accused persons are concerned who have admittedly received a sum of Rs. 1,54,00,000 from the authorities of the respondent-State, a sum of Rs. 55,00,000 is still to be recovered. The accused persons were directed in the Court to account for the aforesaid amount to which they could not submit any satisfactory reply. They have failed to disclose the details of the aforesaid amount of Rs. 55,00,000 to the investigating officer as well. One of such petitioners Wad even absconded the interim bail. With such a huge amount lying with them there is every liklihood that the aforesaid petitioners may prejudice the investigation by influencing the witnesses and tampering with the record. The other petitioners have not been in a position to satisfy the Court warranting or justifying the grant of discretionary relief of anticipatory bail in their favour. Releasing them on bail would amount to shattering the confidence of the people in the investigation and may ultimately result in the misappropriation of huge amount of Rupees 55,00,000 not so far accounted for by them.
12. I have wilfully refrained from commenting upon the merits of the case or discuss as to whether any case is made out against the petitioners or not or that some other persons or officers are yet required to be roped in to complete the conspiracy, with the object that it may not prejudice the case of any one of the parties. The investigating agency may consider the arguments of learned Counsel for the accused and take appropriate action under law before approaching the Court.
13. Under the circumstance these petitions are disposed of by giving a direction that Khazan Chand petitioner shall, in case of his arrest, be released on bail on his furnishing bail bonds in the amounts of Rs. 1,00,000 (Rupees one lac) with two sureties and personal bond of the like amount to the satisfaction of the arresting officer. He shall also give an undertaking that he shall not leave the State without prior permission of the Court and shall not come into contact with any one of the prosecution witnesses who are sought to be produced in the case. He is further directed not to deal with any case of acquisition of land till further orders. The prayer of the other petitioners for grant of bail is rejected. Interim bail granted to them shall stand cancelled, However, if the investigation is not completed and the challan not produced in the court of competent jurisdiction within a period of one, month, from the date of their arrest, the other accused-petitioners shall also be entitled to file application before the subordinate court who upon consideration of facts and circumstances, may grant them bail upon such terms and conditions as may be deemed proper.
14. All connected Cr. M. Ps. shall stand disposed of.