@JUDGMENTTAG-ORDER
V. Ramkumar, J.@mdashIn these petitions filed u/s 438 Code of Criminal Procedure 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 120B read with Section 34 I.P.C. and Section 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
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 Prosecutions 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 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 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 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 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 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. u/s 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 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 R.D.O. it is reported that certain tribals were paid amounts by Al 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 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 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 Section 464 I.P.C. is a necessary ingredient of the offence of "forgery" u/s 463 I.P.C. punishable u/s 465 I.P.C. and of the offence of using a forged document as genuine punishable u/s 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 if ''A'' transfers the property to ''C'', it does not amount to making a false document within the meaning of Section 464 I.P.C. (Vide
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:
The Petitioners in B.A. No. 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 u/s 72 of the Kerala Land Reforms Act, 1964, (the "KLR Act" for short). On 22.8.1973 the Land Tribunal, Pudur issued a certificate of purchase u/s 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 comprised in Sy. 524/part of Sholayur Village were assigned to one Rengan, a tribal. As per certificate of purchase dated 29.1.1979 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 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 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 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 Rs. 1,00,000/-. But within three months A4 sold the said property to Sarjan Realities Limited for Rs. 6,00,000/-. Same is the pattern with regard to all other documents executed in favour of the company. When properties conveyed under many of the documents were really properties held by tribals, the Petitioners cannot contend that they have not wrongfully occupied properties held by tribals or that tribals were not dispossessed. It is true that formal complaints in writing by the tribals were lodged only in the year 2010 by complaining to the R.D.O. on 24.7.2010 against their dispossession. That does not mean that the prosecution case that they were dispossessed by the accused persons is false. The vulnerable position of the tribals should not be lost sight of. Even before they filed written complaints, the media had focused the dispossession of tribals in Attapadi area by the land mafia. Payment of tax by the vendors of the company is also inconclusive. Sankaranarayanan (A3) paid an amount of Rs. 81/- by way of tax for the property in Sy. 1275/1 only for the year 2006-2007 but paid a sum of Rs. 648 by way of arrears without mentioning the period of arrears. Same is the position with regard to the other vendors such as Selvi, Savithri and others. The signatures of Prem Shameer (A4) in document Nos. 1042, 1043 and 1044 are totally dissimilar. So is the position in the case of Savithri. Section 4 of Act 12 of 1999 will be attracted only if a member of Scheduled Tribe transfers any land held by him. Even according to the Petitioners, no tribal has transferred lands in favour of the Company. On the contrary, it is Act 33 of 1989 which is applicable and rightly invoked as well. Clauses (iv) and (v) of Section 3(1) of Act 33 of 1989 are squarely attracted in this case since consequent on the transfers, properties possessed by tribals have been wrongfully occupied after dispossessing them. The question regarding Special Law and General Law as between Kerala Act 12 of 1999 and Central Act 33 of 1989 does not arise in this case. In the first place, both the above statutes occupy different fields. Act 12 of 1999 is a local statute where as Act 33 of 1989 is a central statute. While the offence u/s 12 of Kerala Act 12 of 1999 will be attracted only when there is a transfer of a property possessed, enjoyed or owned by a tribal in contravention of Section 4 thereof, the offence u/s 3(1)(iv) & (v) of Act 33 of 1989 which is a central statute will be attracted even without a transfer of land held by a tribal or a member of Scheduled Caste. That apart, it is well settled that when an act or omission constitutes an offence under 2 or more statutes then the offender is liable to be prosecuted and punished under either or any of those statutes but the only restriction is that he is not liable to be punished twice for the same offence. (Vide Section 26 of the General Clauses Act, 1897). See also
JUDICIAL EVALUATION
5. Since the Petitioners in B.A. 6594 of 2010 have not been arrayed as accused in the case, the apprehension of arrest entertained by them is unfounded.
After considering the rival contentions, I am prima facie inclined to agree with the Director General of Prosecutions. A & B Register which itself is not final cannot be given that level of sanctity attributed to it by the Petitioners because the said Register is demonstrably inaccurate. Certificates of purchase issued to tribals way back in the seventies in respect of specified parcels of land in Sy. No. 1275/Part of the erstwhile Sholayur Village (presently Kottathara Village) do not find reflected in the said Register. There are other contemporaneous records to indicate that tribals were in possession of lands in the area in question. Written complaints have in fact been lodged by tribals alleging dispossession. The delay in preferring their complaints cannot be taken advantage of by the Petitioners. Poverty - stricken tribals who are members of the Scheduled Tribe constitute an underprivileged and hapless lot with no literacy and nobody to aid or advise them. Far from lending a helping hand, non-tribals only exploit them. It may not be an exaggeration if they have represented that they were lured into giving consent for the erection of electric posts and wind mills on payment of fabulous amounts. Nonest factum is a defence which can safely be put forward in favour of a tribal who is induced to enter into a transaction with a literate non-tribal. It is too early to accept the contention of the Petitioners that the properties possessed by tribals have not been wrongfully occupied or that the tribals have not been dispossessed.
6. Section 18 of Act 33 of 1989 reads as follows:
18. Section 438 of the Code not to apply to persons committing an offence under the Act - Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
The validity of Section 18 is not challenged on the ground of unreasonable classification or hostile discrimination. In fact, after the decision of the Apex Court in Ram Krishna''s case (supra) Section 18 is beyond the pale of attack as violative of Article 14 or 21 of the Constitution of India.
7. Going by the apparent tenor of the heading of Section. 18, it would appear as though anticipatory bail is out of reach of a person committing an atrocity (offence punishable u/s 3). But the body of the Section goes further to render the provision of anticipatory bail unavailable to a person who is under an accusation of having committed an offence under the Act. It is well settled that where there is a conflict between the heading of the Section and the body of the Section, the body has to prevail over the heading unless it results in an irreconcilable absurdity. While in the case of a person committing an offence, it may be open to the Court to consider prima facie whether the ingredients of the offence are made out, in the case of a person against whom there is an accusation of having committed an offence, it is doubtful whether the Court can examine whether the ingredients of the offence are made out. A mere accusation of having committed an offence is sufficient to take away the power of the Court to grant anticipatory bail. Apart from doing violence to the plain meaning of the words employed in the body of Section. 18, by resorting to a construction which is canvassed by the Petitioners, the object sought to be achieved by the legislation under consideration would be defeated. I am, therefore, with due respect, unable to subscribe to the view taken by certain High Courts that anticipatory bail can be granted in a case where the ingredients of the offence are not prima facie present. All that the Court is expected to examine is only whether there is an accusation of having committed an offence under the Act. In this case, there is undoubtedly an accusation as above and that divests the Court of its jurisdiction to grant anticipatory bail. The statutory interdict is only against the granting of anticipatory bail. But there is no embargo against the Magistrate concerned granting from regular bail in an appropriate case upon a motion made in that behalf. Even if the interdict under Section. 18 of Act 33 of 1989 could be surmounted in a given case on the ground that there is no prima facie case made out in respect of an offence punishable thereunder, that cannot come to the rescue of the accused since this is nota fit case in which it could safely be said that the allegation of atrocity falling under Clauses (iv) and (v) of Section 3(1) of Act 33 of 1989 is totally unfounded. Custodial interrogation of the Petitioners other than those in B.A. 6594 of 2010 cannot be denied to the Investigating Agency.
8. Anticipatory bail cannot, therefore, be granted in a case of this nature. But at the same time, I am inclined to permit A1 to A4 to surrender before the Investigating Officer for the purpose of interrogation and then to have their application for bail considered by the Magistrate having jurisdiction. Accordingly, A1 to A4 shall surrender before the investigating officer on 22.11.2010 or 23.11.2010 for the purpose of interrogation and recovery of incriminating material, if any. A1 to A4 shall thereafter be produced before the concerned Magistrate who on being satisfied that they have been interrogated by the police, shall consider and dispose of their application for regular bail on merits preferably on the same date on which it is filed. It is needless to mention that the Magistrate shall consider the application untrammeled by the observations in this common order. Since the Petitioners in B.A. No. 6594 of 2010 have not been arrayed as accused in the case, their application is dismissed.
B.A. Nos. 5910, 5914 and 6673 of 2010 are disposed of as above. B.A.6594 of 2010 is dismissed.
