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2021 DIGILAW 602 (GUJ)

KUNVERBEN MARKHIBHAI KARMUR v. STATE OF GUJARAT

2021-07-17

A.S.SUPEHIA

body2021
ORDER : 1. Heard the learned advocates for the respective parties by video conferencing. 2. By way of the present applications filed under Section 438 of the Code of Criminal Procedure, 1973, the applicants-accused have prayed for bail in connection with the FIR being C.R. No.11202046210044 of 2021 registered with Jamnagar Panch 'B' Police Station, Dist.Jamnagar for the offences under Sections 4(2), 4(3), 5(a) and 5(c) of the Land Grabbing (Prohibition) Act, 2020. 3. The case of the prosecution in brief is that, as per the F.I.R. well as charge-sheet, which is filed in the case of the co-accused is that the land bearing survey No.131 and 132 situated at village Dared, has been grabbed by the applicants. The contentions of the F.I.R. as well as the charge-sheet reveals that one – Vijaykumar Malani incorporated new Dared Non-trading Corporation (Scheduled) the and he had made a layout plan comprising of 179 sub-plots and handed over possession to the applicants by way of agreements to sale on different dates commencing from 2012. 4. Learned advocate for the applicants has submitted that there are more than 110 accused arraigned in the F.I.R. He has further submitted that the concerned land was allotted to one – Bhura Ladhabhai Bharvad in the year 1963 as new tenure land for agricultural purpose and upon demise of Bhurabhai, a revenue entry came to be posted in favour of his family members on 27.06.1993 and thereafter, appropriate permission was also sought from the Collector by paying premium and an entry came to be made vide order dated 21.10.1995 in favour of Narshibhai Hemantbhai Patel. He has submitted that the Collector had also granted permission to the concerned subject land by order dated 17.06.1996 and thereafter, the subject land was matter of various litigations and ultimately, on 05.08.2013, Narshibhai Hemantbhai Patel has filed an application for conversion of the said land for non-agricultural purpose and vide order dated 15.10.2013, the Collector, Jamnagar rejected the said application on the count that it is already being used for nonagricultural purpose, therefore, permission cannot be granted. It is further submitted that on 25.07.2016, upon physical verification by the office of Collector, it was noticed that there has been a breach of condition qua agricultural use and the said land came to be vested as Government Land and in the meantime, one - Vijaykumar Malani incorporated the aforesaid society and the layout plan was also made by him comprising 179 sub-plots, which are handed over to the applicants. 4.1. Learned advocate has further submitted that thus the applicants cannot be said to be land grabbers as they are bona fide purchasers of the said land and appropriate orders were passed by the concerned authorities from 1963 to 2016 with regard to the subject land. It is further submitted that the public notice dated 05.01.2021, which was issued by the Collector qua the aforesaid land, is challenged before this Court in a Writ Petition being Special Civil Application No.3159 of 2021 and vide order dated 16.02.2021 the public notice has been stayed till further orders. Thus, it is submitted that looking to the time lapse, the present applications may be granted as the case of the applicants would not fall within the purview of this Act. 4.2. It is further submitted that as per the revenue records it can be deduced that from the year 1993 to 2014, the revenue authorities have never gone into the merits of the aspect that whether the subject land can be converted for non-agricultural purposes from agricultural purpose and it was only the jurisdictional part of the Collector, which attracted interference from the Revenue Department and that too was subsequently cured, when the proposal was sent by the Collector qua conversation of the land. It is also submitted that even in the order passed by this Court in Special Civil Application No.15754 of 2010 dated 29.07.2013, a communication from the officer of the Collector, Jamnagar came to be recorded depicting the fact that the subject land could have been considered for conversion on a payment of required premium. He has further submitted that one of the co-accused being co-accused - Hanif Salim Khafi has been released on anticipatory bail by this Court vide order dated 06.07.2021 passed in Criminal Misc. Application No.5704 of 2021 and, therefore, on the ground of parity the present applications may be allowed. 4.3. He has further submitted that one of the co-accused being co-accused - Hanif Salim Khafi has been released on anticipatory bail by this Court vide order dated 06.07.2021 passed in Criminal Misc. Application No.5704 of 2021 and, therefore, on the ground of parity the present applications may be allowed. 4.3. Learned advocate for the applicants has submitted that the nature of allegations are such for which custodial interrogation of the applicants at this stage is not necessary. He has further submitted that the applicants will keep themselves available during the course of investigation, as well as in the trial also and will not flee from justice. 4.4. Learned advocate for the applicants, upon instructions, has submitted that the applicants are ready and willing to abide by all the conditions, including imposition of conditions with regard to powers of investigating agency to file an application before the competent Court for their remand. He has further submitted that upon filing of such application by the investigating agency, the right of the applicants accused to oppose such application on merits may be kept open. Learned advocate, therefore, has submitted that considering the above facts, the applicants may be granted anticipatory bail. 5. On the other hand, learned Additional Public Prosecutor appearing on behalf of the respondent– State, while placing reliance on the charge-sheet in case of the co-accused as well as order of the trial Court, has submitted that the applicants cannot be said to be the land grabbers as they are the plot-holders of the Government land. It is further submitted that the Committee headed by the Collector found that the applicants are the land grabbers and accordingly the public notice is also issued for vacating such land. It is further submitted that thus, looking to the status of the land, which has been in the name of the Government, the applicants can be said to be the land grabbers. Therefore, the learned APP has opposed to grant of anticipatory bail looking to the nature and gravity of the offence. 6. It is further submitted that thus, looking to the status of the land, which has been in the name of the Government, the applicants can be said to be the land grabbers. Therefore, the learned APP has opposed to grant of anticipatory bail looking to the nature and gravity of the offence. 6. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, the lands mentioned hereinabove, the revenue record as well as facts narrated in the F.I.R. that the said subject land bearing Survey Nos.131 and 132, situated at Village Dared, initially belonged to Bhura Ladhabhai Bharvad and the revenue entry came to be posted in favour of his family members on 27.06.1993 and thereafter, the land was converted for non-agricultural purpose and permission was also granted by the Collector on 12.09.1995. Thereafter, Narshibhai Patel entered into an agreement to sell on 09.11.1995 and it appears that the Collector cancelled the permission granting conversion of subject land on 17.06.1996, which was subject matter of dispute before the Deputy Secretary (Appeal), Revenue Department. Ultimately, it appears that 05.07.2016, upon physical verification by the Office of the Collector, it came to the notice that there is breach of condition qua agricultural subject land and the said land was vested with the Government. It appears from the report of the Investigating Officer that in the year 2005 one of the accused – Jayeshbhai Patel, in connivance with one – Vijaybhai Malani entered into conspiracy by creating new Dared trading corporation with regard to the land in question and prepared a lay-out plan of 179 sub-plots of the said land, without informing the State authorities. The present applicants have bought the plot from Mr.Malani. Prima facie, from the aforesaid facts as well as the report of the Investigating Officer, it is manifest that the entire conspiracy has been created by accused Jayesh Patel in connivance with Hiteshbhai and Vijaybhai Malani. The entire conspiracy was hatched in the year 2012 and prima facie, it appears that the present applicants are in fact victims of such conspiracy and they had already paid the amount for the plot. Considering above, I am inclined to grant anticipatory bail to the applicants. 7. The entire conspiracy was hatched in the year 2012 and prima facie, it appears that the present applicants are in fact victims of such conspiracy and they had already paid the amount for the plot. Considering above, I am inclined to grant anticipatory bail to the applicants. 7. This Court has considered following aspects; (a) The role of the applicants; (b) There is delay in registering the F.I.R.; (c) Prima facie, the case is based on documentary evidence, which is with the Investigating Officer; (d) Learned advocate has pointed out that the applicants are the victims and not the land grabbers; (e) One of the co-accused has been released by this court on anticipatory bail; (f) Considering the facts of the case, the custodial interrogation of the applicants at this stage is not necessary. 8. This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (NCT of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, A.I.R. 2011 S.C. 312. 9. In the result, the present applications are allowed. 8. This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (NCT of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, A.I.R. 2011 S.C. 312. 9. In the result, the present applications are allowed. The applicants are ordered to be released on bail in the event of their arrest in connection with FIR being C.R. No.11202046210044 of 2021 registered with Jamnagar Panch 'B' Police Station, Dist.Jamnagar on their executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) (EACH) with one surety ofi like amount on the following conditions that they : (a) shall cooperate with the investigation and make themselves available for interrogation whenever required; (b) shall remain present at the concerned Police Station on 26.07.2021 between 11.00 a.m. and 2.00 p.m.; (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the addresses to the investigating officer and the court concerned and shall not change their residences till the final disposal of the case till further orders; (f) shall not leave India without the permission of the concerned trial court and if having passports shall deposit the same before the concerned trial court within a week. 10. Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicants, if he considers it proper and just and the Magistrate would decide it on merits. The applicants shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand. The applicants shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the concerned Magistrate to consider such a request in accordance with law. It is clarified that the applicants, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 11. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order. 12. The applications are allowed in the aforesaid terms. RULE is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority / court through Fax message, email and/or any other suitable electronic mode. 13. Learned advocate for the applicants is also permitted to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode. 14. Registry to place a copy of this order in each of the connected matters.