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Gujarat High Court · body

2021 DIGILAW 641 (GUJ)

VELJIBHAI JOTIBHAI VASAIYA v. STATE OF GUJARAT

2021-07-30

B.N.KARIA

body2021
ORDER : The present application is filed under Section 439 of the Code of Criminal Procedure by the applicants for regular bail in connection with an FIR being C.R.No. I- 11821033210086 of 2021 registered with Limdi Police Station, District: Dahod for the offences punishable under Sections 3 and 4(3) of the Gujarat Land Grabbing (Prohibition) Act 2020. Learned advocate for the applicants submits that this is a successive bail application preferred by the applicants as Criminal Misc. Application No.7229 of 2021 was withdrawn by the present applicants as the chargesheet was filed during pendency of the said application and vide order dated 2.6.2021 permission was granted and hence, this successive bail application is preferred by the applicants. It is further submitted that as per the allegations, the applicants have encroached upon the land of the complainant and for that Regular Civil Suit No.29 of 2012 was filed by the complainant before the learned Civil Court, Jhalod wherein the decree was passed thereon holding the land is of the complainant. It is further submitted that the decree passed in Regular Civil Suit No.29 of 2012 was challenged before the District Court by filing an appeal being Regular Civil Appeal No.1 of 2021 which is pending for adjudication. It is submitted that the investigation is completed and chargesheet is filed and there is not a single evidence against the present applicants. It is further submitted that survey No.22 is having old survey No.162/2 and forefather of the applicants was declared occupant of the said land in Tenancy Case No.268 of 1977 by order dated 5.9.1977 and entry No.346 was mutated for the same. Learned advocate has referred Village Form No.8A as well as 7 and 12 issued by the competent authority being part of the chargesheet papers produced on record. It is submitted that entry No.796 was mutated in old survey No.162/2 which was given new survey No.22. It is submitted that the complainant has also preferred the Execution Petition before the Civil Court for compliance of the decree passed in the Civil Suit. It is submitted that right over the land is to be decided by the Civil Court where the dispute is pending. It is submitted that survey No.250 is also having old survey No.198 having the same area. In support of his contention, he has referred the document at Annexure-H, page 46. It is submitted that right over the land is to be decided by the Civil Court where the dispute is pending. It is submitted that survey No.250 is also having old survey No.198 having the same area. In support of his contention, he has referred the document at Annexure-H, page 46. It is further submitted that on 12.10.2020, the application was given from the applicants’ side to the competent authority that the complainant has attempted to convert the civil dispute into the criminal dispute and therefore, it was requested by learned advocate to enlarge the applicants on regular bail on suitable terms and conditions. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has strongly opposed grant of regular bail looking to the nature and gravity of the offence. He submitted that it is a clear case established by the prosecution to involve the present applicants in the offence under sections 3 and 4(3) of the Gujarat Land Grabbing (Prohibition) Act 2020. It is further submitted that the present applicants are in unlawful possession of the land as they have grabbed the land of the complainant and have constructed four pakka houses on the land which is clearly prohibited under section 4 of the aforesaid Act. It is further submitted that the Civil Court has also passed the decree in favour of the complainant and however, the applicants are not vacating the land in question. It is further submitted that referring the chargesheet papers produced on record, prima facie, the applicants are involved in serious offence and learned Sessions Judge has rightly dismissed the bail application preferred by the present applicants. It is further submitted that there is nothing on record to suggest change of circumstances and after withdrawal of previous application, the present applicants are before this Court and that filing of the chargesheet cannot be treated as fresh ground to give benefit to the applicants. I have heard learned advocates appearing on behalf of the respective parties. Having heard learned advocate for the applicants and learned APP, it appears from the complaint at Annexure-A that the alleged offence was committed by the applicants from 1.6.2012 to 12.3.2021 under sections 3 and 4(3) of the aforesaid Act and the complaint was registered against the present applicants on 12.3.2021. As per the contents of the complaint, there are 13 persons who are arraigned as accused. As per the contents of the complaint, there are 13 persons who are arraigned as accused. It is stated in the complaint that forceful possession was taken by the present applicants of the land which was owned by the complainant and constructed the houses. The accused have abetted in committing the offence. As per the contents of the complaint, land of survey No.250 of village Sarmariya, Taluka Jhalod was admeasuring 6 Hector, 56 Are and 00 square meters and kharaba admeasuring 0.09 Are, total admeasuring 6 Hectors, 65 Are and 00 square meters was owned by the complainant and his family members which was entered in the revenue record. There was no right, title and interest of anybody except the complainant and his family members as they were paying the land revenue and taxes also. As per the allegations made in the complaint, adjoining to the land of the complainant, on the southern side, the accused persons are having the land bearing survey No.22 and that the accused persons have threatened the complainant and created atmosphere of danger, grabbed the land and constructed four pakka houses in the said land and therefore, the complainant filed Regular Civil Suit No.29 of 2012 before the Civil Court with a prayer to declare him as owner of the land in question i.e. Survey No.250. As per the contents of the complaint, the suit was decreed, however, possession of the land was not removed by the accused persons. Further, it is stated in the complaint that on 12.10.2020, crops of danger and makai was there in the land and accused persons set on fire and therefore, on 21.11.2020, measurement was made of the land by the competent authority and map was also prepared. It was found that encroachment was made by the accused persons, but however, they are not releasing possession of the land as it was grabbed by them. After registration of the complaint, investigation was carried out by the Investigating Officer and chargesheet was also filed. It appears from Village Form No.7 and 12 and 8A, names of some of the accused are shown as occupiers of survey No.22. It is undisputed fact that the civil suit filed by the complainant i.e. Regular Civil Suit No.29 of 2012 was decreed by the Civil Court in favour of the complainant. It appears from Village Form No.7 and 12 and 8A, names of some of the accused are shown as occupiers of survey No.22. It is undisputed fact that the civil suit filed by the complainant i.e. Regular Civil Suit No.29 of 2012 was decreed by the Civil Court in favour of the complainant. It is not in dispute that Regular Civil Appeal No.1 of 2021 is also preferred by the accused persons before the District court which is pending for adjudication. As per the submission made by learned advocate for the applicants, the Execution Petition is also preferred by the complainant before the Civil Court which is also pending. From Annexure-H, page 46, it appears that the complainant is also having land bearing survey No.216/1 in the same village having old survey No.198. At the same time, survey No.250 is also having old survey No.198 having the same area. The said dispute is pending since long and the civil suit was filed by the original complainant. The right, title and interest in respect of the land in question is subject matter before the Civil Court and the appeal preferred by the present applicants is pending before the District Court concerned. The chargesheet is filed after completion of investigation by the Investigating Officer. There is no possibility of tampering the witnesses of the prosecution by the present applicants. The presence of the applicants would not require in custody till the end of the trial pending before the learned trial Court and therefore, this Court is of the considered view that the prayer made by the applicants to release them on regular bail on suitable terms and conditions requires consideration. In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, I am of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. In the facts and circumstances of the case and considering the nature of allegations made against the applicant in the FIR, I am of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, the present application is allowed and the applicants are ordered to be released on regular bail in connection with an FIR being C.R.No. I - 11821033210086 of 2021 registered with Limdi Police Station, District: Dahod for the offences punishable under Sections 3 and 4(3) of the Gujarat Land Grabbing (Prohibition) Act 2020 on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety of the like amount each to the satisfaction of the learned Trial Court and subject to the conditions that the applicants shall; [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned; [e] mark presence before the concerned Police Station fortnightly for a period of six months, between 11:00 a.m. and 2:00 p.m.; [f] furnish latest and permanent address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the learned Sessions Court concerned; The Authorities will release the applicants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. This order be communicated to the applicants through Jail Authorities by the registry as well as learned Sessions Court concerned.