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2022 DIGILAW 564 (GUJ)

Gajera Himmatlal Ravjibhai v. State Of Gujarat

2022-04-22

VIPUL M.PANCHOLI

body2022
ORDER : 1. The applicant-original accused no.1 has filed the present application under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code’ for short) for enlarging him on anticipatory bail in the event of his arrest in connection with FIR being C.R.No.I-11191011210095 of 2021 registered with DCB Police Station, Ahmedabad city. 2. The original first informant has filed FIR being C.R.No.I11191011210095 of 2021 registered with DCB police station, Ahmedabad city against the present applicant and others for the alleged offences punishable under Sections 420, 465, 467, 468, 471 and 120B of the Indian Penal Code (`IPC’ for short). It is mainly alleged in the FIR that the accused, with a malafide intention to grab the lands, hatched conspiracy till 1.7.2019 and even after knowing that they were allotted block no.6 instead of block no.59 at the time of consolidation and variation scheme by the government in the year 1968, prepared different and forged power of attorney and banakhat and on the basis of the same, the lands of survey/block no.59/1 old survey number 73/1, 73/2, 75 and 76 of mouje village Hanspura, Ta.Asarva, Dist.Ahmedabad purchased by complainant by sale deed which is non-agricultural land, the applicant herein showed the land as agricultural land and by preparing false and forged sale deed in his name, produced the same in the office of sub registrar Ahmedabd 13 as if it is a correct one and got the same registered. It is submitted that by doing so, the applicant has committed the offences as mentioned hereinabove under the provisions of the IPC. 3. Heard learned senior advocate Mr.Jal Unwala assisted by learned advocate Mr.Hardik Jani for the applicant, learned senior advocate Mr.N.D.Nanavaty assisted by learned advocate Mr.Vimal Purohit for original first informant and learned APP Mr.Raval for respondent-state. 3.1 Learned senior advocate Mr.Unwala appearing for the applicant mainly contended that for the alleged incident which had taken place during the period between July, 2010 to July, 2019, FIR is lodged on 10.8.2021. Thus, there is a delay in lodging the FIR and therefore the applicant be enlarged on anticipatory bail. It is further submitted that the applicant is aged about 64 years and therefore looking to his age also, this Court may exercise discretion in favour of the applicant. Thus, there is a delay in lodging the FIR and therefore the applicant be enlarged on anticipatory bail. It is further submitted that the applicant is aged about 64 years and therefore looking to his age also, this Court may exercise discretion in favour of the applicant. At this stage, learned senior advocate would submit that prima facie, the ingredients of the alleged offences punishable under Sections 465, 467, 468 and 471 of the IPC are not made out. There is no question of forgery of any document and therefore also, the applicant be enlarged on anticipatory bail. 3.2 Learned senior advocate further submitted that the applicant has purchased the land in question by registered sale deed from the co-accused and therefore the applicant is bonafide purchaser. Even the revenue proceedings are pending before the concerned revenue authorities and therefore the filing of the FIR against the applicant for the alleged offences is nothing but abuse of the process of the Court and therefore on this ground also, the applicant be enlarged on anticipatory bail. 3.3 Learned senior advocate further submitted about the history of the land in question and contended that the land bearing survey no.73/1 and 73/2 was originally belonging to Dhanaji Havji Kumbhar i.e. predecessor of Hargovan Dhana. The said land was in the name of Dhana Havji Kumbhar since 1947-48. After his death, the name of Bai Moti as guardian of minor Harvogan Dhana and Reva Dhana i.e. predecessors of the original accused nos.2 to 7 was mutated in the revenue record vide entry nos.815 and 816 on 25.12.1953. Therefore, the accused nos.2 to 7 being legal heirs of Hargovan Dhana and Reva Dhana were having right, title and interest in the said property. Thereafter, somewhere in the year 1963, the land bearing survey nos.73/1 and 73/2 came to be consolidated in block no.59. The revenue proceedings were initiated by the applicant and co-accused challenging the said entry as well as entry no.1492 dated 14.3.1996 mutated in the revenue record in relation to block no.59 (survey nos.73/1 and 73/2). It was found that the aforesaid entries were succession entries and mutated in the revenue records regarding names of legal heirs of Chakuji Thakore after his death and Gabhaji Thakore after his demise who had nothing to do with the property which belonged to the original accused nos.2 to 7. It was found that the aforesaid entries were succession entries and mutated in the revenue records regarding names of legal heirs of Chakuji Thakore after his death and Gabhaji Thakore after his demise who had nothing to do with the property which belonged to the original accused nos.2 to 7. The Deputy Collector rejected the RTS appeal vide order dated 17.2.2009 against which the revision was filed before the Collector. The said revision was also rejected vide order dated 16.6.2011. Against the said order passed by the Collector, the applicant and others approached learned SSRD by filing application no.105 of 2011. It is submitted that the SSRD, vide order dated 14.3.2017, quashed and set aside the orders passed by the Deputy Collector as well as the Collector and cancelled the entry numbers 1336 and 1492 and direction was given to enter the names of original occupiers i.e. Hiraben wd/o Revanbhai Dhanabhai and others for block no.59 (survey nos.73/1 and 73/2). Thus, it was ordered to delete the name of Chakuji Rajaji and others. Thus, the original accused nos.2 to 7 are legal owners of block no.59. 3.4 At this stage, learned senior advocate would further submit that pursuant to the order passed by the SSRD, entry no.2837 dated 11.1.2018 came to be mutated in the revenue record regarding the aforesaid order. The said entry was not certified by the Circle Officer by stating that the entry no.1203 dated 27.6.1968 was mutated in village form no.6 for consolidation and variation and block no.6 is allotted in lieu of survey nos.73/1 and 73/2. The said decision was challenged before the Deputy Collector by filing RTS appeal. During the proceedings, report from DILR was called for by the Deputy Collector in respect of the aforesaid land. The report was submitted by DILR on 13.5.2019. Thereafter, the Deputy Collector passed an order on 10.6.2019 and partly allowed the application of the accused and thereby quashed and set aside the order dated 12.4.2018 cancelling the order no.2837 further direction was given to certify entry no.2837 making correction in measurement. Thereafter, entry no.3167 dated 29.6.2019 came to be mutated in the revenue record with regard to block no.59/1 and 59/2. Thereafter, the applicant, as power of attorney holder of original accused nos.2 to 7, executed the registered sale deed dated 30.6.2019 in his favour for land bearing survey no.59 (old block no.59/1 and 59/2). Thereafter, entry no.3167 dated 29.6.2019 came to be mutated in the revenue record with regard to block no.59/1 and 59/2. Thereafter, the applicant, as power of attorney holder of original accused nos.2 to 7, executed the registered sale deed dated 30.6.2019 in his favour for land bearing survey no.59 (old block no.59/1 and 59/2). The said sale deed was executed on the basis of the power of attorney given by co-accused nos. 2 to 7 which was executed on 12.7.2010. Thereafter, the Deputy Collector, behind the back of the applicant and co-accused, stayed his own order on 9.8.2019. Against the said order, proceedings were initiated before the Collector by filing appeal. 3.5 Learned senior advocate thereafter contended that the complainant has given written complaint before the DCB police station against the present applicant and others and the investigating officer called for the report from the DILR vide communication dated 20.5.2021. Copy of the said communication of Police Inspector is placed on record at page no.53. It is submitted that the DILR submitted report on 1.6.2021 to the Police Inspector, copy of which is placed at page no.54. After referring to the relevant paragraphs, learned senior advocate submitted that the concerned DILR has informed the Police Inspector that after getting necessary information from the government, the record will be supplied to the Police Inspector. However, without waiting for the said details, the concerned Police Inspector has now registered the FIR. 3.6 Learned senior advocate Mr.Unwala further submits that before registration of the FIR, the applicant was apprehending that he will be arrested in connection with the written complaint given by the complainant and therefore the applicant filed application under Section 438 of the Code before the Sessions Court. The Sessions Court, vide order dated 9.6.2021 disposed off the said application by observing that the said application is premature. However, interim protection was granted to the applicant that after registration of the FIR and after issuance of notice, the applicant shall not be arrested for a period of ten days. Learned senior advocate, at this stage, further submits that in the present application also, this Court has granted interim protection to the applicant vide order dated 1.10.2021 and thereafter the applicant had remained present before the investigating agency and cooperated with the investigating agency and therefore the applicant be enlarged on anticipatory bail looking to the aforesaid aspect also. Learned senior advocate, at this stage, further submits that in the present application also, this Court has granted interim protection to the applicant vide order dated 1.10.2021 and thereafter the applicant had remained present before the investigating agency and cooperated with the investigating agency and therefore the applicant be enlarged on anticipatory bail looking to the aforesaid aspect also. 3.7 Learned senior advocate has referred to the order dated 6.8.2019 passed by this Court in Special Civil Application No.13512 of 2019. It is submitted that when the petition is filed before this Court, this Court has directed the revenue authorities not to alter the revenue record. Inspite of that, the Deputy Collector and Collector have passed the orders. It is also contended that now the Collector has passed an order dated 5.2.2022 during the pendency of this application against the present applicant and other accused, copy of the said order is placed on record at page no.352 and therefore the present applicant, on behalf of the co-accused, has filed Special Civil Application No.4657 of 2022. It is submitted that this Court has issued notice on 9.3.2022 after recording to the submissions canvassed on behalf of the present applicant. Copy of the said order is placed on record at page no.370. 3.8 Learned senior advocate lastly contended that looking to the facts and circumstances of the present case, custodial interrogation of the applicant is not required. Even otherwise, if this Court grants anticipatory bail to the applicant, then the said order is always subject to remand. Hence, it is open for the investigating agency to file application before the concerned Magistrate Court. Hence, looking to the over all facts and circumstances of the present case, this Court may exercise discretion in favour of the applicant. Learned senior advocate, therefore, urged that this application be allowed. 4. On the other hand, learned senior advocate Mr.N.D.Nanavaty has vehemently opposed this application. Learned senior advocate has referred to the averments made in paragraph 2.8 to 2.15 of the affidavit-in-reply filed by the original complainant and pointed out about the history of the land in question. It is submitted that the present applicant cannot be said to be bonafide purchaser of the land in question and in fact in connivance with the other co-accused, the applicant has committed alleged offences. It is submitted that the present applicant cannot be said to be bonafide purchaser of the land in question and in fact in connivance with the other co-accused, the applicant has committed alleged offences. It is submitted that the applicant is main accused who is the beneficiary of the transaction in question. It is submitted that the land of survey no.73/1 and 73/2 were originally running in the name of Dhana Havji Kumbhar. However, in the year 1961, under the tenancy proceedings, the lands of survey no.73/1 and 73/2 has been purchased by Chakuji Thakore as he has obtained the necessary certificate under the Tenancy Act. Thereafter, the aforesaid lands have been consolidated and given block no.59 in account no.27 of Chakuji Rajaji. At this stage, it is pointed out that one Shakraji Sendhaji was the owner of account no.101 survey no.29 along with one Mangaji Sendhaji. Both the aforesaid accounts of the aforesaid persons have been consolidated and account no.101 is given block no.63 which is allotted against old survey nos.75 and 76 and block no.71 is allotted against old survey no.86/1. Thereafter, variation scheme has come into force in 1968 and in variation, lands of survey no.73/1 and 73/2-block no.59 have been allotted account no.101 Mangaji and Shakraji from account no.27 whereas Chakuji Rajaji has been allotted old survey no.8-block no.6 in account no.27. The same has been mutated in the revenue record vide entry no.1200 dated 18.3.1968. It is also contended that after variation, form no.6 issued by consolidation officer dated 2.4.1973 in which Mangaji Sendhaji and Shakraji Sendhaji were allotted new block no.59 – survey no.73/1, 73/2, 75 and 76, form no.6 issued by consolidation officer dated 2.4.1973 in which Chakuji Rajaji was allotted new block no.8 of survey no.6 which reflects entry no.1203. 4.1 After referring to the aforesaid, learned senior advocate submitted that survey no.75, 76, 73/1 and 73/2 exchanged with new block no.59. Thus, Shakraji and Mangaji became the owner of the aforesaid land. The new block no.59 was exchanged with block no.6 (old survey no.8). Thus, the present complainant has purchased the land from legal heirs of Shakraji and Mangaji. The complainant has purchased the land in question by registered sale deed from the legal heirs of Shakraji Sendhaji and others on 25.7.2011 and paid the amount of consideration of Rs.3,72,87,900/-. The new block no.59 was exchanged with block no.6 (old survey no.8). Thus, the present complainant has purchased the land from legal heirs of Shakraji and Mangaji. The complainant has purchased the land in question by registered sale deed from the legal heirs of Shakraji Sendhaji and others on 25.7.2011 and paid the amount of consideration of Rs.3,72,87,900/-. Learned senior counsel thereafter submitted that though the original accused nos.2 to 7 are not the owners of the land in question, they executed power of attorney and banakhat in favour of the present applicant. In the banakhat itself, it is stated by the original accused no.2 to 7 that they are not the owners of the land in question. In spite of that, the present applicant has executed the sale deed as power of attorney holder of holder accused nos.2 to 7 and that too in favour of the applicant himself. It is further submitted that the applicant is also a confirming party. Learned senior advocate has referred to the sale deed, copy of the same is also placed on record. 4.2 Learned senior advocate, therefore urged that prima facie, the ingredients of the alleged offences punishable under Sections 420, 465, 467 and 120B of IPC are attracted. Learned senior advocate at this stage submitted that the prosecution has prima facie made out the case against the applicant and in the facts of the present case, custodial interrogation of the present applicant is required. Learned senior counsel further submitted that there are antecedents of the present applicant and therefore looking to the over all facts and circumstances of the present case, this Court may not entertain the present application. 4.3 Learned APP has also supported the submissions canvassed by learned senior advocate Mr.Nanavaty appearing for the original first informant. Learned APP submits that all the accused were aware and having knowledge that the accused nos. 2 to 7 are not owners of the land in question. In agreement to sale in paragraph 3, it has been specifically disclosed that accused nos.2 to 7 are not the owners of the land in question. It is further submitted that surprisingly the accused have executed the sale deed with regard to the agricultural land whereas the land in question was converted into non-agricultural land in the year 2013. Learned APP has also produced relevant papers of investigation. It is further submitted that surprisingly the accused have executed the sale deed with regard to the agricultural land whereas the land in question was converted into non-agricultural land in the year 2013. Learned APP has also produced relevant papers of investigation. It is submitted that even prior to registration of the FIR, statement of the original accused nos.2 to 7 have been recorded during the course of inquiry made pursuant to the written complaint given by the complainant and in the said statement also, the concerned accused have specifically stated that they are not the owner of the land in question and they are not having any right, title or interest in the land in question. It is further stated that the amount of consideration shown in the sale deed is also not received by them from the applicant. Learned APP further submitted that there are antecedents against the applicant. Learned APP submitted that there is a prima facie case made out by the prosecution against the applicant and if the applicant is enlarged on anticipatory bail, the prosecution is having apprehension that he will tamper with the evidence and will not be available at the time of trial. Learned APP thereafter contended that in the facts of the present case, custodial interrogation of the applicant is required. Learned APP therefore urged that this application be dismissed. 5. Having heard learned advocates for the parties and having gone through the material placed on record, it would emerge that in the FIR, serious allegations are levelled against the present applicant and other co-accused. If the agreement to sale executed by the original accused nos.2 to 7 in favour of the applicant is carefully examined, it is revealed that in the said agreement to sale itself, the concerned accused have stated that they are not the owners of the land in question. Inspite of that, the sale deed for the land in question has been executed by the applicant as power of attorney holder of the other co-accused in favour of himself and even the confirming party is the present applicant. From the record, it appears that the land bearing survey no.73/1 and 73/2 (account no.27) were originally of the ownership of Dhanaji Havji Kumbhar and another and tenant of the same land was one Chakuji Rajaji Thakore. From the record, it appears that the land bearing survey no.73/1 and 73/2 (account no.27) were originally of the ownership of Dhanaji Havji Kumbhar and another and tenant of the same land was one Chakuji Rajaji Thakore. Under the tenancy proceedings, the aforesaid lands bearing survey no.73/1 and 73/2 has been given to Chakuji Thakore. He has obtained necessary certificate under the Tenancy Act. The aforesaid lands have been consolidated and given block no.59 in account no.27 to Chakuji Rajaji. The necessary entries were made in the revenue record. Thereafter, the variation scheme has come into force in 1968 and lands bearing survey no.73/1 and 73/2 i.e. block no.59 has been exchanged with new block no.6 (old survey no.8). Necessary entries made in the revenue record on 27.6.1968. 6. At this stage, it is pertinent to note that one Shakraji Sendhaji was the owner of account no.101 – land bearing survey no.27. Similarly, one Manguji Sendhaji was also owner of account no.101. Both the accounts have been consolidated and account no.101 survey no.29 of account no.101 was converted into survey nos.75 and 76 which becomes new block no.63. At the same time, survey no.86/1 was converted into survey no.71. Now during the year 1969, because of variation and consolidation, survey no.75, 76, 73/1, 73/2 were exchanged with new block no.59 and therefore the aforesaid block no.59 survey no.73/1 and 73/2 have been allotted to account no.101 of Shakraji Sendhaji and Mangaji Sendhaji whereas Chakuji Rajaji has been allotted old survey no.8 block no.6 in account no.27. Thus, from the aforesaid facts of the case, it is clear that the original land bearing land no.73/1 and 73/2 i.e. new block no.59 were given to Shakraji and Mangaji. Even otherwise, it is the case of the complainant that original accused nos.2 to 7 – original owners of survey no.73/1 and 73/2 are not the owners of the aforesaid land as Chakuji Rajaji Thakore obtained the said land by paying price of the land under the Tenancy proceedings. Thus, Chakuji became the sole owner of the aforesaid lands. It is the case of the complainant that he has purchased the lands in question from Shakraji and others by registered sale deed in the year 2011 despite that the original respondent nos.2 to 7, though they are not the owners of the land in question, sold the land to the present applicant. It is the case of the complainant that he has purchased the lands in question from Shakraji and others by registered sale deed in the year 2011 despite that the original respondent nos.2 to 7, though they are not the owners of the land in question, sold the land to the present applicant. Once again, it is pertinent to note that the applicant himself has sold the land as power of attorney holder of accused no.2 to 7 to himself and as confirming party also, the applicant has signed. So in all the three capacities, i.e. purchaser, seller and confirming party, the applicant has signed the sale deed. Thus, in the facts of the present case, this Court is of the view that the prosecution has made out prima facie case against the applicant. No doubt, it is true that the revenue proceedings were filed before the concerned revenue authorities with regard to the various entries and the concerned DILR has also given opinion with regard to the land in question but fact remains that in the banakhat itself, the original accused nos.2 to 7 have stated that they are not the owners of the land in question and even during the course of inquiry made pursuant to the written complaint, the co-accused have stated that they are not the owners of the land in question. Further, though the land in question was converted as non-agricultural land in the year 2013, sale deed has been executed by the applicant for agricultural land. However, this Court is not deciding the right, title or interest of the applicant and/or other co-accused or the complainant in the present proceedings. 7. The prosecution has specifically contended that there are antecedents of the present applicant and the said aspect is not denied by the applicant. Further, in the facts of the present case, custodial interrogation of the applicant is required. Thus, in the facts and circumstances of the present case, this Court is not inclined to exercise discretion in favour of the applicant. Accordingly, this application is dismissed. Rule is discharged. Interim relief granted earlier stands vacated.