Gujarat High Court
Altafkhan Sardarkhan Pathan vs State Of Gujarat on 12 July, 2024
NEUTRAL CITATION
R/CR.MA/11984/2024 ORDER DATED: 12/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR SUCCESSIVE ANTICIPATORY
BAIL) NO. 11984 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 11986 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 11987 of 2024
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ALTAFKHAN SARDARKHAN PATHAN
Versus
STATE OF GUJARAT
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Appearance:
MR AV NAIR(5602) for the Applicant(s) No. 1
MR SAMIR B GOGDA(11306) for the Applicant(s) No. 1
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 12/07/2024
ORAL ORDER
1. By way of the present applications under Section 438 of the Code of Criminal Procedure, 1973, all the three applicants - accused have prayed for enlarging them on anticipatory bail in connection with the common FIR being C .R. No. 1 1 1 9 1 0 4 8 2 1 1 2 4 4 o f 2 0 2 1 registered with Sarkhej Police Station, Ahmedabad City for the offences punishable under Sections 3, 4(3), 5(a), 5(c), 5(d), 5(e) of the Gujarat Land Grabbing (Prohibition) Act.
2. Heard learned Advocate Mr.A.V.Nair for the Applicants and learned APP Mr.Manan Mehta for the Respondent - State.
2.1 Rule. Learned APP waives service of Rule on behalf of the Respondent State.
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3. Learned Advocate for the applicants has submitted that earlier the applicants had preferred Criminal Misc. Application No.12995 of 2021. The said application came to be disposed of vide order dated 9.8.2021, as pending the said application, the applicants had also filed Special Criminal Application challenging the vires of the Land Grabbing Act and the applicants were protected in the said Special Criminal Application. The said Special Criminal Application came to be disposed of by the Co-ordinate Bench of this court vide its judgment and order dated 9.5.2024 and protection granted in favour of the applicants had been withdrawn. This court vide order dated 9.8.2021 had granted liberty in favour of the present applicants to file afresh application directly before this court in case of any difficulty. Now, since the protection granted to the applicants is no more in existence because of the disposal of the Special Criminal Application, the applicants are constrained to file the applications before this court.
3.1 Learned advocate for the applicant has further submitted that the land in question was falling part of Bhoodan movement and the same came to be allotted to the present applicants from their forefathers under the said movement. The present applicants had also transferred the parcel of land belonging to them as per the requirement of the Bhoodan scheme. He submitted that in the year 2016, as per the revenue record, the land in question had vested in the State Government because of breach of certain conditions. The said action of vesting the land in the State Government has been challenged by the present applicants by filing separate Special Criminal Application and the same is still pending.
Page 2 of 7 Downloaded on : Fri Jul 12 22:47:07 IST 2024NEUTRAL CITATION R/CR.MA/11984/2024 ORDER DATED: 12/07/2024 undefined 3.2 Learned advocate for the applicant has also further submitted that the present FIRs have been lodged by the first informants with a mala fide intention, though the parties were litigating before several authorities as regards the land in question. He further submitted that while the present applicants were protected, the applicants had appeared before the investigating officer and have furnished all the necessary details to the investigating officer and hence, the custodial interrogation of the applicants is not required for the purpose of investigation. He submitted that the revenue authorities had initiated proceedings against the present applicants for eviction. However, upon Prohibition of Land Grabbing Act having come into force, the said proceedings were dropped by the revenue authorities. Learned Advocate therefore submitted that the present applications may be allowed and the Applicants may be enlarged on anticipatory bail subject to suitable conditions.
4. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. He submitted that the present applicants along with the co- accused had unlawfully occupied huge chunk of land which had vested in the State Government in the year 2016. The applicants herein had, after the land had vested in the State Government, dealt with the said parcels of land, commercially and third-party interests were created on these lands. He also submitted that the applicants herein have put up permanent structures on the disputed land and thousands of houses and shops have been built up on the disputed land. Learned APP therefore submitted that the present Application may be dismissed.
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5. Heard the arguments advanced by the learned advocates for the parties and perused the material placed on record. At the outset it is required to be noted that earlier the applicants have preferred Criminal Misc. Application No.12995 of 2021 seeking relief of anticipatory bail, which has been disposed of by the Co-ordinate Bench of this court vide order dated 9.8.2021, since the applicants herein had already filed Special Criminal Application No.6697 of 2021 and other cognate matters challenging the vires of Land Grabbing Act. This court vide interim orders passed in these matters, had stayed the further proceedings of the present FIR. These Special Criminal Applications came to be dismissed by this court only recently on 9.5.2024 and the protection granted to the applicants had been vacated. This court while disposing of the earlier applications, had granted liberty to the applicants to file afresh application directly before this court in case of difficulty and that is how the present applications have been filed by the applicants.
5.1 It is the case on part of the prosecution that the present applicants had been unlawfully occupying the disputed land which had been vested in the State Government in the year 2016 as there was breach of certain conditions. So far as the aspect of vesting of the land in the State Government is concerned, the said aspect has been challenged by the present applicants by filing Special Civil Application before this court and the same is still pending. From the record it also appears that certain proceedings with regard to the disputed land had also been filed before the Gujarat Revenue Tribunal. Thus, a long drawn battle appears to be going on between the parties qua the disputed Page 4 of 7 Downloaded on : Fri Jul 12 22:47:07 IST 2024 NEUTRAL CITATION R/CR.MA/11984/2024 ORDER DATED: 12/07/2024 undefined land and the present applicants seem to be occupying the disputed lands since last few years. The record also indicates that the revenue authorities had also initiated eviction proceedings against the present applicants and those proceedings came to be dropped with an intention to take recourse to newly enacted Land Grabbing Act.
5.2 It appears from the record that while the present applicants were protected pursuant to the interim orders passed in Special Criminal Application No.6697 of 2021 and other allied matters. The applicants have already appeared before the investigating officers and all the necessary details have already been furnished by them to the investigating agency. Considering the same, the present Application deserves to be allowed.
6. This Court has considered following aspects,
(a) as per catena of decisions of Hon'ble Supreme Court there are mainly two factors which are required to be considered by this court;
(i) prima facie case
(ii) requirement of accused for custodial interrogation.
Therefore, in the facts and circumstances of the present case, this court is inclined to consider the case of the applicants.
7. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon'ble Apex Court Page 5 of 7 Downloaded on : Fri Jul 12 22:47:07 IST 2024 NEUTRAL CITATION R/CR.MA/11984/2024 ORDER DATED: 12/07/2024 undefined reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565. Further, this Court has also taken into consideration the ratio laid down in the case of Sushila Aggarwal and Ors. v. State (NCT of Delhi) and Anr. in Special Leave Petition No. 7281-7282/2017 dated 29.01.2020.
7.1 This court has also considered the judgment in the case of Arnesh Kumar v. State of Bihar reported in (2014) 8 SCC 273, wherein the Hon'ble Apex Court has observe that whenever there is punishment of 7 years, then the court would be liberal to exercise the discretion. Further, by exercising the discretion under Section 438 Cr.P.C, the doors of remand by the Investigating Officer is open and therefore also this court is inclined to exercise powers under Section 438 of Cr.P.C.
8 In the result, the present applications are allowed. The applicants are ordered to be released on anticipatory bail in the event of their arrest in connection with a F I R be i ng C . R. No . 1 1 1 9 1 0 4 8 2 1 1 2 4 4 o f 2 0 2 1 registered wit h Sarkhej Police Station, Ahmedabad City for the offe nce s puni sha bl e unde r S ec tions 3, 4(3), 5(a), 5(c), 5(d), 5(e) of the Gujarat Land Grabbing (Prohibition) Act, on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) each with one surety of like amount on the following conditions;
(a) shall cooperate with the investigation and make available for interrogation whenever required;
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(b) shall remain present at concerned Police Station on 1 6 . 7 . 2 0 2 4 between 12.00 Noon 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 address to the investigating officer and the court concerned and shall not change his residence 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 passport shall deposit the same before the concerned trial court within a week; and
9. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.
10. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(M. R. MENGDEY,J) Manshi Page 7 of 7 Downloaded on : Fri Jul 12 22:47:07 IST 2024