Gujarat High Court
Mohemedyasin Nagori vs State Of Gujarat on 22 March, 2022
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/12068/2021 ORDER DATED: 22/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12068 of 2021
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MOHEMEDYASIN NAGORI
Versus
STATE OF GUJARAT
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Appearance:
MR HARSHIT S TOLIA(2708) for the Applicant(s) No. 1
MRS KRINA CALLA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 22/03/2022
ORAL ORDER
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants - accused have prayed for anticipatory bail in connection with the FIR being C.R. No. 11191048211244 of 2021 registered with Sarkhej Police Station, Dist. Ahmedabad for the offences under Sections 3, 4(3), 5(a), 5(c), 5(d), 5(e) of the Gujarat Land Grabbing (Prohibition) Act, 2020.
2. The facts and circumstances giving rise to file present application is that the land bearing survey no. 06, admeasuring 0-78-92 H-RA- Sq.mt of Fatehvadi, Tal.: Vejalpur, is government land. The accused named in the FIR, have illegally made encroachment upon the land and in connivance with each other, constructed residential and commercial construction for their monetary benefits, whereby, they have committed the offence under Sections 3, 4(3), 5(a) , 5(c) and 5(d) of the Gujarat Land Grabbing (Prohibition) Act, 2020.
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3. In the FIR, 17 persons arraigned as an accused. Out of 17 persons, the applicant herein Mohemedyasin Nagori, has been arraigned as accused no. 14.
4. The applicant herein moved an application for anticipatory bail before the Sessions Court, Ahmedabad, which came to be rejected vide its order dated 06.07.2021.
5. This Court has heard the learned counsel H.S. Tolia for the applicant and learned APP Mrs. Krina Calla for the respondent State.
6. Mr. Tolia, learned counsel submitted that;
(i) The provisions of the Act 2020 came into force on 29.08.2020 and as per the prosecution case, the alleged transactions was prior to the Act came into force and therefore, the provisions of the Act having the prospective effect, no offence as alleged under the Act can be said to have been committed by the applicant;
(ii) Referring to Section 2(e) of the Act, it was submitted that the case of the applicant does not fall under the definition of 'Land Grabbing' as defined;
(iii) On factual aspect, it was submitted that at relevant point of time, one Babiben and 13 others, were in the possession of the land and sold it to one Ilyasbhai by registered sale deed. Said Ilyasbhai at present residing at Africa. He executed power of attorney in favour of Mohemedhanif Ibrahimbhai Page 2 of 6 Downloaded on : Sun Mar 27 20:55:24 IST 2022 R/CR.MA/12068/2021 ORDER DATED: 22/03/2022 Chaudhary and Abdul Rahim Pathan, and in turn, they have entered into transaction with Imtiyashkhan Firozkhan. In this background facts, it was submitted that the applicant did not have played any role to sale or possess or the act of construction as alleged, with the disputed land;
(iv) The applicant herein arraigned as an accused mainly on the ground that earlier in the year 2019, he was served with notice by revenue authority under Section 61 of the Land Revenue Code;
In view of the aforesaid contentions, the learned counsel submitted that the virus of the Act is challenged by the co- accused and matter is pending before the Division Bench of this Court and considering the role of the applicant, and pursuant to order passed by this Court, the applicant herein was remained present before the Investigating Officer and cooperated with the investigation, his custodial interrogation, now is not necessary. Therefore, it is not imperative to arrest the applicant under the Act. Thus, therefore, he urged that the case is made out for exercise of powers of this Court for granting anticipatory bail.
7. Per contra, learned APP reiterating the report submitted by the Investigating Officer, vehemently opposed the application, contending that the applicant herein made encroachment over the government land and as a part of conspiracy, the land in question being sold off to third parties by constructing residential and commercial premises. In these background facts, the learned APP submitted that the offence is grave, serious and affecting society at Page 3 of 6 Downloaded on : Sun Mar 27 20:55:24 IST 2022 R/CR.MA/12068/2021 ORDER DATED: 22/03/2022 large and considering the role attributable to applicant herein, his custodian interrogation is necessary for effective investigation and therefore, the application having no any merits, deserves to be dismissed.
8. Having heard the learned counsel for the respective parties and upon perusal of the material placed on record, this Court is of the prima-facie view that except notice under Section 61 of the Bombay Land Revenue Code, nothing brought on record to indicate that the applicant herein was involved in selling the disputed land by way of residential and commercial construction. The applicant herein remained present before the Investigating Officer. In these background facts, considering the allegations made against the applicant herein, without expressing anything on the merits, case is made out for exercising powers to grant anticipatory bail.
9. Considering the facts and circumstances of the case and the role attributed to the present applicant in the alleged offence, I find no reason to decline pre-arrest bail to the applicants. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No. 11191048211244 of 2021 registered with Sarkhej Police Station, Dist. Ahmedabad, on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions:
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;Page 4 of 6 Downloaded on : Sun Mar 27 20:55:24 IST 2022
R/CR.MA/12068/2021 ORDER DATED: 22/03/2022
(b) shall remain present at concerned Police Station on 30.03.2022 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 address to the investigating officer and the court concerned and shall not change their residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the Trial Court within a week; and
(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;
10.Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining 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 learned Magistrate to consider such a request in accordance with law. It is clarified that Page 5 of 6 Downloaded on : Sun Mar 27 20:55:24 IST 2022 R/CR.MA/12068/2021 ORDER DATED: 22/03/2022 the applicant, 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 Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.
12.Rule is made absolute to the aforesaid extent. Direct service is permitted.
(ILESH J. VORA,J) P.S. JOSHI Page 6 of 6 Downloaded on : Sun Mar 27 20:55:24 IST 2022