Madhya Pradesh High Court
Manish vs The State Of Madhya Pradesh on 27 August, 2020
Author: Shailendra Shukla
Bench: Shailendra Shukla
1
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
M.Cr.C. NO.27514/2020
(Manish vs State of Madhya Pradesh)
Indore, Dated 27.08.2020
Heard the learned counsel through video conferencing.
Shri A.S. Garg, learned Senior Advocate with Shri R.R.
Trivedi, Advocate for the applicant.
Ms. Drishti Rawal, Public Prosecutor for Non-
applicant/State.
Shri Prateek Maheshwari, Advocate for the objector.
ORDER
Submissions were made on anticipatory bail application filed under Section 438 of Cr.PC. The applicant is being implicated in Crime No.246/2020, registered at Police Station- Sanawad District-Khargone (MP) for allegedly committed offence under Sections 420, 465, 467, 447, 427, 504 and 120B IPC.
At the outset, objections were raised by the learned counsel for the applicant submitting that counsel for objector does not have any right to make any oral submissions. He has cited provision of Section 301(2) of Cr.PC.
Considered.
The aforesaid provision is in relation to the stage of prosecution whereas, presently the bail application is being argued. Hence, the objection is set aside.
In the application, the facts of the case registered against the applicant have been delineated.
It is submitted that complainant Deepak owned land bearing survey Nos.532/11 and 532/12 at Sanawad, adjacent to which the land of the family members of the present 2 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. NO.27514/2020 (Manish vs State of Madhya Pradesh) applicant bearing survey Nos.531/1, 531/3 and 531/4 are situated. The complainant had alleged that while he was constructing his boundary wall on his land, but present applicant along with co-accused Vijay dismantled 24 pillars of the boundary wall, causing wrongful loss to the complainant. It was submitted by the complainant that Vijay has instituted a revenue case before SDM in which false description regarding the land was given and Vijay had executed forged documents.
The grounds which have been taken in the application are that the real uncle of applicant namely Vijay raised a complaint before SDM Badwah regarding illegal construction and encroachment over the lands belonging to the family of the applicant by the complainant. In the aforesaid case, SDM ordered demarcation of the land. During the pendency of this complaint before SDM, complainant Deepak lodged a police report against the present applicant and his uncle Vijay, which was registered for a non-cognizable offence under Section 155 of Cr.P.C for the offence punishable under Section 427 of IPC. The present applicant was unaware of the fact of the proceedings going on before SDM Badwah. The present applicant submits that uncle Vijay, under some unknown circumstances came to execute a compromise with Deepak Holkar, as a result of which proceedings before SDM came to an end. Even after closure of proceedings, the SDM recorded the statement of the father of the applicant. Immediately thereafter, when the entire matter came to the knowledge of the father of the present applicant namely Ashok Adwal, he 3 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. NO.27514/2020 (Manish vs State of Madhya Pradesh) instituted a civil suit against Deepak Holkar, so also against the uncle of the present applicant namely Vijay Adwal. Then Deepak Holkar, in order to settle score and to mount unnecessary pressure over the present applicant and his family members, filed an application under Section 156(3) of Cr.P.C on 20.12.2019 before learned JMFC Sanawad. The SHO Sanawad submitted his report stating that the dispute is purely of civil nature and both the parties were advised to approach competent Court. Looking to this report, the learned Magistrate vide order dated 1.2.2020 dismissed the said application and the revision preferred by Deepak Holkar has also been dismissed as not pressed. Thus, the order of JMFC became final. After dismissal of the said application, Deepak Holkar again approached police station and police Sanawad on the basis of same allegation of like nature, which was submitted before JMFC has registered the present case against the applicant. It has been submitted that civil suit between parties still pending before Civil Court and dispute with respect to the lands are sub-judice and therefore, registration of FIR is illegal as attempt has been made to give a colour of criminal case to a civil dispute. Such registration of FIR is malpractice and malafide and sheer abuse of process of law, which is not sustainable. It has been further submitted that a prima facie reading of the content of FIR does not reveal any offence being committed by the present applicant and no ingredients of any offence are attracted. Hence, anticipatory bail be granted.
In his objection, the objector Deepak Holkar has stated 4 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. NO.27514/2020 (Manish vs State of Madhya Pradesh) that the applicant and his family members have conspired and committed trespass, mischief, fraud, cheat, forgery and have been continuously threatening and blackmailing the complainant with an intent to illegally take and grab the possession of valuable land belonging to the complainant and have tended to the colony project of the complainant. It has been stated that complainant was developing the suit land into a residential colony on his own property after completing of all legal formalities. When he started development by constructing boundary wall, the applicant along with other accused persons tried to interrupt the work and threatened the complainant claiming the disputed area to be their own land. With the help of JCB machine, the applicant sabotaged more than 25 concrete columns developed by the complainant for the purpose of boundary wall. The accused persons not only caused huge damage and loss to the complainant but further blackmailed complainant to extort money and land from the complainant. When the complainant refused to pay the extortion money, then a false complaint before SDO Badwah was lodged by the applicant in which it was stated that it was the complainant who was erecting the boundary wall on the land of the applicant. The SDO passed an order in which it was mentioned that the construction was being done by complainant on his own land. The complainant not only committed fraud with the Revenue Department in regard to property belonging to the complainant but also cheated the complainant by entering into a fraudulent compromise in which 5 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. NO.27514/2020 (Manish vs State of Madhya Pradesh) Vijay Kumar claimed the lands of various owners to be his own, whereas, Ashok Adwal and the present applicant kept on threatening the complainant to extort money from him at several times. On the basis of such complaint, a detailed FIR has been registered and investigation is in progress. Thus, complainant was cheated by accused persons who are land mafia and they have also deceived the Government Authorities and administration including SDO Revenue, Badwah and have given false facts in the Court.
The complainant also states that the accused persons have been selling the Government land and have caused huge loss to the Government, that the applicant is influential person, that the applicant and his family members have themselves developed illegal colony and have cheated plot holders and if applicant is released on anticipatory bail then, he would abscond and life of person of the present complainant would be in danger. For the aforesaid reasons, the applicant has been sought to be rejected.
Number of documents have been filed by both the parties.
Heard both the parties as well as learned public prosecutor for State.
It does appear that the lands of the applicant and his family members are adjoining. In the first place, the uncle of applicant, Vijay filed a complaint before SDO Badwah in which it was alleged that the complainant Deepak is constructing a Nullah over the lands of Vijay. The objector Vijay submitted a 6 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. NO.27514/2020 (Manish vs State of Madhya Pradesh) reply in which he submitted that he is making construction after demarcation and construction is being made on his own land. Thereafter, SDO vide order dated 25.4.2019 in his order concluded that Deepak is constructing Nullah on his land, ie. Suvey nos.532/11 and 532/12 and that he has not made any encroachment over the land of the applicant Vijay. He also stated that during demarcation some land of the non-applicant, ie., Deepak has been found to be in survey Nos.531/4 and 531/1, which is the land of the applicant and both the parties are free to institute a civil suit in this respect. With this conclusion, the complaint filed by Vijay was dismissed.
It appears that after rejection of complaint of Vijay, compromise was executed between Vijay and Deepak Holkar, the complainant in which it was mentioned that both are neighbour agriculturists and inadvertently due to activities of Vijay, the nullah constructed by complainant has been damaged regarding which Vijay would pay damages to complainant and that both parties shall construct boundaries on their own lands. In this compromise application, Vijay showed himself to be the owner of Survey Nos.531/4, 531/1 and 531/3. An affidavit was also filed by Vijay Adwal in support of the compromise application. The SDO, Badwaha thereafter on 03.05.2019 recorded the statements of Ashok in which he stated that the compromise has indeed been affected between Deepak and deponent-Ashok.
It is to be mentioned that after SDO passed the order in favour of complainant-Deepak. Deepak had lodged a complaint 7 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. NO.27514/2020 (Manish vs State of Madhya Pradesh) before Tehsildar in which he had mentioned that on about 3:00 am in the night the applicant-Manish and Vijay had run a JCB Machine over the nullah being constructed by the complainant- Deepak and had broken the columns erected by the complainant.
It was after filing of this complaint that the compromise took place on 02.05.2019 and statements of Ashok were recorded on 03.05.2019. However, Ashok thereafter filed a civil suit on 07.05.2019 against the complainant-Deepak and Vijay. It was stated that the complainant had encroached the land of Vijay.
Deepak then filed an application under Section 156(3) of the Code of Criminal Procedure, 1973 on 20.12.2019.
The report of SHO was obtained on 23.12.2019 and JMFC vide order dated 01.02.2020 dismissed the application of complainant-Deepak observing that Deepak has not been able to prove the conspiracy and cheating on the part of co-accused persons and no offence appears to have been committed by the accused.
The complainant-Deepak, thereafter, preferred a revision application against the aforesaid order and, in the meanwhile, he has filed the second complaint against the present applicant and his family members on 14.06.2020 which was registered by the police on 23.06.2020 and revision application was withdrawn by applicant on this account.
The main objection by learned counsel for the applicant is that once the complaint under Section 156(3) of Criminal 8 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. NO.27514/2020 (Manish vs State of Madhya Pradesh) Procedure Code was dismissed by JMFC, then how on the same facts the present FIR has been filed and this had happened when new SHO has taken over from the previous one. It has been submitted that the civil suit is already pending in the matter. It is also submitted that on the same facts the second FIR was not maintainable, that the complainant himself has withdrawn the revision application.
It is also stated that due to dispute in respect of boundary, the aforesaid situation has arisen and the applicant- Manish, at the most is liable to be prosecuted under Section 427 IPC regarding which the non-cognizable office has already been registered.
Per contra, learned counsel for the objector submits that once having fraudulently obtained the signature of complainant on a compromise document, the applicant and other family members have turned around and again raised a dispute and hence anticipatory bail be not granted under such circumstances.
Considered the submissions and perused the documents. One can see that the allegations made in the application under Section 156(3) of Criminal Procedure Code are akin to those made in the second FIR registered on 23.06.2020 based on written complaint dated 14.06.2020. In this written application, it has been mentioned that Vijay Adwal had stated that the land in question was belonging to him in the forged compromise documents. In the earlier complaint filed under Section 156(3) of Criminal Procedure Code also, it has been 9 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. NO.27514/2020 (Manish vs State of Madhya Pradesh) mentioned that Vijay had hidden the true facts in conspiracy with other co-accused persons and had stated that in the compromise application that the whole land in respect of survey nos.531/4, 531/1 and 531/1 belongs to Vijay only. Thus, the sum and substance of both the complaints' are same.
Once the order dated 25.04.2019 was passed and the application of complainant was registered then the proper recourse would have been to file a revision application. However what complainant did was that he filed a second written complaint with there being no change in the facts and circumstances of the case. This time, however, the FIR was registered.
In view of the aforesaid situation, when on the same facts, no case was considered to be made out by JMFC on the same facts, the FIR was registered by the concerned SHO without paying heed to earlier order passed by JMFC, which was not proper. It can also be seen that complainant has termed the aforesaid compromise documents to be forged, however, in his complaint made to SDO, Badwaha on 09.05.2019, Deepak himself has admitted to have received an amount of Rs.1,50,000/- as damages in terms of compromise.
It can also be seen that before entering into compromise with Vijay, Deepak who was his neighbour ought to have determined as to who are the owners of aforesaid land.
It appears that after filing of civil suit by Ashok, Deepak has resorted to filing of an application under Section 156(3) of Criminal Procedure Code.
10HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. NO.27514/2020 (Manish vs State of Madhya Pradesh) In the meanwhile, learned counsel for the objector has filed certain documents on 24.08.2020 which were perused and these are Annexures O/5 and O/6. However, the same do not come to the rescue of complainant/objector after duly considering them.
After due consideration of the material available on record and also the submissions made by both the learned counsel as also the submissions made by learned counsel for the State, but without making any opinion on merits of the case, the application filed by the applicant-Manish is allowed and it is directed that in the event of arrest of applicant in connection with the aforesaid crime number, the applicant shall be released on bail upon his furnishing a personal bond in the sum of Rs.1,00,000/-(One Lakh) with one local solvent surety in the like amount to the satisfaction of Arresting Officer. The applicant shall appear before the Investigating Officer (IO) on 07.09.2020 and shall assist the IO in the investigation process and he shall continue to do so whenever it was required by the IO. This order shall be governed by the conditions No.1 to 3 of sub-section (2) of Section 438 of Criminal Procedure Code, 1973.
With the aforesaid, this application stands allowed and is disposed of, in above terms.
Certified copy as per Rules.
(SHAILENDRA SHUKLA) JUDGE Arun/-
Digitally signed by ARUN NAIR Date: 2020.08.28 16:30:55 +05'30'