Kerala High Court
Jimmy Zacharia vs The State Of Kerala on 20 December, 2019
Equivalent citations: AIRONLINE 2019 KER 739
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941
Bail Appl..No.6700 OF 2019
CRIME NO.355/2019 OF Santhanpara Police Station , Idukki
PETITIONER/S:
1 JIMMY ZACHARIA,
AGED 55 YEARS
S/O. ZACHARIA VELLOOKUNNEL, VELLOOKUNNEL HOUSE,
CHINNAKKANAL P.O., IDUKKI DISTRICT
2 MARIYA DAS,
S/O. MUTHU, PERIYAKANAL ESTATE, CHINNAKKANAL P.O.,
IDUKKI DISTRICT
3 THOMAS MICHEAL,
KALLIVAYALIL, SURYANELLI, CHENNAKKANAL P.O., IDUKKI
DISTRICT.
BY ADVS.
SRI.DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
RESPONDENT/S:
THE STATE OF KERALA,
REPRESENTED BY THE INSPECTOR OF POLICE, SANTHANPARA
POLICE STATION, IDUKKI DISTRICT, THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682
031
R1 BY GOVERNMENT PLEADER
OTHER PRESENT:
Y. JAFAR KHAN PP
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
20.12.2019, ALONG WITH Bail Appl..6794/2019, Bail
Appl..6977/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941
Bail Appl..No.6794 OF 2019
CRIME NO.355/2019 OF Santhanpara Police Station , Idukki
PETITIONER/S:
BRO.THOMAS.K.K
AGED 60 YEARS
S/O.KURIAKOSE,INSTITUTE OF BROTHERS OF ST.GABRIEL
CHINNAKANAL, SANTHANPARA, IDUKKI DISTRICT.
BY ADVS.
SRI.DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
RESPONDENT/S:
THE STATTE OF KERALA
REPRESENTED BY THE INSPECTOR OF POLICE, SANTHANPARA
POLICE STATION, IDUKKI DISTRICT, THROUGH HE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
R1 BY GOVERNMENT PLEADER
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
20.12.2019, ALONG WITH Bail Appl..6700/2019, Bail
Appl..6977/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941
Bail Appl..No.6977 OF 2019
CRIME NO.355/2019 OF Santhanpara Police Station , Idukki
PETITIONER/S:
BRO.FRANCIS XAVIER
AGED 39 YEARS
S/O. SACKARIYAS, PRINCIPAL, MONTFORT SCHOOL,
CHINNAKANAL,
SANTHANPARA, IDUKKI DISTRICT.
BY ADVS.
SRI.DEEPU THANKAN
SMT.UMMUL FIDA
SMT.LAKSHMI SREEDHAR
RESPONDENT/S:
THE STATE OF KERALA
REPRESENTED BY THE INSPECTOR OF PO LICE,
SANTHANPARA POLICE STATION, IDUKKI DISTRICT.,
THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R1 BY GOVERNMENT PLEADER
THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON
20.12.2019, ALONG WITH Bail Appl..6700/2019, Bail
Appl..6794/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.Nos.6700,6794,6977-2019
..4..
ORDER
These applications are filed under Section 438 of the Code of Criminal Procedure.
2. The applicants in B.A.No.6700 of 2019 are the accused Nos. 1, 4 and 5, the applicant in B.A.No.6794 of 2019 is the accused No. 3 and the applicant in B.A.No. 6977 of 2019 is the accused No.6 in Crime No.355 of 2019 of the Santhanpara Police Station. The aforesaid Crime has been registered on 02.09.2019 under Sections 7(a) and (b) of the Kerala Land Conservancy Act, 1957 and under Sections 465, 466, 468, 471 and 420 r/w. Section 34 of the IPC on a complaint lodged by the Tahsildar, Udumpanchola.
3. The prosecution allegation is that the accused Nos. 1 to 3 forged documents pertaining to land having an extent of 11.50 Acres comprised in Sy.No.20/1 of Chinnakkanal Village with intent to make unlawful gain and consequent loss to the Government. It is further alleged that the accused Nos. 3 to 6 in furtherance of their common B.A.Nos.6700,6794,6977-2019 ..5..
intention to defraud the State and to usurp property, executed a Power of Attorney in favour of 1 st accused and authorised him to execute document Nos. 236 of 2009, 237 of 2009 and 238 of 2009 in favour of the 2nd accused, M/s.Apotheosis Infrastructure Pvt. Ltd.
4. Sri.Deepu Thankan, the learned counsel appearing for the applicants in all these cases, submitted that there is no merit in the accusations levelled against the applicants. According to the learned counsel, the 6th accused is the Principal, Montfort School, Chinnakkanal and the said school is functioning under the Institute of Brothers of St. Gabriel, the 3rd accused in the aforesaid Crime. He would urge that in tune with the provisions of the Land Assignment Act, the State had issued Patta to various persons, which include the 4 th accused, in respect of various items of property as is evidenced from Annexure-A2 to A6. The properties covered under the aforesaid Patta were purchased by the 3rd accused. Prior to the purchase of the property as aforesaid, the genuineness of Annexures-A2 to A6 were verified through the Tahsildar, Udumpanchola and permission to execute sale deed were obtained from him. Reliance is placed on Annexures-A7 to A12 to substantiate his contention. Later, the properties were transferred in B.A.Nos.6700,6794,6977-2019 ..6..
favour of the 2nd accused as per sale deed Nos. 236 of 2009, 237 of 2009 and 238 of 2009 of the S.R.O., Rajakumari. When mutation was not effected by the Village Officer, the 2 nd accused approached this Court and by judgment dated 21.05.2015 in W.P.(C) No.16390 of 2013, a Single Judge of this Court had ordered the Village Officer, Chinnakkanal, to effect mutation of the properties covered by the sale deeds within a period of two weeks from the date of receipt of a copy of this judgment. However, it was clarified that mutation will not stand in the way of the respondent State from proceeding against the 2 nd accused, if the State is able to establish that the property covered under the sale deeds are Government Puramboke lands. The said judgment was taken up in appeal but a Division Bench of this Court by judgment dated 09.01.2019 in W.A.No.1630 of 2015 refused to interfere with the judgment without prejudice to the rights reserved to the Government in the impugned judgment. The Tahsildar, Udumpanchola was ordered to ensure that the directions of the learned Single Judge are complied with, within a time frame.
5. Sri.Deepu Thankan would further submit that instead of complying with the directions, the Government proceeded to pass order B.A.Nos.6700,6794,6977-2019 ..7..
dated 31.05.2019 and ordered for the registration of a crime. He would contend that without initiating appropriate steps to cancel the Patta by recourse to Rule 8 of the Land Assignment Rules, 1964, the Government was not justified in ordering for registration of a crime. According to the learned counsel, the issues have been agitated by the parties before this Court and even before the writ court, the contentions, which led to the registration of the crime, was not highlighted by the State. According to the learned counsel, if the applicants are arrested and detained on these allegations, which are without basis, they would be subjected to gross ignominy and hardship.
6. Serious objection is raised by the Sri.Jafar Khan Y., the learned Government Pleader, who appeared for the State. He would contend that certain persons, which include the accused Nos. 3 to 6, had encroached into large extent of valuable Government land in Idukki District for their illegal benefits. According to the learned Government Pleader, pursuant to the judgment of this Court in Writ Appeal, the Government issued Annexure-R1(d) order and constituted a seven member committee headed by the Sub Collector, Devikulam to look into the allegation regarding the creation of false documents including B.A.Nos.6700,6794,6977-2019 ..8..
fabricated patta and also the allegation regarding certain acts committed by revenue officials in issuing certain certificates. The said committee conducted a detailed enquiry and filed a report to the Government on 20.05.2019. In the said report, the Committee has highlighted that there were wide spread illegality and irregularities regarding the lands in Chinnakkanal village. Large extent of property was encroached by various persons by creating fabricated documents and several multi-storied buildings had been put up. The execution of document Nos. 236 of 2009, 237 of 2009 and 238 of 2009 were also probed and it was found that the documents are fabricated and the property mentioned in the said documents does not exists. It is also found that the family of the 1st accused have manipulated the Thandaper Register in Chinnakkanal Village using different addresses. The Committee has recommended a detailed enquiry with regard to the properties possessed and transferred by the family of the 1 st accused. It is based on the recommendations that the Government had issued order dated 03.05.2019 as a preliminary step to implement the said report. In terms of the directions, the Tahsildar has also issued notices to the 2nd accused to produce documents pertaining to the sale deeds, B.A.Nos.6700,6794,6977-2019 ..9..
as per which certain items of properties were purchased by them. It is submitted that when notices were issued, the accused had filed separate writ petitions before this Court as W.P.(C) Nos. 26516 of 2019, 26893 of 2019 and 24516 of 2019 and this Court has granted an order of interim stay of all further proceedings in two of the Writ Petitions.
7. I have considered the submissions advanced and have perused the entire records. What is discernible from the submissions advanced by both sides is that patta was issued by the Government to several people for cultivation and residential purposes in tune with the provisions of the Land Assignment Act decades back. The 4 th accused purchased certain items of property from the pattadhars. It is also borne out from the documents produced that a person by name Savio Gonsalves purchased an item of property from the 4 th accused. Later, the 1st accused in his capacity as the Power of Attorney Holder executed three sale deeds in favour of the 2nd accused. The records also reveal that certificate of genuineness and permission to execute sale deeds were also issued by the Revenue authorities prior to the execution of the sale deed. It was thereafter that the properties were transferred in favour of the 2nd accused. It is borne out from the judgment in W.P.(C) B.A.Nos.6700,6794,6977-2019 ..10..
No.16390 of 2013 produced as Ext.P14 that this Court had occasion to hold that if the State is having any adverse claim against the properties, the same has to be adjudicated in competent proceedings. It was further held that the right of the 2nd accused to get the properties covered by the sale deeds mutated in its name cannot be held at bay on account of technical objections raised by the State. The said finding of the learned Single Judge was approved by the Division Bench as well. Though the right of the State to set up an adverse claim or to initiate appropriate steps under the Land Assignment Rules, 1964 was reserved, I find that what the State has done is appoint an Enquiry Committee to look into the matter and file a report. The findings of the Enquiry Committee will not enable the State to raise a claim over the property or to cancel the registry. If it was found that the assignment was grossly equitable or in excess of limits of the powers delegated to the assigning authorities or if there was an irregularity in procedure or if the property assigned was in respect of puramboke land, the Government is expected to invoke the relevant provisions of law and cancel the same or to take steps to appropriate the property through a procedure known to law. Instead of doing that, on the strength of a B.A.Nos.6700,6794,6977-2019 ..11..
committee report, criminal proceedings have been initiated. I find that the accused have already approached this Court by filing separate writ petitions contending that the initiation of criminal proceedings against the accused to bye pass the orders passed by the writ court cannot be sustained. In some of the writ petitions, this Court has granted a stay as well. In the aforesaid backdrop, I am of the view that the applicants have made out a good case for an order of pre-arrest bail. I find from the vehement and totally earnest submissions of Sri.Jafar Khan.Y, the learned Government Pleader, that there are various suspicious circumstances. The same has to be probed in great depth, for which, stringent conditions can be imposed. In view of the nature of allegations, the role assigned to the applicants and attendant facts, I do not think that the custodial interrogation of the applicants are required.
In the result, these applications will stand allowed. The applicants shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. Thereafter, if they are proposed to be arrested, they shall be released on bail on their executing a bond for a sum of Rs.50,000/- (Rupees Fifty thousand only) each with two solvent B.A.Nos.6700,6794,6977-2019 ..12..
sureties each for the like sum. The above order shall be subject to the following conditions:
i) The applicants shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for three months or till final report is filed, whichever is earlier.
ii) They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/ her from disclosing such facts to the court or to any police officer.
iii) They shall not commit any similar offence while on bail.
In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law.
Sd/-
RAJAVIJAYARAGHAVAN. V JUDGE PS