Gujarat High Court
Popatbhai Maganbhai Desai vs State Of Gujarat on 5 February, 2024
NEUTRAL CITATION
R/CR.MA/2162/2024 ORDER DATED: 05/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
2162 of 2024
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POPATBHAI MAGANBHAI DESAI
Versus
STATE OF GUJARAT
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Appearance:
MR JAYPRAKASH UMOT(3581) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3,4
MR HK PATEL, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/02/2024
ORAL ORDER
Rule. Learned APP waives service of rule for Respondent No.1- State.
1. By way of this application, filed under Section 439(2) of the Code of Criminal Procedure, 1973 (in brief, 'the Code'), the applicant-first informant seeks to assail the order dated 03.01.2024, passed in CR.M.A. No. 4619 of 2023, by the learned 4th Additional Sessions Judge, Ahmedabad (Rural), granting anticipatory bail to the respondents-accused in connection with the offence registered with the Kanbha Police Station, District: Ahmedabad (Rural), being CR No. 11192030230853 of 2023 for the offences punishable under Sections 3, 4(1), 4(2), 4(3), 5(c) and 5(d) of the Gujarat Land Grabbing (Prohibition) Act, 2020 ('Act of 2020', in brief).
2. Learned Advocate for the applicant would submit that learned trial Court has not taken into consideration the Page 1 of 9 Downloaded on : Tue Feb 06 20:43:58 IST 2024 NEUTRAL CITATION R/CR.MA/2162/2024 ORDER DATED: 05/02/2024 undefined offences under Sections Sections 3, 4(1), 4(2), etc. of the Act of 2020, while granting bail to the respondents-accused. He would further submit that the trial Court failed to take into consideration the fact that the petitioner is the registered owner of the land in question. It was submitted that the petitioner obtained the title of the dispute land from its erst- while owner and therefore, the possession of the same by the accused persons is apparently illegal. It was submitted that petitioner being the registered owner, the respondents- accused would be covered by the definition of the term 'Land Grabbing', as provided under the Act of 2020 and that their possession is illegal and unjust.
2.1 It was submitted that the documents, which are being relied on by the respondents-accused, are unregistered and therefore, the same could not have be taken into consideration by the trial Court.
2.2 It was, further, submitted that the trial Court failed to take into consideration the provisions of Section 11 of the Act of 2020, whereby, a presumption is provided in favour of the first informant and which casts a burden on the respondents- accused to prove that they are legally / lawfully possessing the land in question.
2.3 It was submitted that the impugned order is an unreasoned order and learned Court below has failed to notice and observe the well settled principles for grant and refusal of bail and therefore, this application be allowed.
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3. Learned APP adopted the arguments advanced by the learned Advocate for the applicant and prayed that the appropriate orders may be passed in the facts and circumstances of this case.
4. Having heard the learned Advocates appearing for the respective parties and having perused the impugned order, at the outset, it would be relevant to refer to the observations made by the trial Court at Paragraph-6 of its order dated 03.01.2024, the English translation whereof reads thus;
"6. Heard the arguments of both the sides. Also taken into consideration the application, so also the documents produced along with the same, affidavit of the investigating officer and the papers of investigation. In regard to the facts of this case, the arguments of both the sides are taken into consideration. The brief facts of the case of the prosecution are that the accused have a land, bearing Account No. 1561, Block No. 1239 (Old Survey No. 493), H.A.S.Mts. 00-97-15, situated on the outskirts of Village Bhaavda, which is adjacent to the land of the first informant and therefore, with a view to grab the land of the first informant, they do not allow the first informant to access his land and instead, the accused are cultivating the land of the first informant and they also asked him to handover the possession of the said land to them (i.e. the respondent-accused) and thereby, demanded money and committed the alleged Page 3 of 9 Downloaded on : Tue Feb 06 20:43:58 IST 2024 NEUTRAL CITATION R/CR.MA/2162/2024 ORDER DATED: 05/02/2024 undefined offence. In this regard, there is possession of the ancestors of the accused persons on the land in question by virtue of mortgage deed since 1989 to 2009 and that the original owner of the land has executed a sale deed in favour of the predecessors of the respondents- accused. Thereafter, the first informant sold the land in question in the year 2015. However, since, the possession of the land in question is with the accused persons, even before the concerned Act (i.e. Act of 2020) came into force, as to whether, the accused have grabbed the land in question is a subject-matter of investigation and trial and therefore, this appears to be a fit case to exercise the powers under Section 438 of the Code and hence, the following order is passed."
4.1 What appears from the FIR in question is that there was some mortgage transaction between the ancestors of the first informant and the respondents-accused. It appears that the mortgage deed was produced by the respondents-accused during the course of hearing of Criminal Misc. Application No. 4619 of 2023 before the trial Court. Further, on the face of the mortgage deed, no proceedings have been initiated under the Transfer of Property Act, 1882, till date. There was also another document, i.e. the sale deed. Thus, the findings given by the concerned trial Court, cannot be termed as unjust or unreasonable. What appears from the record is that cancellation of bail is sought, but, learned Advocate for the petitioner failed to point out any supervening circumstances. In the present case, learned advocate for the petitioner has also Page 4 of 9 Downloaded on : Tue Feb 06 20:43:58 IST 2024 NEUTRAL CITATION R/CR.MA/2162/2024 ORDER DATED: 05/02/2024 undefined failed to point out that the accused has misused the liberty, granted by the Court concerned.
5. In the case of 'P. Vs. State of Madhya Pradesh and another', reported in (2022) SCC Online SC 552, the Hon'ble Apex Court has enumerated the circumstances, when bail could be canceled and one of the conditions stated therein is the misuse of the liberty granted to the petitioner by the Court by involving himself in a subsequent crime.
6. In the case of 'Gurcharan Singh and others Vs. State (Delhi Administration), reported in (1978) 1 SCC 118, the Hon'ble Apex Court had an occasion to observe that the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of canceling the bail on the ground that the accused has misconducted himself or because of some new facts are requiring such cancellation. In Paragraph-16, the Hon'ble Apex Court has observed as under:-
"16. Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position under Section 498 CrPC of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Page 5 of 9 Downloaded on : Tue Feb 06 20:43:58 IST 2024 NEUTRAL CITATION R/CR.MA/2162/2024 ORDER DATED: 05/02/2024 undefined Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody.Page 6 of 9 Downloaded on : Tue Feb 06 20:43:58 IST 2024
NEUTRAL CITATION R/CR.MA/2162/2024 ORDER DATED: 05/02/2024 undefined When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court."
7. The aforesaid observations made by the Hon'ble Apex Court has been reiterated by the Hon'ble Apex Court in the case of 'Puran v. Rambilas and Another', reported in (2001) 6 SCC 338, as well as in case of 'Abdul Basit alias Raju and Ors. v. Mohd. Abdul Kadir Cahudhary and Another', reported in (2014) 10 SCC 754.
8. In the case of 'Ranjit Singh v. State of M.P.', reported in (2013) 16 SCC 797, the Hon'ble Apex Court has held as under
in Paragraph-19:-
"19. It needs no special emphasis to state that there is distinction between the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. We have already referred to various paragraphs of the order passed by the High Court. We have already held that the learned trial Judge has Page 7 of 9 Downloaded on : Tue Feb 06 20:43:58 IST 2024 NEUTRAL CITATION R/CR.MA/2162/2024 ORDER DATED: 05/02/2024 undefined misconstrued the order passed by the High Court. However, we may hasten to add that the learned Single Judge has taken note of certain supervening circumstances to cancel the bail, but we are of the opinion that in the obtaining factual matrix the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the court below had enlarged the accused on bail on the strength of the order passed in Ranjeet Singh v. State of M.P. [Ranjeet Singh v. State of M.P., MCRC No. 701 of 2013, order dated 1- 2-2013 (MP)] remaining oblivious of the parameters for grant of bail under Section 439 CrPC. It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course."
9. At this juncture, the observations made by the Hon'ble Apex Court in case of 'Dolat Ram and Ors. v. State of Haryana', reported in 1995(1) SCC 349, is required to be recollected. It was observed therein that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. The grounds for cancellation of bail though are broad, but illustrative and not exhaustive; are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The Court should satisfy for availability of the grounds for satisfying of the bail or cancellation of the bail and one of the possibility is accused being absconded. The bail once granted, should not be cancelled in a mechanical manner, without considering availability of any grounds or supervening circumstances, Page 8 of 9 Downloaded on : Tue Feb 06 20:43:58 IST 2024 NEUTRAL CITATION R/CR.MA/2162/2024 ORDER DATED: 05/02/2024 undefined which affects the very principle of fair trial.
10. With profit, I may also refer the observations made in the recent decision by the Hon'ble Apex Court in case of 'Kekhriesatuo Tep and others Vs.National Investigating Agency' reported in (2023) 6 SCC 58. The relevant observation made in Paragraph-19 reads as under:-
"The Special Judge has himself distinguished cases of the persons who have indulged into extortion for furthering the activities of the organisation and red the persons like the present appellants, who were government servants, and er, compelled to contribute the amount. Hence, it cannot be said that the prima ell facie opinion, as expressed by the Special Judge, could be said to be perverse or impossible."
11. Thus, the petitioner has failed to make out a case, which permits this Court to interfere with the impugned order granting pre-arrest bail to the respondents-accused. No reasons or supervening circumstances or grounds are made out warranting interference with the order of granting bail.
12. In the result, present petitions fail and stands dismissed. Rule is discharged.
(J. C. DOSHI,J) UMESH/-
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