1. This is an application preferred under Section 439(2) read with Section 482 of the Code of Criminal Procedure for cancellation of Regular Bail granted to the present respondent No.1 who is allegedly a habitual offender and involved in nearly 5 cases of land grabbing.
2. It is the case of the original complainant that a complaint was lodged being CR No.I-100 of 2011 dated 18.6.2011 with Kanbha Police Station against respondent No.2 for offences punishable under Sections 465,467,468,471 and 120(B) of the Indian Penal Code.
3. It is the case of the complainant that land was ancestral property owned by the complainant applicant and his family. Respondent No.2 is alleged to have created forged and fraudulent power of attorney deed in the name of the applicant and his family on 24.4.2005 and he gave power of attorney to one Jaiyul Rehman Fazal Siddiqui, resident of Fort Road, Mumbai. He executed a registered sale deed on 10.2.2007 for small amount of the land worth crores of rupees along with his accomplices. The complaint also notes that the sale consideration shown is of Rs.1 crore and the entire amount is averred to have been paid by cash.
4. Vide order dated 19.10.2011, learned Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application No.1593 of 2011 granted bail to respondent No.2 and being aggrieved by such an order, present application is preferred.
5. On issuance of the notice to respondent learned advocate Mr. Ajay S. Jagirdar appeared for on behalf of respondent No.2.
Mr. Tattavam Patel appearing for the applicant original complainant urged to this Court that purported power of attorney holder Mr. Jaiyul Rehman Fazal Siddiqui is shown to be resident of Mumbai, who does not exist. There are various other complaints filed against the present respondent where identical modus operandi is adopted. The respondent No.2 has master-minded the entire conspiracy and the power of attorney document of Mr. Jaiyul Rehman Fazal Siddiqui has been obtained from the farm house of the present respondent. He further urged the Court that the land worth Rs.40 crores has been sold in Rs.1 crore and that too by cash transaction.
There are nearly 6 to 7 FIRs' filed with Sanand, Kanbha,Naroda,Changodhar, Dabhoda, Daskroi, Ahmedabad and Gandhinagar Police Stations against this very respondent accused. The Court, disregarding all these grave aspects, granted bail to him. Reliance is also placed on the judgment of Supreme Court in the case of Brij Nandan Jaiswal vs. Munna Alias Munna Jaiswal and another reported in (2009)1 SCC 678 to point out that complainant has a right to get the bail cancelled if otherwise on the merits, the Court has committed an error.
It is urged by the learned Additional Public Prosecutor appearing for the State that respondent No.2 is involved under various offences under the PASA Act, he has been arrested by the Collector, Ahmedabad and from 12.2.2012 he is in prison. He supported the submission of the learned advocate for the petitioner.
Learned advocate appearing for respondent No.2 urged that there has been no misuse of liberty. However, on merits all the contentions raised before this Court were already raised before the trial Court and Regular Bail has been granted on 19.10.2011 in his favour. There is absolutely no involvement of respondent No.2 in the alleged offence and, therefore, the Court rightly granted him the regular bail.
6. On thus having thoughtfully considered the submissions of both the sides for the following reasons, regular bail granted in favour of respondent No.2 requires cancellation:-
7. Admittedly respondent No.2 at present is in jail detained under PASA from February, 2002. This is one of the circumstances reflecting on the conduct of the respondent.
8. Various complaints have been lodged against this person in Sanand, Kanbha, Naroda, Changodhar, Dabhoda, Daskroi police stations under several provisions of the Indian Penal Code. There is common thread running in all these complaints where accused has been alleged of land grabbing pursuant to the criminal conspiracy. It can also be noted that similar modus operandi is adopted by this accused while committed the offence of grabbing the land.
What is the most surprising part is that in these complaints what emerges is that the driver of respondent No.2 is the purchaser of the property and the property worth crores is sold at a sum of rupees one crore. However, this apparently low consideration is also running into lakhs of rupees which a person working as a driver hardly can afford and entire transaction is made in cash. Power of attorney is prepared in the name of Mr. Jaiyul Rehman Fazal Siddiqui, who is shown to be the resident of Fort Road, Mumbai. However, no such person could be found by the investigating agency and this document was found in the possession of the respondent. It can be safely assumed that he is a fake person, who appears to have been created by the respondent for committing crime.
9. It can be also noted from the record that every time this person is enlarged on bail, he is getting emboldened and goes on committing similar offences. The complaints against him have been filed in various cases within a span of 1(one) year and adopting the very same modality, he successfully transferred the land in the name of one of his accomplices.
10. The affidavit of Police Officer, if perused in this case, it can be noted that the accused was absconding for a long period and, thereafter he was arrested. Dashrathgiri Babugiri Goswami is the driver of respondent No.2 who allegedly conspired with him for the commission of offences. It may ordinarily look to be only the transaction in respect of this land but it is necessary to make specific reference that the respondent accused is involved in grabbing various parcels of land and with the rise in the land prices, the rise in the crime of such nature needs to be dealt with necessary sternness by the Court. Greed of unearned income on the part of the accused resulting into repeated acts of alleged criminality which consequently resulted into depriving the rightful owners of the enjoyment of land and use of their own properties. These acts cannot be dealt with lightly particularly when there are reccurances apparent on the face of the record.
11. The order of the learned Sessions Judge if is considered, the Court is mainly influenced by the fact that in the complaint no role of the accused comes forth. The Court also was actuated by the fact that driver of the respondent No.2 is shown to be a person who has masterminded the land grabbing. Fact remains that respondent No.2 is found, during the investigation, to be the main conspirator and adopting the identical modus operandi, he emerges as the person who committed these offences of land grabbing. Therefore, the absence of his name in the complaint itself can never be the ground for the Court not to view his involvement seriously. Moreover, if Dashrathgiri Babugiri Goswami is alleged to have masterminded the conspiracy that, in no manner, can lessen the gravity of charges levelled against present respondent No.2 where involvement of this accused emerges from the investigation. Cancellation of bail once granted of course is permitted to be challenged on merit as per the ratio laid down in case of Brij Nandan Jaiswal vs. Munna Alias Munna Jaiswal and another (supra). Of course, the cancellation of bail will have to be rarely resorted to by the Court but in cases where a person repeatedly and relentlessly continues to commit identical offences and in complete disregard to his such criminal antecedents and repeated commission of similar offences on being enlarged on regular bail, can certainly not be disregarded by the Court while exercising discretionary power of enlarging the accused on regular bail.
Again this accused respondent was absconding and could be arrested long after the complaint was filed. This would also be one of the vital considerations as his availability during the trial is one very vital factor to be weighed while granting the bail.
12. This Court is of the opinion that some of these vital aspects are disregarded while exercising discretion and, therefore, it would be in the fitness of things to intervene and interfere in the order impugned and cancel the bail of the accused.
13. This Court in the case of Babuji Gandaji Thakore vs.
Popatji Gelaji Thakore and anr. in Criminal Miscellaneous Application No.9745 of 2011 decided on 17.8.2011, discussed decisions of the Apex Court for cancellation of bail in similar circumstances in the following manner:-
“Supreme Court in the case of Guria, Swayam Sevi Sansthan vs. State of U.P. and Ors., 2010 AIR SCW 1182, for the proposition that one of the grounds for cancellation of bail would be where material evidence brought on record has been ignored and that too without any reasons. Reliance was also placed upon the decision of the Supreme Court in the case of Gobarbhai Naranbhai Singala vs. State of Gujarat and Ors., AIR 2008 SC 1134, for the proposition that the court does not ordinarily interfere in matters granting bail but the same is subject to certain exceptions. When the basic requirements necessary for granting bail are completely ignored, the higher court would be justified in cancelling bail. The decision of the Supreme Court in the case of State of Maharashtra, etc. vs. Dhanendra Shriram Bhurle, etc., AIR 2009 SC 1706 was cited for the proposition that where bail is granted disregarding relevant considerations, the same is liable to be set aside. Reliance was placed upon the decision of the Supreme Court in the case of Dr. Narendra K. Amin vs. State of Gujarat and Anr., AIR 2008 SC (Supp) 1939, for the proposition that even though a re-appreciation of the evidence is to be avoided, the court dealing with an application for cancellation of bail under section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known to what extent the irrelevant materials weighed with the court for accepting the prayer for bail.”
14. Resultantly, the order passed by the learned Sessions Judge, Ahmedabad (Rural) in Criminal Miscellaneous Application No.1593 of 2011 is hereby quashed and set aside. The bail bond of respondent No.2 stands cancelled as well. As accused is already in Jail under PASA, copy of the order shall be sent to the Superintendent, Central Jail, Sabarmati. He is not being directed to surrender to the custody forthwith and instead Yadi is being sent to the Director General, Prison for being conveyed to the concerned Jail Superintendent over and above the communication in a regular mode.
(Ms.Sonia Gokani, J.) At this stage, learned advocate appearing for the respondent accused requests for stay of the order with a view to approaching the Apex Court. Since the accused is already in jail in connection with the offence under PASA Act, it would be appropriate to stay the implementation of this order for a period of eight(8) weeks from today.
(Ms.Sonia Gokani, J.) sudhir