1. This application is preferred under Section 439(2) of the Code of Criminal Procedure for cancellation of anticipatory bail granted in Criminal Miscellaneous (Anti.Bail) Application No.330 of 2011 in connection with the complaint registered as CR.No.I149/2011 with Vyara Police station.
2. Briefly stating facts as follows: The accused respondents sold agricultural land belonging to Dargah by way of registered sale deeds allegedly without any right, title or interest over the said land. It is the case of the prosecution that the said land was given by erstwhile owners in donation for the purpose of Dargah. One Mubarakkhan Umraokhan Pathan was administering the said Dargah. Upon his death on 27.5.1993, his sons plotted the land and sold it away to various persons, though they had no right nor title to so do it. The complainant is one of the purchasers with whom the accused entered into registered sale deed in the year 1996, misrepresenting in respect of their absolute right over the said land, when he chose to construct over the suit land, it was realized that the respondents accused had no right to sell this land.
3. The land is admeasuring 453.81 sq.meters bearing original revenue survey No.11 and presently having city survey No.416. Revenue Entry No.61139 dated 18.4.1968 is reflective of the name of Mubarakkhan Umraokhan Pathan as agriculturist in 1992. Mubarakkhan Umraokhan Pathan sold the said land to two persons whose names are mentioned in the revenue record. The said entries were taken in revision by the State Government and were cancelled in Revenue Case No.11 of 1996. The order of Deputy Collector further directed the initiation of necessary proceedings for the breach of conditions. However, the same was never carried in appeal or revision. On his demise the accused respondents committed the said offence.
4. It is the version of the prosecution that in the year 2009 after having managed to collect some money, the applicant wanted to construct a house on the said land. The complainant approached Nagar Palika office for getting of the plan sanctioned for construction of the house. When he was directed to get the property card details, he realized that there was no entry with regard to the said plot admeasuring 15x50 sq.meters of Survey No.416 and the same was standing in the name of the Dargah. When the respondents accused were approached, they denied to respond to the complainant and, therefore, the complaint was lodged with Vyara police station for the offences punishable under Sections 406,420,467,468,471 and 114 of the Indian Penal Code.
5. It is the case of the applicant that these respondents No.2 to 4 moved an application for anticipatory bail being Criminal Miscellaneous Application No330 of 2011 before the Sessions Court, Vyara. Vide its order dated 27.1.2012, the Court granted anticipatory bail to these accused, which has given rise to the present application.
6. Learned advocate Ms.Manisha Lavkumar Shah vehemently submitted that without any right, title or interest over the disputed land, the accused had the audacity to sell the land belonging to the Dargah.
The applicant is a man of very few resources, he yet managed to adduce the fund. It is not only qua the complainant that such offence has been committed but several other persons have been misrepresented and cheated. She further urged that the order of the Deputy Collector, Vyara in CTS Review No.11 of 1996 dated 30.6.1997 had become final. She further urged that one Khandubhai Madhubhai Chaudhary also had filed complaint being C.R.No.I214/2011 against respondent No.4 herein on 3.8.2011 for the offences punishable under Section 406,420 and 114 of the Indian Penal Code. Thus, when accused have criminal antecedents and are likely to temper with the evidence they could not have been given the benefit of Siddharam Mhetre's judgment reported in (2011) 1 SCC 694 as principles laid down for grant of anticipatory bail would not apply to the facts of the present respondents. She further urged that there are two other FIRs, which have been filed against the accused prior to lodging of the complaint by the present applicant and Respondent No.2 is still absconding.
7. Learned advocate Mr. M.R. Molvai appearing for all the respondents No.2 to 4 urged the Court that this is a dispute of civil nature and therefore, the Court was right in granting anticipatory bail. He further said that there has been no litigation whatsoever preferred by the applicant complainant qua the present respondents. He also further urged that the accused are aged and no purpose is going to be served in cancelling the bail as the complaint has been filed after much delay.
8. Affidavitinreply of respondent No.4, Sardarkhan Mubarakkhan Pathan is also brought on record to state therein that the petitioner has made irresponsible statement in the FIR and possession since was handed over to the purchaser in the year 1996 and after a lapse of 15 years, complaint has been lodged, which is purely of civil nature and there is no misrepresentation or fraud committed on the petitioner because the purchaser voluntarily purchased the land for the sum of Rs.11,000/ with complete vigilance and knowing fully about the facts. With regard donation of land to the Dargah by Ranchhod Nathubhai Mistry, there is no document having been broughtforth. It is the say of the respondents that on 7.12.1968, father of the respondents, namely, Mubarakkhan Pathan paid Rs.123/ under Section 32G of the Tenancy Act and has been declared the purchaser of the disputed land and on 25.4.1970, as per the Revenue Entry No.1139 maintained by Talati, 10 Gunthas of land has been obtained by the father of the respondent under the Tenancy Act from Deen Manisanker and Dayaram Nathubhai and after the death of respondent's father on 5.2.1994 names of the respondents and their family members have been entered into in Revenue record as legal heirs. He further urged that on 7.4.2012, respondent No.2 applied for solvency and the same is still pending and under process. He had gone twice to the police station to furnish the bail but the police authority did not take bail without solvency and, therefore, he cannot be termed as absconder and delay has occurred because of the helpless situation and a bona fide mistake.
9. On having thus heard learned advocates for the parties and also on closely examining the order impugned, as far as respondents No.3 and 4 are concerned, entire gamut of facts are to be separately examined although the allegations against all the three are of identical nature in as much as there are additional submissions made in respect of respondent No.2 Jafarkhan Mubarakkhan Pathan.
10. As can be noted from rival contentions, the disputed land appears to have been given for the purpose of Dargah and the same has been sold in the year 1996 to the present applicant. As is the case of the petitioner he is the man of poor means and after much endeavour when he could pull up his resources to construct over the suit land, he realized, while seeking permission of construction, that the land did not belong to these respondents and he has been duped of money. However, the fact remains that after 1997, the complaint has been filed as many as 15 years after. It was also required of the applicant to examine the title documents of the property that he sought to purchase. That is not to say that the legal responsibilities and the liability of the respondents is to act in accordance with law and sell only the property of which they have right, title or interest. Nevertheless this late filing of the complaint after 15 years, as also considering the nature of the dispute and overall circumstances, the Court deemed it fit to grant anticipatory bail in favour of these persons and this Court sees no reason to interfere as none of the grounds are potent enough to cancel the bail once having been granted.
11. As far as respondent No.2 is concerned, and the merit of his case is concerned, this Court has to apply the same yardstick as is done in case of other two, however, his case requires separate discussion because he is alleged to have been absconding and have not reported to the police authority. There was much emphasis on nonfurnishing solvency certificate, which was required to be produced by him. Nonproduction of this certificate in time has given rise to the allegation that he has failed to appear in time and has been absconding.
12. It is by way of an affidavit of respondent No.4, his brother, it is submitted that he was attempting to get the solvency certificate and since that entire process got delayed, he was unable to produce it in time. It is further stated that he already made a request to the concerned police officials. The affidavit before the Notary is indicative that due to his poor means, the petitioner could not produce the solvency certificate and the procedure is on going, which prevented him from producing the said certificate before Vyara police station. The copy of application made to the Mamlatdar, Vyara, has been brought on record to substantiate his say. It is the say of the respondent that limited resources did not permit him to file solvency certificate within the stipulated time.
Ordinarily, this Court would require to take stern steps of cancelling his bail for noncompliance of the specific direction while being enlarged on bail. However, keeping in mind the fact that this respondent is aged and he could not adduce solvency certificate for the reasons beyond his control that the bail already granted in his favour is not being cancelled availing him one more opportunity of four (4) weeks from the date of receipt of this order for the said purpose.
13. Resultantly, this application is being disposed of. Needless to say that in the event of any failure on the part of respondent No.2 to comply with the direction, will entitle the complainant as well as the prosecuting agency to move for cancellation of bail.
(Ms.Sonia Gokani, J.) sudhir