S.C. Sharma, J@mdashParties through their counsel
This is the first bail application filed under section 439 of Cr.P.C for grant of bail. The applicant is in jail since 25/08/2015.
2. The contention of the present applicant is that one of the co-accused Sitaram Vyas has been granted bail by this Court vide order dated 04/06/2015 passed in MCRC No. 4381/2015 and therefore, as the case of the present applicant is identical, he is also entitled for grant of bail. The applicant is in jail for the offence under sections 420, 120-B, 406, 409 of IPC.
3. It has been stated and argued that the applicant is an innocent person and has been falsely implicated. There is no legal evidence to connect the applicant in respect of the crime in question. Trial of the case is likely to take sufficient time and he will suffer unnecessarily and on the ground of parity, the applicant deserves to be bailed out.
4. It has been stated that the applicant was authorized to sell the land and the dispute is of purely civil nature and by no stretch of imagination, the case for proceeding under sections 420, 120-B, 406 and 409 of IPC is made out against the applicant. It has also been stated that challan has been filed in the matter and no further investigation is required and therefore, bail be granted to the present applicant. An application has also been filed i.e. I.A. No. 6731/2015 for grant of temporary bail on the ground that the applicant''s mother is suffering and therefore, he should be granted temporary bail.
5. There is objection in the matter. The same is I.A. No. 6608/2015. The same is allowed and the objector is also permitted to argue the matter. He has argued before this Court that in the present case, Harjindarsingh and Gyansingh were the land owner of the land in question situated in Survey Nos. 12/2, 13/1, 13/5, 13/6 and 13/7, admeasuring 3.338 hectors and the same was purchased by M.T. Cloth Market Housing Co-operative Society for providing plots to its members. At the relevant point of time, one Omprakash was the president of the Housing Co-operative Society. A power of attorney was given by Harjindarsingh to the present applicant in respect of the same land for obtaining necessary approval from various government departments. The power of attorney also finds place along with the documents annexed with the challan. It has been stated that without there being any authority to sell the land, the applicant has sold the entire land of the Housing Society to some other persons/society.
6. Learned Govt. Advocate has also argued before this Court that it is the present applicant, who is the main accused in the crime. He was absconding and he has surrendered only because his anticipatory bail application has been rejected. It has also been argued that he is a very influential person and the same is established on the basis of the fact that the police was not able to arrest him for about 1 1/2 years inspite of there being no order granting him anticipatory bail
7. This Court has carefully gone through the power of attorney and the objections raised by the members of the Co-operative Society and it is an admitted fact that Harjindarsingh has not given the power of attorney to the present applicant to execute the sale-deed in respect of the same land, which was sold to M.T. Cloth Market Housing Co-operative Society. It is also pertinent to mention that the present applicant was a witness in respect of the sale-deed executed in favour of M.T. Cloth Market Housing Co-operative Society and inspite of the aforesaid fact, he has executed the sale-deed, though he was not authorized by the power of attorney holder to do the same. Thus, it can never be said that there is no evidence against the present applicant and he is an innocent person.
8. It has been vehemently argued that the other co-accused person has been granted bail by this Court vide order dated 04/06/2015 passed in M.Cr.C No. 4381/2015. The other co-accused Sitaram Vyas has never executed the sale-deed and it was the present applicant who has executed the sale-deed. Not only this, the other co-accused was in jail for a period of 1 1/2 years and the challan was filed in respect of the other co-accused and in respect of the present applicant as he was absconding, this Court has rejected his first anticipatory bail application by passing a detailed order. The order dated 03/08/2015 passed by this Court in respect of anticipatory bail application (M.Cr.C No. 5419/2015) in respect of the present applicant reads as under:
"This application u/S. 438 of the Code of Criminal Procedure, 1973, is at the instance of applicant Madanlal S/o. Chhogalal Jain, who is apprehending his arrest in connection with Crime No. 91/2014 registered at P.S. Sarafa, Indore for commission of offence punishable u/Ss. 420, 406, 409 and 120-B of the Indian Penal Code.
Learned counsel for the applicant has stated before this Court that a false case has been registered against the present applicant and one Sitaram on the basis of enquiry report of Addl. Collector, Indore and the Joint Registrar, Cooperative Societies, Indore on the basis of the complaint lodged by 59 members of the Indore Cloth Market Grih Nirman Sangharsh Samitee, Indore.
It was further argued that the dispute was with regard to illegal transfer of the agricultural lands bearing Khasra No. 13/1, 13/5, 13/6 and 13/7 situated at village Bijalpur, Tehsil and Distt. Indore which was owned and possessed by Jagjitsingh and Gyansingh. Jagjitsingh and Gyansingh sold the said land to Indore Cloth Market Grih Nirman Sahakari Sanstha Maryadit, Indore through registered sale deeds. On the very same day, the Indore Cloth Market Grih Nirman Sahakari Sanstha Maryadit, Indore has transferred the land to Nakoda Grih Nirman Sahakari Sanstha through registered sale deed. It is further submitted that in order to overcome the impediment of the provision of the Urban Land (Ceiling and Regulation) Act, 1976, the Nakoda Grih Nirman Sahakari Sanstha has sold the land in question to Nav Bharat Grih Nirman Sahakari Sanstha Maryadit. On account of a dispute, the Nakoda Grih Nirman Sahakari Sanstha Maryadit referred a dispute u/S. 64 of the M.P. Societies Act, 1960 before Dy. Registrar Cooperative Societies, Indore whereupon an enquiry was conducted by the Addl. Collector, Indore and the Joint Registrar, Cooperative Societies, Indore and FIR was directed to be registered against the present applicant and one Sitaram.
Learned counsel for the applicant has vehemently argued before this Court that applicant is aged 63 years and a renowned businessman of Indore and is ready to participate in the process of trial. Applicant is innocent and no useful purpose is going to be served by putting him behind the bar. It has been stated that one of the co-accused has already been enlarged on bail by this Court.
Per contra, learned counsel for the respondent - State has objected the prayer for grant of anticipatory bail.
Learned counsel for the objector has submitted before this Court that applicant is absconding since 22/5/2014. On the basis of an enquiry conducted by the Addl. Collector wherein the Dy. Commissioner, Cooperative Societies was directed to register FIR against applicant Madanlal for illegally, unauthorisedly and fraudulently transferring the land in question. It was further stated that the applicant was appointed as Power of Attorney holder by Harjindersingh and Gyansingh, but the applicant has unauthorisedly and illegally transferred the land in question to Navbharat Grih Nirman Sahkari Sanstha, Indore. Learned counsel for the objector has prayed for rejection of the bail application.
Learned Government Advocate has further argued that the applicant is absconding and a report has been submitted in the matter. The report submitted by the Police Authorities categorically reflects the applicant as "Absconding". In respect of one of the co-accused Challan has already been filed. However, the present applicant has not participated with the process of investigation and he is absconding. The Authorities have not been able to take further steps in the matter. It has been vehemently argued by Mr. Aniket Naik, that a person who is absconding, evading his arrest and not participating with the investigation, deserves no leniency and is also not entitled for anticipatory bail in the light of the judgment delivered by the apex Court in the case of
Heard learned counsel for the parties at length and perused the case diary.
This Court is of the considered opinion that prima-facie there is involvement of the applicant in transferring the land in question from Indore Cloth Market Grih Nirman Sahakari Sanstha Maryadit, Indore to Nakoda Grih Nirman Sahakari Sanstha and thereafter to Nav Bharat Grih Nirman Sahakari Sanstha Maryadit without obtaining the consent of the Members of the Society and without holding any General Meeting.
The said Sitaram was released on bail by this Court u/S. 439 of the of the Code of Criminal Procedure, 1973 and the present applicant cannot claim parity as the trial has proceeded ahead against Sitaram and the present applicant is absconding and is not participating in the trial of the case.
Keeping in view the aforesaid, this Court is of the considered opinion that no case for grant of anticipatory bail, at this stage, is made out.
The application deserves to be rejected and is accordingly hereby rejected. However, it is clarified that any observation made by this Court shall not be treated as final opinion of this Court on the merits/demerits of the case. Certified Copy, as per Rules."
9. This Court has carefully gone through the earlier orders passed in the matter as well as the affidavit filed by the Investigating Officer.
10. In the affidavit of the Investigating Officer, it has been stated that the conduct of the applicant is highly improper. He is involved in the crime in question. There is every possibility of his absconding, in case, he is granted bail. The affidavit is also on record filed by the police authority.
11. The Hon''ble Apex Court in the case of
"It may be useful to advert to the dictum of the Supreme Court in the case of Deepak Shubhashchandra Mehta (supra). In para 32 of the said decision, the Court has summed up the legal position regarding factors to be kept in mind while considering prayer for bail. The same reads as under:
"The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (c) prima facie satisfaction of the court in support of the charge. In addition to the same, the Court while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted "
12. Keeping in view the aforesaid judgment and the totality of the circumstances of the case as also considering the nature of the alleged offence against the present applicant, this Court does not find it to be a fit case for grant of bail in the peculiar facts and circumstances of the case. Accordingly, present application stands rejected.
C c as per rules.
