Bhavanbhai Laxmabhai Gorasiya vs State Of Gujarat

Gita Gopi, J

This anticipatory bail application preferred under section 438 of the Code of Criminal Procedure, 1973 is in connection with the first information report being C.R. No.11193053210048 registered with Savarkundla (Rural) Police Station, District Amreli for the offences punishable under sections 4(3), 5(c), 5(3) of the Gujarat Land Grabbing (Prohibition) Act, 2020.

The first information report was filed on 31.1.2021 alleging that the father of the complainant Jivrajbhai Bhagwanbhai Pansuriya was holding land bearing Survey No.197 paiki 3, admeasuring 1.2950 Hectare, at village Hathsani, Taluka Savarkundla, District Amreli. It is alleged that Sureshbhai Bhadabhai Pansuriya - accused No.1 in connivance with the accused Nos.2 to 5 forged the signature of the father of the complainant and got the land transferred in his favour and thereafter, the said accused No.1 wrongly took the possession of the said land and therefore, it is alleged that he has taken the illegal possession of the land and derived monetary gain by cultivating the questioned land.

Mr.Anand Patel, learned advocate for the applicant submitted that the present applicant at the relevant time when the document was registered on 31.3.2003 was serving in his official capacity as Sub-Registrar, Savarkundla. Mr.Patel, learned advocate submitted that the applicant has followed the relevant rules in existence by registration of document on 31. 3.2003. Mr.Patel, learned advocate referring to Sections 84 and 86 of the Indian Registration Act submitted that no malafide intention can be ascribed to the applicant since he is a person who is a deemed public servant to act in accordance to the provisions of law. Mr.Patel, learned advocate submitted that the vendor who sold out the property Mr.Jivrajbhai Bhagwanbhai Pansuriya was identified by two witnesses and those two witnesses had affirmed before the present applicant as a Sub-Registrar of knowing the vendor Jivrajbhai Bhagwanbhai Pansuriya. Therefore, as per the rules prevailing, the necessary identification of the sold out land was done. It is submitted that the present practice of online registration and face identification was not prevailing at that time and being a Sub-Registrar, he was duty bound to follow the procedures and rules adopted for the registration of the sale deed. Mr.Patel further submitted that no query was raised by any higher authority of any failure to adhere to any rules for registration of sale deed. Mr.Patel further submitted that there are no allegations against the present applicant of taking illegal possession of the land or making any unauthorised construction. Mr.Patel further submitted that the complaint and accused Nos.1, 2 and 3 are related to each other. Complainant and accused No.1 are cousin brothers. Their internal disputes had led to registration of false FIR. Mr.Patel further stated that the co-accused had already settled the dispute and co-accused Sureshbhai Pansuriya and Premjibhai Bagda have been granted regular bail by the High Court and accused No.2 has been granted anticipatory bail, who is brother of the accused No.1. It was, therefore, prayed that discretion may be granted in favour of the applicant.

Ms.Jirga Jhaveri, learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. It was submitted that the applicant as a Sub-Registrar had a legal duty to verify the identification of the seller of the land. It is his duty to get proper identification and such identification should be by person known to the said registering authority. The applicant as a Sub-Registrar had failed to perform his duty and therefore, sale deed with the forged signature of the father of the complainant got to be executed. It was, therefore, prayed that no discretion may be exercised in favour of the applicant.

Heard the learned advocates for the parties and perused the material on record. Prima facie, the Gujarat Land Grabbing (Prohibition) Act, 2020 has come into force on 29.8.2020. The act has been put into force to prohibit land grabbing activities and connected matters in the State of Gujarat. The present alleged sale deed was registered on 31.3.2003 and as stated by Mr.Patel, learned advocate the Sub-Registrar was to perform his duties in accordance to the rules and procedure prevailing at the relevant time. Section 84 of the Registration Act, 1908 considers every registering officer as a public servant under the meaning of the Indian Penal Code and every person is required to furnish information to such registering officer when required by him to do so. The copy of the sale deed reflects the necessary identification procedure adopted by the Sub-Registrar and if any act is bonafidely done by the registering officer that he would not be liable. Here in this case, nothing has been brought on record to show that the applicant as a Sub-Registrar of Savarkundla has deliberately failed to perform any of his functions while registering the document since the document registered is dated 31.3.2003 and the Gujarat Land Grabbing (Prohibition) Act, 2020 has come into force on 29.8.2020. Taking into consideration the facts of the case, nature of allegations and the gravity of offence and that other co-accused have been granted regular bail and co-accused No.2 has been granted anticipatory bail, this Court is inclined to grant anticipatory bail to the applicant.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565. This Court has also taken into consideration the recent decision of the Apex Court in the case of Sushila Aggarwal and others Vs. State of (NCT of Delhi) and Another, reported in (2020) 5 SCC 01.

In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with the first information report being C.R. No.11193053210048 registered with Savarkundla (Rural) Police Station, District Amreli on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he:

(a) shall cooperate with the investigation and make available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 01.05.2021 between 11.00 a.m. and 2.00 p.m.;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; and

Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.