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Judgment
This is first application under section 438 Cr.P.C seeking anticipatory bail as the applicants are apprehending their arrest in connection with issuance
of warrant/summons by the competent Court after taking cognizance in a complaint case filed by the respondent and registered as Criminal Case
No.5630/2018 for the offence punishable under sections 420, 467, 468, 471, 120-B & 34 of the IPC.
Respondent filed a complaint case under section 200 of the Cr.P.C against the present applicants on 30.09.2014 before the JMFC, Indore alleging that
the land bearing survey No.77, area 0.077 hectares was recorded in the name of his grandfather Balwant Singh as Bhumiswami. The present
applicants Rajkunvarbai, Mukesh Singh, Ashabai, Sangeeta and Manohar Singh have got mutated the said land in their names on the basis of a
succession certificate issued by the Gram Panchayat Navdapath, Tahsil and District Indore and thereafter they have sold the land to Manohar Singh,
who is a local resident, therefore, they have committed forgery and cheated him. In support of the complaint, respondent examined himself and
Bhavarsingh. Vide order dated 05.09.2018 learned JMFC, Indore has taken cognizance of the complaint under sections 420, 467, 468, 471, 120-B &
34 of the IPC and directed for issuance of notice on payment of process fee for their appearance on 30.11.2018. Since the present applicants did not
appear before the learned JMFC, therefore, warrant has been issued against them. Upon issuance of the warrant the applicants filed an application
under section 438 Cr.P.C before the trial Court but the same has been dismissed, hence before this Court by way of first application under section 438
Cr.P.C.
Learned counsel for the applicants submits that after the aforesaid sale Manohar Singh applied for mutation in which respondent and other legal heirs
of Balwant Singh filed an objection. Learned Tahsildar has rejected their objection and mutated the name of applicants and thereafter they preferred
an appeal before the SDO. He further submits that the respondent and other legal heirs have filed a civil suit before the Civil Judge, Class-II, Indore
on 18.11.2011 in which the present applicants have appeared and filed written statement on 10.02.2012 and the said suit is still pending for
adjudication. In order to pressurize the present applicants the complainant has filed a complaint before the learned JMFC on 30.09.2014. The alleged
incident is of the year 2010-11 and the complaint has been filed belatedly in the year 2014. One of the applicants is aged about 85 years. The dispute is
purely of civil nature for which the civil suit is pending. The present criminal proceeding is nothing but abuse of process of law as held by the Apex
Court in the case of Commissioner of Police & others vs. Devender Anand reported in AIR 2019 SC 3807.
Shri R.S.Yadav, learned counsel appearing for the respondent submits that the applicants have obtained a succession certificate from the Panchayat
which is not competent to grant such succession certificate and on the basis of the said succession certificate they got mutated their names and sold
the land to Manohar Singh, who is also a local resident and aware about the fact that the land belongs to the grandfather of the objector/complainant
and despite that they conspired and committed forgery and cheating with the complainant, therefore, the complaint has rightly been entertained by the
learned JMFC. He further submits that the civil suit has been filed for declaration of the sale deed as void and the order passed by the Tahsildar as
null and void but they cannot be punished in civil proceeding for which the complaint is the only remedy available to the complainant as the Police has
not registered a case, therefore, both proceedings can run simultaneously. Now the Panchayat has cancelled the earlier resolution passed in favour of
applicants No.1 to 4.
I have heard learned counsel for the parties and perused the record.
The alleged incident is said to have taken place in the year 2010-11. Thereafter mutation proceedings were initiated and the civil suit has been filed
and there is no allegation that after that they have committed any further offence. The arrest of the present applicants is not required in the matter. In
a complaint case the Court is competent to examine the matter on the basis of evidence in trial. Since then the JMFC issued notice for appearance of
applicant after taking cognizance, there is no order on record by which any warrant has been issued against them. Hence, applicants are directed to
appear before the trial Court on the next date of listing and the trial Court shall consider and dispose of their application filed under section 439 Cr.P.C
on the same day. Till then, applicants be not arrested by the Police after furnishing bail bond of Rs.25,000/- each with one surety in the like amount to
the satisfaction of the arresting officer.
With the aforesaid direction, this application stands allowed.