Ven. Fr. H.N. Masih vs State Of Madhya Pradesh

 Mr. Kapil Sharma, learned counsel for the complainant. Appearing counsel for the parties heard on I.A.No.4542/2018 filed on behalf of the

complainant K.N. Thapak under Section 301(2) of Cr.P.C. for permitting his counsel to assist the Public Prosecutor. This application has been filed by

the complainant along with the photocopies of the certain documents, whose another copies have been provided to opposite side.

In view of the reasons mentioned in the application, I.A.No.4542/2018 is allowed and complainant's counsel is permitted to assist learned Public

Prosecutor.

Appearing counsel for the parties also heard on I.A.No.4543/2018 filed on behalf of the applicant for taking the supplementary affidavit of the

applicant on record. Copy of the abovementioned I.A. and annexed supplementary affidavit have been provided to opposite side.

In view of the reasons mentioned in the application, I.A.No.4543/2018 is allowed and supplementary affidavit of the applicant is taken on record.

Learned Public Prosecutor appearing on behalf of respondent/State intimates that relating case diary is available, hence, appearing counsel for the

parties heard on alleged first anticipatory bail application under Section 438 of Cr.P.C. filed before this Court by the applicant in relation to Crime

No.240/2018 registered at Police Station Morar, District Gwalior in reference to offences punishable under Sections 420 and 406 of IPC and the

produced case diary and annexed documents filed by the applicant and complainant are perused.

Applicant's anticipatory bail application under the same provision has already been dismissed by the Second Additional Sessions Judge, Gwalior vide

order dated 01.05.2018, whose certified copy is annexed with the application under consideration.

It has been contended by the learned counsel for the applicant that he has been falsely implicated in the crime by the complainant and applicant was

elected in the General Council of Church of India in October, 2014 and was appointed as a Priest (Bishop) of relating church situated at Morar,

Gwalior and by relating Diocese of Nagpur, he was authorized to take all steps in relation to the properties of relating church and on 20.01.2014, an

agreement to sale was executed in shape of MOU (Memorandum of understanding) between applicant and complainant in relation to sale of

agricultural lands of three different survey numbers situated at Purani Chhawani, Gwalior, and it was clearly mentioned in relating MOU that at that

time, title of relating land was disputed and applicant shall initiate the proceedings for correction in revenue record and after correction or mutation in

revenue record, registered sale-deed will be executed and MOU was containing an arbitration clause in case of any dispute between the complainant

and applicant. In MOU, it was clearly mentioned that only Rs. 10 Lacs was received by the applicant and remaining consideration amount was to be

paid at the time of execution of sale-deed only and though, Collector, Gwalior on 20.09.2013, ordered that in revenue record in relation to relating

agricultural lands, name of the Indian Church Trustees, Church of Indian Diocese Nagpur be mutated but later on in revenue appeal, Additional

Commissioner, Gwalior on 20.01.2016 set aside the order of the Collector and ordered that in revenue record, relating lands be recorded as

Government lands and against order of Additional Commissioner, Gwalior, proceedings are pending before Board of Revenue, Gwalior and it is clear

from the FIR that complainant has disclosed the fact in FIR that in March, 2016 complainant was aware of the fact that relating disputed lands have

been sold by Bishop Shridhar Englay, on behalf of Diocese of Nagpur, Church of India to purchaser - Dhirendra vide a registered sale-deed and in

FIR, it is mentioned that complainant paid in total Rs. 1,17,00,000/- in relation to agreement to sale to the applicant but it is also mentioned in FIR that

on the date of agreement, Rs.80 Lacs was paid to the present applicant by complainant and filed photocopy of receipt by the complainant is not

bearing any date and recitals of receipt and FIR are contradictory to conditions mentioned in MOU.

It is further contended by the counsel for applicant that applicant on 01.01.2018 found that complainant K.N. Thapak encroached over some part of

disputed agricultural lands, hence, present applicant after giving a legal notice, filed a civil suit against the State of M.P. and complainant which is

bearing regular Civil Suit No.74-A/18 CIS No.MP07-0100020342018 and presently pending in the Court of Third Civil Judge Class-II, Gwalior and

only after receiving information regarding facts of filing of civil suit by present applicant against complainant, complainant submitted a written

application to police officials in the month of March, 2018 and on the basis of this written application filed by the complainant, above-mentioned crime

was registered on 20.04.2018 and it is further contended that complainant in his written application dated 15.03.2018 submitted to Inspector General of

Police, Gwalior has clearly mentioned and this fact is also mentioned in the FIR that after passing of the above-mentioned order by Additional

Commissioner, Gwalior, complainant was demanding his paid money back from the applicant only and it is clear that complainant has not filed any suit

for specific performance of agreement to sale till date, as the title of relating land is disputed between Government and relating church. Placing

reliance on the case of Inder Mohan Goswami and another Vs. State of Uttaranchal and others, (2007) 12 SCC 1, it is contended that dispute between

the complainant and applicant is prima facie appearing to be purely of civil nature and also placing reliance on the case of Arnesh Kumar Vs. State of

Bihar reported in 2014 (8) SCC 273, it is prayed that in above-mentioned special facts and circumstances, it is clear that applicant is entitled for

anticipatory bail, hence, it is prayed that benefit of anticipatory bail be given to the applicant.

Per contra, above-mentioned prayer was vehemently opposed by learned Public Prosecutor as well as counsel for the complainant, on the grounds

that on the basis of agreement, applicant has received huge money from the complainant, though he was not competent to sale or to make agreement

to sale on behalf of relating church and as on behalf of church relating lands have been sold by Vinay Englay to Dhirendra vide registered sale-deed,

hence, rejection of the anticipatory bail is prayed.

Some important facts appear from the perusal of the police statement of the complainant and his written application dated 15.03.2018 submitted to

Inspector General of Police Gwalior. It is clear from the police statement of the complainant that he is a practicing Advocate and photocopy of the

MOU (agreement to sale) dated 20.01.2014 is filed separately by the complainant also. In agreement dated 20.01.2014, according to its para No-3 it is

clear that the title of relating agricultural lands was disputed and till the correction of the revenue entries or mutation of relating church, the sale-deed

could not be executed by the applicant. It is also clear from the condition No.1 of the MOU that on the date of its execution i.e. 20.01.2014 only Rs.

10 Lacs were paid by the complainant to applicant and remaining consideration amount was only to be paid at the time of execution of sale-deed. It is

clear from the complainant's application and FIR that after passing of the order by the Additional Commissioner, Gwalior declaring the disputed land

as Government land, he was only demanding his money back from the applicant and complainant received knowledge of the fact that in March, 2016

the registered sale-deed by Shridhar Englay has been executed in favour of Dhirendra in relation to same disputed lands, but such Advocate

complainant submitted his written complaint or application firstly in the month of March, 2018 to the Police Authorities.

In view of all these abnormal and special facts and circumstances of the case, without commenting on the merits of the case and in the light of above-

mentioned citations, applicant's case appears fit for granting him the benefit of anticipatory bail with stringent conditions. Accordingly, the anticipatory

bail application is allowed subject to the condition that if the applicant appears before the Investigating Officer (Arresting Authority) on or before

29.06.2018, he shall be released on bail on his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac Only) with two solvent sureties

in the like amount to the satisfaction of the Arresting Officer (Investigating Officer) with conditions that he will co-operate in the investigation and the

applicant shall make himself available for interrogation by the Investigating Officer as and when required and he shall further abide by the other

conditions enumerated in sub-Section (2) of Section 438 of Cr.P.C.

It is made clear that in case if the applicant fails to appear before the Investigating Officer (Arresting Authority) on or before 29.06.2018, then this

order in respect of the applicant shall lose its effect and the Investigating Officer shall be at liberty to take him in custody.

Certified copy as per rules.