Bombay High Court
Kailash Sadashiv Surve vs State Of Maharashtra And Anr on 8 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:1308
Diksha Rane 24. APEAL 77623.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
CRIMINAL APPELLATE JURISDICTION
signed by
DIKSHA
DIKSHA DINESH
DINESH RANE CRIMINAL APPEAL NO.776/2023
RANE Date:
2024.01.11
20:21:40
+0530
KAILASH SADASHIV SURVE ..APPELLANT
VS.
THE STATE OF MAHARASHTRA & ANR ..RESPONDENTS
------------
Adv. Sudeep Pasbola, Adv. Ayush Pasbola, Adv. Sankalp
Vichare for the appellant.
Mr. S. H. Yadav, APP for the State.
Adv. Siddharth Sonaji Ingle a/w. Adv. Akshay B. Gawali &
Adv. Buddhabhushan Kamble for the respondent no.2.
API Sanjay Mohite, Nhvashiva Police Station, Navi Mumbai.
------------
CORAM : M. S. KARNIK, J.
DATE : JANUARY 8, 2024.
ORAL JUDGMENT :
1. Heard learned counsel for the appellant, learned APP
for the respondent no.1 and learned counsel appearing for
the respondent no.2.
2. The appellant is apprehending his arrest in the First
Information Report bearing No.96/2023 registered with Uran
Police Station, Navi Mumbai, for alleged commission of the
offences punishable under Sections 420, 468, 470, 471 read
with 34 of the Indian Penal Code (hereafter 'the IPC' for
short) read with Sections 3(1)(f) and 3(1)(g) of the
Diksha Rane 24. APEAL 77623.doc
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereafter 'the Atrocities Act' for short).
3. Briefly stated it is the case of the respondent no.2 that
the land involved in the complaint belonging to her
predecessors is a tribal land. Her predecessor, deceased
Gopal Lahanya Katkari was cultivating the land as a tenant.
The appellant is the accused no.5. The accused nos.1 to 4
(referred to as 'Gharats') have taken advantage of illiteracy
of Goptal Katkari and incorporated the names of the
accused nos.1 to 4 as heirs by manipulating and forging the
revenue records in connivance with the revenue officers.
The necessary entries in the revenue record indicating such
change was effected in the year 1983. It is further the case
of the respondent no.2 that the accused nos.1 to 4 alienated
the said land in favour of the present appellant in the year
1996. The present appellant is thus the purchaser of the
land from 'Gharats'.
4. Learned APP as well as learned counsel for the
respondent no.2 while opposing this appeal invited my
attention to the observations of the trial Court rejecting the
application for anticipatory bail. Learned counsel
Diksha Rane 24. APEAL 77623.doc
for the respondent no.2 was at pains to submit that the
accused nos.1 to 4 have manipulated and forged the
revenue records and that, admittedly the accused nos.1 to 4
who are not the legal heirs of the deceased Gopal Katkari, in
active connivance with the revenue officers effected entries
in the revenue records detriment to the interest of the
respondent no.2, projecting 'Gharats' to be the legal heirs of
the said Gopal Katkari. It is the submission of learned
counsel that the respondent no.2 was cultivating the land
right till she and the other heirs were forcibly dispossessed
by the present appellant sometime in the year 1996.
Learned counsel submitted that the land being a tribal land,
in view of the provisions of the Section 36A of the
Maharashtra Land Revenue Code, 1966, cannot be sold
without permission of the Collector/Competent Authority. It
is submitted that no such permission has been obtained. It
is therefore submitted that dispossessing the respondent
no.2, a tribal, from the land constitutes an offence which
attracts the bar under Section 18 of the Atrocities Act
against the appellant. Learned counsel further submitted
that the appellant was aware that the land in question is
Diksha Rane 24. APEAL 77623.doc
tribal land and therefore, ought to have exercised due
diligence and caution while purchasing the said land from
'Gharats' in the year 1996. It is further submitted that even
prior to 1996, in the application made to the authorities
under the Bombay Tenancy and Agricultural Lands Act
(hereafter 'BTAL Act' for short) in 1955, the appellant as well
as the 'Gharats' had jointly applied for such permission.
Learned counsel for the respondent no.2 invited my
attention to the provisions of Section2(f) and (g) while
urging that the appellant has wrongfully dispossessed the
respondent no.2 who is the member of the Scheduled Tribes
from cultivating the said land.
5. Learned APP in addition submitted that pursuant to the
interim order passed in favour of the present appellant, the
appellant is not co-operating with the investigation. It is
submitted that some other revenue officers involved in the
manipulation of the revenue records are yet to be arrested.
Learned APP submitted that the materials and the charge-
sheet which is filed against the accused nos.1 to 4 would
reveal the involvement of the present appellant as well.
6. I have heard learned counsel. The allegation of the
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respondent no.2 is of land grabbing which undoubtedly is a
serious allegation more so having regard object of enacting
the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 (hereafter 'the Atrocities Act' for
short). The materials and reading of the report of the
investigating officer and even the FIR reveal that the
accusations are primarily against the accused nos.1 to 4
(Gharats) and the revenue officers. After the demise of the
predecessors of the respondent no.2, that is Gopal Lahanya
Katkari in the year 1980, the allegation is that the 'Gharats'
entered their names in the revenue record as legal heirs.
This was as far back as in the year 1983. It is only in the
year 1995, as the materials indicate, that the present
appellant along with the accused nos.1 to 4 filed an
application to the competent authority for permission under
the provisions of the BTAL Act. The registered sale deed
which is executed by 'Gharats' in favour of the present
appellant is dated 3/1/1996. The allegation against the
present appellant is that he should have exercised due
diligence and caution while purchasing the said land. The
allegations proceed on the footing that as the appellant
Diksha Rane 24. APEAL 77623.doc
failed to exercise due diligence, having made an application
in 1995 under the BTAL Act prior to the execution of the sale
deed in 1996, it pre-supposes that the appellant was aware
about the nature of the land being a tribal land. It needs to
be borne in mind that the application under the BTAL Act is
for transfer of tenancy and nothing to do with transfer of a
tribal land. Prima facie, there are no materials to infer that
the appellant had knowledge that the land in question in
occupation of the respondent no.2 is a tribal land.
7. The sale deed in favour of the appellant is of 1996. It
was only in 2009 that the proceedings were initiated before
the revenue authorities by the legal heirs of Gopal Katkari
challenging the mutation entry effected in favour of the
'Gharats'. The proceedings are still pending. Though an
order has been passed in the challenge to the mutation
entry by the revenue officers for deleting the name of the
'Gharats' from the revenue records and entering the name
of the legal heirs of Gopal Katkari including the respondent
no.2, the said order has been stayed by this Court in Writ
Petition No.8439/2023 which is pending as on date. There is
a delay in initiating the revenue proceedings. I may not be
Diksha Rane 24. APEAL 77623.doc
construed as expressing any opinion on such delay as to the
rights of the parties which shall be decided in appropriate
proceedings. The observation is made in the limited context
of deciding this appeal.
8. So far as the contention of learned counsel for the
respondent no.2 that the State Government has issued a
circular dated 31/5/2012 issuing necessary guidelines
regarding the implementation of Section 36 of the
Maharashtra Land Revenue Code, 1974, there is no doubt
that the procedure as required in the said circular has to be
followed. It is always open for the respondent to claim the
restoration of the land under the relevant provisions on the
plea that the 'Gharats' have illegally sold the tribal land
without necessary permission of the competent authority
and as regards their consequent dispossession in
appropriate proceedings.
9. Learned counsel for the respondent no.2 then relied
upon the decision of the Supreme Court in the case of
Shakuntla Devi vs. Baljinder Singh 1 to submit that in
view of the specific bar under Section 18 of the Atrocities
1 (2014)15 SCC 521
Diksha Rane 24. APEAL 77623.doc
Act, since prima facie case is made out against the
appellant, the appeal be dismissed. The question is whether
a prima facie case is made out against the appellant in the
facts of the present case. If that is so, the bar is attracted.
10. From what is discussed above, it is seen that there are
revenue proceedings pending in respect of the mutation
entries which have been effected. Prima facie, it appears
that the appellant is a purchaser of the said land from the
'Gharats'. The accused nos.1 to 4 are alleged to have
manipulated the mutation entries in their favour and to the
detriment of the respondent no.2. As indicated earlier, the
allegation against the appellant is that he has purchased
the said land from the 'Gharats' that is the accused nos. 1
to 4 in 1996 without exercising due diligence and caution
and this is the basis for the respondent no.2 as well as the
investigating agencies for forming an opinion that the
appellant may be aware that the lands in question are tribal
lands to allege that the offence under the Atrocities Act is
made out. Prima facie there is no incriminating material on
record against this appellant to indicate that the appellant
as a purchaser of the land and the consequent
Diksha Rane 24. APEAL 77623.doc
dispossession was aware that the land in question was a
tribal land or that the respondent no.2 is a member of the
Scheduled Tribe.
11. The appellant had attended the investigating officer
but according to learned APP, the appellant is not co-
operating. The appellant must co-operate with the
investigating officer. Learned counsel for the appellant
submits that the appellant shall report to the investigating
officer whenever called or as per the directions of this Court
and co-operate with the investigation.
12. The charge-sheet has already been filed against the
accused nos.1 to 3. In the facts of the present case, prima
facie I am of the opinion that the alleged offence under the
Atrocities Act is not made out against the present appellant
and hence, the bar under Section 18 of the aforesaid Act is
not attracted. It is made clear that the observations in this
order are prima facie in nature limited for deciding this
appeal. The trial Court shall not be influenced by these
observations. Hence the following order.
ORDER
(a) The appeal is allowed.
Diksha Rane 24. APEAL 77623.doc
(b) In the event of arrest in connection with the aforesaid
FIR, the appellant shall be released on bail on furnishing P.R.
bond to the extent of Rs.25,000/-with one or two sureties of
the like amount.
(c) The appellant initially shall report to the concerned
police station on 17th, 18th and 19th January, 2024 between
10.00 a.m. to 1.00 p.m. and thereafter, once in a week that
is every Saturday between 11.00 a.m. and 01.00 p.m. till
filing of the charge-sheet. The appellant shall attend the
investigating officer as and when required.
(d) The appellant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted
with facts of case so as to dissuade him from disclosing the
facts to Court or any Police Officer and should not tamper
with evidence.
13. The appeal is disposed of accordingly.
(M. S. KARNIK, J.)
