Jammu & Kashmir High Court

Ravinder Gupta vs Union Territory Of J&K on 17 October, 2022

     IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU



                                             Reserved on : 29.09.2022
                                             Pronounced on : 17.10.2022

                                            Bail App No.306/2022


Ravinder Gupta                                               .... Petitioner(s)

                   Through: Mr. Aseem Kumar Sawhney, Advocate
       Versus

Union Territory of J&K                                      ...Respondent(s)

                   Through:     Mr. Pawan Dev Singh, Dy. AG

CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                               JUDGMENT

1. The instant application has been moved by the petitioner/accused,

whereby he has sought bail in a case arising out of FIR No.53/2022 for

offences under Sections 420, 467, 468, 379, 504, 506 IPC registered with

Police Station, Gangyal, Jammu.

2. The facts leading to the registration of aforesaid FIR are that on 18 th

May, 2022, the complainant Kamal Nabh Sharma lodged a written

complaint with the Police alleging therein that the petitioner herein has

illegally/ forcibly taken possession of his land situated at Greater Kailash,

Jammu. It was further submitted that the complainant had purchased a piece

of land measuring 15 ½ marlas from attorney holder - Abdul Majid and the

said land is falling in Khasra 549 min. According to the complainant, a sale

deed was registered in his name and mutation was also attested in his favour.

He had constructed a boundary wall over the plot of land. He remained busy

with his service career and when, after his retirement, he visited his plot of

land, he found that the same has been illegally encroached upon and

occupied by the petitioner, who, according to him, is a notorious land

grabber. The complainant goes on to submit that he had approached the

Assistant Commissioner Revenue on 12th May, 2015 and his application was

marked to Tehsildar, Bahu for necessary action, whereafter the Patwari

furnished his report in his favour. He has further submitted in the complaint

that when he visited house of the petitioner and asked him to vacate the land,

he was abused and threatened by him. He was further told by the petitioner

that the land actually belongs to him. He was given by the petitioner a copy

of the documents relating to the land, which, according to the complainant,

are fake and forged. On the basis of the aforesaid report, the FIR came to be

registered and investigation was set into motion.

3. During investigation of the case, the petitioner was arrested on 19th

May, 2022. The investigation is stated to be in progress and it has been

submitted by the respondent that demarcation of the disputed land is

required to be conducted and the verification of the documents produced by

the petitioner is also required to be undertaken.

4. The petitioner has contended that he has not committed any offence

and that the dispute between the petitioner and the complainant is purely of

civil nature relating to demarcation of the land. It has been submitted that the

petitioner has not committed any offence even, as per the allegations made

in the FIR, and as such, he cannot be denied the concession of bail.

5. The application has been resisted by the respondent by filing

objections thereto. In the objections, the respondent has reiterated the

allegations made in the FIR. It has been contended that the petitioner is a

habitual offender, inasmuch as, 22 FIRs stand registered against him. It has

been further contended that the petitioner has been booked under the Public

Safety Act and has been kept in preventive detention because of his criminal

background. It has also been averred in the objections that the investigation

is still in progress and, as such, the concession of bail cannot be given to the

petitioner at this stage.

6. It appears that the petitioner had approached the learned Judicial

Magistrate 1st Class (City Judge), Jammu as well as learned Principal

Sessions Judge, Jammu for grant of bail but he has failed to get the

concession of bail from both the Courts below.

7. I have heard learned counsel for the parties and perused the material

on record.

8. The guidelines relating to grant of bail have been laid down in

Sections 437 and 439 of Cr.P.C. While in Section 437 Cr.P.C, certain

restrictions and conditions have been laid down for grant of bail by a Court,

the power to grant bail under Section 439 Cr.P.C for the High Court or the

Sessions Court is wider. The overriding considerations in granting bail as

laid down in Section 437 (1) and Section 439(1) of Cr.P.C, are the nature

and gravity of the offence, the frivolity or otherwise of the prosecution case,

the position and status of the accused with reference to the victim and the

witnesses, the likelihood of accused fleeing from justice, the chances of

repeating of offence by the accused, the chances of tampering with the

witnesses, the stage of investigation and the public interest.

9. The Supreme Court in the case of Mahipal vs. Rajesh Kumar and

another, (2020) 2 SCC 118 ,while discussing the amplitude and power of

the Court under Section 439 Cr.P.C, has observed as under:

"The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system."

10. From the aforesaid discussion of law on the subject, it is clear that

while nature of offence and severity of punishment is an important

consideration while considering the bail plea of an accused, a prima facie

view of involvement of the accused in the alleged crime is a factor which is

also required to be considered. On this aspect of the case, the learned

counsel for the petitioner has taken me through the contents of the FIR. He

has contended that as per the contents of the FIR, the petitioner herein

claims to be in possession of the land belonging to the complainant on the

basis of certain documents, which, according to the complainant, are forged.

The petitioner has placed on record copy of sale deed dated 29 th July, 2010

executed in his favour and in favour of his wife, which relates to land

comprised in Khasra No.631 min of village Sunjwan. Another copy of lease

deed of the same date executed in favour of the petitioner and his wife

relates to land under Khasra No.630 min of revenue village Sunjwan. Thus,

according to the petitioner, he is owner in possession of the land under

Khasra No.631 min and lessee of land under Khasra No.630 min of village

Sunjwan, whereas the complainant claims to be owner of land under Khasra

No.549 min of the same village. Learned counsel for the petitioner has

submitted that it is a case of dispute relating to demarcation of the land

owned by the petitioner and the land owned by the complainant and not a

case of petitioner having forged documents in his favour. Learned counsel

has further argued that at best it can be a case of criminal trespass and

criminal intimidation against the petitioner and both these offences are

bailable in nature. The learned Counsel has further submitted that order of

preventive detention passed against the petitioner stands quashed by this

court.

11. It would be premature for this Court to deeply analyze the allegations

made in the FIR lest it may prejudice the case of the prosecution. However,

there appears prima facie merit in the submission made by the learned

counsel for the petitioner that the dispute between the petitioner and the

complainant appears to be essentially relating to demarcation of the land or

at best a case of criminal trespass.

12. Apart from the above, record of the case shows that the petitioner has

been in custody since 19th May, 2022 and by now investigation of the case

must have progressed substantially. Even otherwise, as per the objections

filed by the respondent, the only thing which is to be investigated is the

verification of the documents produced by the petitioner and demarcation of

the disputed land. For the said purpose, further incarceration of the petitioner

may not be necessary.

13. It has been vehemently contended by the learned counsel for the

respondent that the petitioner is a history-sheeter, inasmuch as 22 FIRs stand

registered against him and, as such, he does not deserve the concession of

bail. It seems that the learned Principal Sessions Judge, Jammu as well as the

Judicial Magistrate 1st Class (City Judge), Jammu were persuaded by this

aspect of the matter in refusing the concession of bail to the petitioner. It is

true that the petitioner has been involved in a number of FIRs but he has

placed on record copies of the orders passed by the Courts in at least six

cases in which the petitioner has not even been put to trial but has been

discharged at the stage of framing of charges itself, which supports the

contention of learned Counsel for the petitioner that most of these cases are

vexatious in nature The respondent has not placed on record anything to

show that the petitioner has been convicted in any of these FIRs. Therefore,

merely because a number of FIRs stand registered against the petitioner, he

cannot be denied concession of bail, particularly, when his involvement in

commission of a non-bailable offence is not prima facie shown from the

contents of the FIR. Even otherwise, there is nothing on record to show that

the petitioner has either the propensity to tamper with the prosecution

witnesses or to thwart the course of investigation.

14. For the foregoing reasons, this petition is allowed and the petitioner is

admitted to bail subject to the following conditions:-

(i) That he shall furnish personal bond in the amount of Rs.50,000/

with one surety of the like amount to the satisfaction of the

Investigating Officer;