Madhya Pradesh High Court
Balram vs The State Of Madhya Pradesh on 23 March, 2021
Author: Rajendra Kumar Srivastava
1 MCRC-7698-2021
The High Court Of Madhya Pradesh
MCRC-7698-2021
(BALRAM Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 23-03-2021
Shri Manish Datt, learned Senior Advocate with Shri Mayank Sharma,
learned counsel for the applicant.
Shri Yogendra Das Yadav, learned G.A. for the respondent/State.
This is first bail application under Section 438 of Cr.P.C. has been
filed by the applicant for grant of anticipatory bail.
T h e applicant is apprehending his arrest in connection with Crime
No.22/2021, registered at Police Station-Khurai Shahri, District-Sagar (M.P.)
for offence punishable under Section 420 read with Section 34 of the IPC.
As per prosecution case, on the written complaint of S.D.M. Khurai,
police registered the FIR against the applicant and other co-accused person
under the aforesaid offences for illegal colonization of the land of Khasra
No.33/2 ad-measuring area 1.78 Hectare situated at Village Simaria Ghat.
Learned Senior counsel for the applicant submits that no offence under
Section 420 of IPC is made out against the applicant as he neither cheated
anyone nor assured anyone to develop the colony. There is no cogent or
plausible material available against the present applicant. On account of need
of money, the applicant has sold the part of land to the person who was very
well aware with the fact that the land was not diverted and was agricultural.
No complaint has been filed by the any person who purchased the land from
the applicant. By way of filing an affidavit, the applicant contended that
neither he advertised for developing the colony nor raised any construction
upon there. Besides the above, he argued that the principal of Arnesh
Kumar's case are also applicable to the applicant. Learned Senior counsel has
also produced the copy of order dated 26.02.2021 in M.Cr.C.No.7800/2021
(Imran V. State of M.P.) passed by Co-ordinate Bench of this Court.
On the other hand, learned G.A. for the respondent/State opposes the
said application submitting that allegations levelled against the applicant are
2 MCRC-7698-2021
specific and therefore, he may not be released on bail.
Heard both the parties and perused the case diary.
On perusal of case diary, prima facie, the allegation against the present
applicant is that he along with co-accused were developing the illegal colony
on the agricultural land without obtaining statutory permission under the law
made in this regard.
Learned senior counsel raised the ground of non-applicability of
section 420 of IPC inter-alia on the ground that no complaint has been filed
against the applicant in individual capacity for illegal colonization but looking
to the fact that the investigation is still pending and the other enactment
provides the punitive provision for illegal colonization.
I t reflects from the case diary that the applicant has executed sale-
deeds of small part of agricultural land to some person and the intention of
developing a colony cannot be discarded.
Considering the facts and circumstances of the case, I am not inclined
to allow this bail application.
However, looking to the fact that the offence involved in the case are
not punishable with more than 7 years of imprisonment and Section 41(1) of
Cr.P.C. provides that the offences for which punishment prescribed is
imprisonment for a term upto seven years, the accused may be kept in
custody only if the condition enumerated in Section 41(1)(b)(ii) of Cr.P.C.
exist. In Arnesh Kumar's case [(2014) 8 SCC 273] , the Hon'ble Apex
Court has held as under:-
"..........the arrest effected by the police officer does not satisfy the
requirements of Section 41 of the Code, Magistrate is duty bound not to authorise
his further detention and release the accused......".
Therefore, in view of the observations laid down in the judgment
referred above, I deem fit to direct as under :
(i) That, the police may resort to the extreme step of arrest only when
t h e same is necessary and the applicant fails to cooperate in the
investigation.
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(ii) That, the applicant should first be summoned to cooperate in the
investigation. If the applicant cooperates in the investigation then the
occasion of his arrest should not arise.
(iii) That, if the applicant-accused is arrested and he wants to file
application under Section 439 of Cr.P.C. for regular bail before lower
Court, then he will be produced before the lower Court without any delay.
Lower Court is also directed to consider his bail application as
expeditiously as possible, preferably, on the same day.
This petition is disposed off with the aforesaid directions.
C.C. as per rules.
(RAJENDRA KUMAR SRIVASTAVA)
JUDGE
sp
Digitally signed by SAVITRI
PATEL
Date: 2021.03.26 10:35:54
+05'30'
