Habib Khan vs The State Of Madhya Pradesh
2021 Latest Caselaw 6714 MP

                                                                           1                             MCRC-49346-2021
                                                The High Court Of Madhya Pradesh
                                                          MCRC-49346-2021
                                                          (HABIB KHAN Vs THE STATE OF MADHYA PRADESH)


                                        Jabalpur, Dated : 23-10-2021
                                              Heard through Video Conferencing.

                                              Shri Vijay Shukla, learned counsel for the applicant.
                                              Shri Satyapal Chadhar, 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.

The applicant is apprehending his arrest in connection with Crime No.421/2021, registered at Police Station Parvati Ashta, District Sehore (M.P.) for offence punishable under Section 339(Ga) of Madhya Pradesh Nagar Palika Adhiniyam, 1961.

A s per prosecution case, on 9.9.2021, complainant Smt. Ankita Bajpai, Naib Tahsildar, Ashta, filed a complaint against the accused/applicant regarding illegal colonization in the agricultural land. The accused/applicant has failed to submit requisite documents for colonization, hence, police has registered the FIR against the

accused/applicant under Section 339(Ga) of Madhya Pradesh Nagar Palika Adhiniyam.

Learned counsel for the accused/applicant submits that accused/applicant did not commit any offence. The accused/ applicant is owner of land bearing Khasra No.122/1, Area 0.596 hectare, situated at Village Dorabad, Tahsil Ashta, District Sehore (MP). Thereafter, the present applicant has diverted the aforesaid land. The aforesaid land is situated at non-planning area and is an agricultural land. There is no construction made by the accused/ applicant. Accused/applicant is 71 years old person and if he is arrested, then his reputation in the area will be tarnished, therefore, he prays for grant of anticipatory bail. The Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2021.10.23 17:47:48 IST 2 MCRC-49346-2021 applicant is ready and willing to cooperate with the investigation. There is no possibility of his absconding or tampering with the prosecution evidence. On these grounds, he prays for grant of anticipatory bail to the applicant.

On the other hand, learned Govt. Advocate for the respondent-State

opposes the said application submitting that allegations levelled against the applicant is specific and therefore, he may not be released on anticipatory bail.

On perusal of case diary, prima facie, the allegation against the present applicant is that he is involved in illegal colonization on the agricultural land without obtaining statutory permission under the law made in this regard.

However, the learned counsel for the applicant raised the the submission that there is no material to show that the applicant has sold the part of land to anyone but as per the report of Revenue Authority, the applicant has constructed a road and small size plot in the alleged land, therefore, intention of developing a colony of the applicant cannot be discarded. The applicant has not produced any cogent material to show the report of Revenue Authority as not believable. The investigation is still pending and therefore it would not be appropriate to release the applicant on anticipatory bail.

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) Signature Not Verified SAN

(ii) of Cr.P.C. exist. In Arnesh Kumar's case [(2014) 8 SCC 273] , the Digitally signed by ASHWANI PRAJAPATI Date: 2021.10.23 17:47:48 IST 3 MCRC-49346-2021 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 the same is necessary and the applicant fails to cooperate in the investigation.

(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 for regular bail before the trial Court, then he will be produced before the trial Court without any delay. Trial 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

A.Praj.

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2021.10.23 17:47:48 IST