1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT (Criminal Jurisdiction) Wednesday, the Seventeenth day of August Two Thousand Eleven PRESENT The Hon`ble Ms.Justice R.MALA CRL OP(MD) No.10019 of 2011 1 SHANMUGAM PILLAI 2 S. GLARANCE :PETITIONERS / ACCUSED NOS.1&2 -Vs- THE STATE REP.BY THE INSPECTOR OF POLICE, LAND GRABBING PREVENTION SPECIAL WING, TUTICORIN, TUTICORIN DISTRICT. CRIME NO.39/2011 :RESPONDENT / COMPLAINANT Arumugam :Intervenor(MP(MD)NO.1/11) For Petitioner:Mr.G.R.Swaminathan for M/S.K.KANNAN,Advocate For Respondent:MR.A.RAMAR, ADDITIONAL PUBLIC PROSECUTOR. For Intervenor:Mr.R.Anand, Advocate. PETITION FOR ANTICIPATORY BAIL Under Sec.438 Cr.P.C. ORDER:The Court Made the following order:- The petitioners/Accused Nos.1 and 2 apprehend arrest at the hands of the respondent police for the alleged offences punishable under Sections 468,471,420 and 120(B) I.P.C. in Crime No.39 of 2011 on the file of the respondent police and hence, seek anticipatory bail. 2.The learned Counsel for the petitioners would submit that the petitioners are arrayed as A1 and A2 and that A3 has already been arrested and remanded in judicial custody. The property originally belonged to A1 and he suffered a decree of specific performance and that the decree-holder, one Srikumar got a decree on 10.04.1992 against which the first accused preferred an appeal which was dismissed on 14.06.1996. After the dismissal of appeal, Srikumar got a Sale Deed by a Court of law, but he has not taken delivery of possession within a statutory period of 12 years and so executed a power of attorney in favour of A2. A2 in turn sold the property to A3 and A1 has got prescribed title for adverse possession and that the petitioner herein preferred a complaint against the de-facto complainant and the predecessor in title, which was registered in a case in Crime No.228 of 2009 before the Kulasekaran Pattinam Police Station. Hence the petitioners apprehend arrest and they pray for their enlargement on anticipatory bail. 3.Refuting the same submissions, the learned counsel for the de-facto complainant submits that A1 is fully award of the decre of specific performance and he executed a power of attorney to A2. A2 sold the same to A3 with the de-facto complainant. Since the purchase of property was on 05.04.2010, mutation of revenue records and electricity service connection also transferred. The petitioners are fully aware that they are https://hcservices.ecourts.gov.in/hcservices/ 2 not having title over the property and they created the documents and so complaint was given on 31.07.2011 and the investigation is at earlier stage and hence he prays for dismissal of this application. 4.The learned Government Advocate(Criminal Side) submits that A1 is the owner of the property and he has suffered a decree of specific performance but he without bona fide title over the property, has executed a power of attorney to A2 who in turn sold the property to A3. A2 and A3 who are the brothers working under A1, created the documents and the investigation is earlier stage. Hence,he prays for dismissal of this petition for anticipatory bail. 5.Considering the submissions made by the counsels and also the documents. Admittedly, the first petitioner was the owner of the property and he was entered into a sale agreement with one Srikumar since the first petitioner is not executed a sale deed, so Srikumar forced to filed a suit for specific performance against the first petitioner and obtained a decree of specific performance. Against the decree the first petitioner herein preferred a first appeal and the same was dismissed on 14.06.1996. Srikumar got the Sale Deed from the Court of law, on 31.03.1999. He executed a sale deed in favour of the de-facto complainant on 05.04.2010. But the first respondent herein executed a power of attorney in favour of A2 and A3 in turn executed a sale deed on 01.12.2010 in favour of A3. A2 and A3 are brothers who are working under A1 and created the documents. 6.The learned counsel for the petitioners would submit that even though the first appellate court has dismissed the appeal on 14.06.1996, he got the sale deed but within 12 years he has not obtained a delivery of possession and hence the first petitioner herein has prescribed the title by adverse possession. But whether the first petitioner is prescribed title by the adverse possession to be decided in the civil forum but not before this forum. Admittedly, the first petitioner has lost his title as per the sale deed dated 31.03.1999 executed by a court of law in favour of Srikumar. Furthermore, Srikumar sold the property on 05.04.2010 in favour of the de-facto complainant before the first petitioner executed a power of attorney in favour of A2, who sold the property in favour of A3. In such circumstances and also considering the fact that the case has been registered only on 31.07.2011 and the investigation is going on, I am not inclined to grant anticipatory bail to the petitioners. Accordingly, this petition is dismissed. sd/- 17/08/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) TO:1.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 2.The Inspector of Police, Land Grabbing Prevention Special Wing, Tuticorin, Tuticorin District. RP/22.08.2011/2P/3C. ORDER IN CRL OP(MD) No.10019 of 2011. https://hcservices.ecourts.gov.in/hcservices/