BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Wednesday, the Twenty Third day of November Two Thousand Eleven PRESENT The Hon`ble Mr.Justice V.PERIYA KARUPPIAH CRL OP(MD) Nos.14822, 14825, 14835 & 14848 of 2011 BAGATHSING MOHAMMED : PETITIONER/ACCUSED NO.7 CRL OP(MD) Nos.14822 of 2011 KAJA NIJAMUDEEN : PETITIONER/ACCUSED NO.8 CRL OP(MD) Nos.14825 of 2011 KAJA SHAHUL HAMEED FATHIMUTHU JOHRA AHAMED NACHIYA KAJA MASOOD SABIYUL KATHIRI KAJA SALAHUDEEN BASHEER AHAMED : PETITIONERS/ACCUSED NOS.1 to 6 CRL OP(MD) Nos.14835 of 2011 SAMSUDEEN : PETITIONER/ACCUSED NO.9 CRL OP(MD) Nos.14848 of 2011 YAKOOP : INTERVENER IN ALL THE PETITIONS Vs. THE STATE REP.BY THE INSPECTOR OF POLICE CITY CRIME BRANCH, (LAND GRABBING) TIRUNELVELI, TIRUNELVELI DISTRICT. IN CRIME NO.56 OF 2011 : RESPONDENT/COMPLAINANT IN ALL THE PETITIONS For Petitioner : M/S. K.K.Ramakrishnan, Advocate for the petitioners/A1-6 in Crl.O.P.(MD) No.14835/2011 For Petitioner : M/S. K.R.LAXMAN Advocate for the petitioner/A7 in Crl.O.P.(MD) No.14822/2011 For Petitioner : M/S.Mr.Veera Kathiravan, learned counsel for Mr.S.N.Seeni Mohammed, Advocate for the petitioner/A8 in Crl.O.P.(MD) No.14825/2011 For Petitioner : M/S. S.M.A.JINNAH Advocate for the petitioner/A9 in Crl.O.P.(MD) No.14848/2011 For Intervenor : M/S. Mr.V.Kathirvelu, learned senior counsel for Mr.H.Arumugam, Advocate in all the petitions https://hcservices.ecourts.gov.in/hcservices/ For Respondent : Mr. K.S.DURAIPANDIAN Additional Public Prosecutor PETITION FOR ANTICIPATORY BAIL Under Sec. 438 Cr.P.C. ORDER : The Court Made the following order :- The petitioners/A1 to A6 in Crl.O.P.(MD) No.14835 of 2011, petitioner/A7 in Crl.O.P.(MD) No.14822 of 2011, petitioner/A8 in Crl.O.P.(MD) No.14825 of 2011 and the petitioner/A9 in Crl.O.P.(MD) No.14848 of 2011, who apprehend arrest at the hands of the respondent police in crime No.56 of 2011, for the alleged offence punishable under Sections 465, 420, 470 and 471 I.P.C. on the file of the respondent police, have filed these petitions, under Section 438 of the Code of Criminal Procedure, seeking anticipatory bail. 2. Heard Mr.K.K.Ramakrishnan, learned counsel appearing for the petitioners/A1-6 in Crl.O.P.(MD) No.14835 of 2011, Mr.K.R.Laxman, learned counsel appearing for the petitioner/A7 in Crl.O.P.(MD) No.14822 of 2011, Mr.Veera Kathiravan, learned counsel for Mr.S.N.Seeni Mohammed, learned counsel appearing for the petitioner/A8 in Crl.O.P.(MD) No.14825 of 2011 and Mr.S.M.A.Jinnah, learned counsel appearing for the the petitioner/A9 in Crl.O.P.(MD) No.14848 of 2011 and Mr.V.Kathirvelu, learned senior counsel for Mr.H.Arumugam, learned counsel appearing for the intervenor in all the applications and Mr.K.S.Duraipandian, learned Additional Public Prosecutor, appearing for the State. 3. Mr.Veera Kathirvan, who appeared on behalf of Mr.S.M.A.Jinnah, learned counsel appearing for the petitioner/A9 in Crl.O.P.(MD) No.14825 of 2011 would submit in his argument that the defacto complainant has presented the complaint, which was registered in crime NO.56 of 2011 on the file of the respondent police, in which, the petitioner in Crl.O.P.(MD) No.14835 of 2011 are ranked as A1 to A6, the petitioner in Crl.O.P.(MD) No.14822 of 2011 is ranked as A7, the petitioner in Crl.O.P.(MD) No.14825 of 2011 is ranked as A8 and the petitioner in Crl.O.P.(MD) No.14848 of 2011 is ranked as A9 and the main accusation was that A1 to A6 sold the property of an extent of 25 cents out of 1.44 acres in S.No.489 of the suit village on 22.06.2011, without any rights in the suit property and A1 to A6 had also executed a power deed on 30.08.2011 in favour of A8 and A9 was said to have arranged for selling the said land in favour of A7 and they have collectively committed the offence. 4. He would further submit in his argument that the alleged purchaser of a land measuring 24 cents viz., Syedunnisha, has filed a suit in O.S.No.123 of 2011 on the file of the Sub Court, Tirunelveli and the right over the said 24 cents as well as the remaining property are subjudice in the civil forum and the remaining property in the said S.No.489/1 in the suit village, will not be further proceeded with and therefore, there cannot be any serious prejudice caused to the defacto complainant or to the investigation. https://hcservices.ecourts.gov.in/hcservices/ 5. He would further submit in his argument that A9 was acting as the panchayatdar in order to compromise the matter and he has no participation in the alleged offence. He would further submit that A7 was a bonafide purchaser on the basis of the release deed dated 15.11.2010 and therefore, there cannot be any hurdle for granting anticipatory bail to A7, since the power of attorney executed in favour of A8, is intact without making any transfer of property in respect of the remaining 1 acre 19 cents and there is no offence committed by A8. 6. He would further submit that A1 to A6 have also acted on the basis of the release deed dated 15.11.2010 and the validity of the said sale deed has to be tested in the civil suit pending before the Civil Court and the criminality can be found only at the time of completion of investigation and therefore, all the accused persons are entitled for anticipatory bail. 7. The learned counsel appearing for A1 to A6, A7 and A9 have also adopted his arguments. 8. The learned senior counsel Mr.V.Kathirvelu, appearing on behalf of all the intervenors would submit in his argument that the property was originally owned by one Mohammed Nagoor Meeran Lebbai, by virtue of the sale deed dated 13.05.1909, in his favour and the said property devolved upon his 1st wife viz., Ahamed Meeral Beevi and she, in turn, executed a power deed in the year 1918 in favour of her step son Kader Mohideen through the co-wife Fathumal Beevi and in pursuance of said power deed, the said Kader Mohideen, executed a sale deed dated 23.03.1922 in favour of Sheik Ibrahim Mohammed Lebbai and he, in turn, in the year 1947 executed a sale deed in favour of Sheik Ibrahim and Ahamed Meeran and the said purchasers had sold the property on 30.04.1960 in favour of one Mohideen Pichai and the said purchaser sold the said property in favour of M.A.Wakaf and Mohammed Abdul Nabi and they sold in turn to Meenachiammal in the year 1980 and the said Meenachiammal sold the same to Mohideen Kutti in the year 1981 and the same was executed in favour of power of attorney Abdul Saleem, in turn, he sold 48 cents to Yackoop in the year 1987, 24 cents to Jaffar in the year 1986, 24 cents to Zeenath, 24 cents to Mohammed Yusuf Siddique and yet another 24 cents to one Jafar in the year 1987. 9. He would further submit in his argument that these transactions, commencing from 1918 onwards, have been referred to in the release deed dated 15.11.2010 and A1 to A6 were very much aware of these transactions and had also the knowledge that they have no title to convey, but, they had executed the sale deed, by creating the release deed dated 15.11.2010, in favour of A7 dated 22.06.2011 and the said sale is in dispute in O.S.No.123 of 2011 before the Sub Court, Tirunelveli. He would further submit that the criminality in the minds of A1 to A6, A7 and A9 is clearly visible and therefore, they are not entitled for anticipatory bail. 10. The learned Government Advocate (criminal side) would submit in his argument that the documents relating to the property are commencing from 1918 to till date and those documents are to be collected and perused and investigation has to be proceeded with. According to the allegations in the complaint, the accused persons https://hcservices.ecourts.gov.in/hcservices/ have acted with intention to defraud the true owner. With reference to the documents, there is a need and necessity for custodial interrogation. In the said circumstances, the anticipatory bail as sought for by petitioners may not be considered. He would further submit that if for any reason, this Court is of the view that it is similar to civil matters and anticipatory bail has to be granted to the petitioners, stringent conditions have to be imposed against all the petitioners for the in-secured presence towards further investigation and their interrogation. 11. I have given anxious thoughts to the arguments advanced on either side. 12. According to the submissions of the learned counsel appearing for all the sides, it could be seen that the total extent of the property is 1 acre 44 cents and out of 1 acre 44 cents, 25 cents were sold by A1 to A6 in favour of A7 on 22.06.2011. The said sale is questioned as fraudulent act played to cheat the true owner. According to the further submissions, we could understand that A1 to A6 have derived the title through a release deed dated 15.11.2010. However, it was contended by the learned senior counsel appearing for the intervenors that the said release deed itself refers to the title deeds of the predecessor in title of the defacto complainant. 13. According to him, A1 to A6 are very much aware of the title of the defacto complainant. No doubt, it is true that the defacto complainant and their group are claiming the title over the entire 1.44 acre, the disputed land. In respect of the sale deed executed by A1 to A6 in favour of A7, the defacto complainant has filed the suit in O.S.No.123 of 2011 on the file of the Sub Court, Tirunelveli and it is pending decision. As regards the remaining 1.19 acres, the disputed lands are concerned, the power deed has been executed by A1 to A6 in favour of A8 and no damage was done or shown in pursuance of the said power deed. 14. As regards the allegations against A9 is concerned, he is said to have arranged for the execution of such sale deed. But, the case of A9 is that he was attempting the compromise in between the parties, since both the parties are belonging to the same Jamath. In such circumstances, I could see that there is a prima facie case for the grant of anticipatory bail in favour of A8 and A9. 15. In respect of the property sold in favour of A7, the suit filed by the defacto complainant has to be decided in the civil forum namely, Sub Court, Tirunelveli and in the meanwhile, the validity of the said sale deed dated 22.06.2011 can be considered regarding the criminality of A1 to A6 and A7 only during the investigation, depending upon the decision reached by the said Court. 16. Whether there is any criminality in the minds of A1 to A6 in executing the sale deed in favour of A7 and power deed in favour of A8 is also depending upon the validity of the release deed dated 15.11.2010. In such circumstances, I could see that A1 to A6, A7 and A8 are having permanent residence. If stringent conditions are imposed, there could not be any absconding of the accused from the clutches of law. The custodial interrogation as argued by the learned Government Advocate (criminal side), may not be necessary https://hcservices.ecourts.gov.in/hcservices/ since the evidence mainly relied upon by the defacto complainant and the investigating agency would be depending upon the documentary evidence. Therefore, the secured presence of A1 to A9 alone to be considered for the purpose of ordering anticipatory bail. As already found that the petitioners are having permanent residence, this Court is inclined to grant anticipatory bail, but with stringent conditions. 17. Accordingly, the petitioners are directed to be released on bail, in the event of their arrest or on their appearance before the Judicial Magistrate concerned on executing a separate bond for a sum of Rs.10,000/- (Rupees Ten thousand Only) with two sureties each for a like sum to the satisfaction of the learned Judicial Magistrate No.1, Tirunelveli and on further condition that A1 to A7 and A8 shall appear before the respondent police station daily at 10.30 a.m. until further orders and A9 shall appear before the respondent police as an when required. Further, the accused persons 1 to 6 shall not indulge in creating any further transactions in respect of the disputed land viz., 1.19 acres either by themselves or through A8. A7 shall not effect any transfer or any encumbrance in respect of the property covered under the sale deed dated 22.06.2011 till further orders. 18. The petitioners shall appear before the Magistrate concerned within a period of 15 days, failing which, the anticipatory bail granted shall stand automatically cancelled. Sd/- 23/11/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO 1. THE JUDICIAL MAGISTRATE NO.1, TIRUNELVELI. 2. -DO- THRO' THE CHIEF JUDICIAL MAGISTRATE, TIRUNELVELI. 3. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. 4. THE INSPECTOR OF POLICE, CITY CRIME BRANCH, TIRUNELVELI CITY. +1 CC to M/S. S.M.A.JINNAH Advocate SR.No.41141 +1 CC to M/S. H.ARUMUGAM Advocate SR.No.41388 +1 CC to M/S. S.N.SEENI MOHAMED Advocate SR.No.41139 +1 CC to M/S. K.K.RAMAKRISHNAN Advocate SR.No.41140 ORDER IN CRL OP(MD) Nos.14822, 14825, 14835 & 14848 of 2011 Date :23/11/2011 NSV/28.11.11/5P/9C https://hcservices.ecourts.gov.in/hcservices/