1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Thursday, the Twenty Fifth day of August Two Thousand Eleven PRESENT The Hon`ble Ms.Justice R.MALA CRL OP(MD) Nos.10297, 10543, ,9190, 9191, 9236, 9185 & 10834 of 2011 A.SWAMINATHAN ...PETITIONER/A6 IN CRL.OP.10297/11 1.VALAMANGAI NACHIYAR 2.SUBBULAKSHMI 3.SANKARIDEVI 4.RENGANAYAGI ..PETITIONERS/A8 to A11 IN CRL.OP.10543/11 K.N.NEHRU ... PETITIONER IN CRL.OP.9190/11 M.ANBALAGAN ... PETITIONER IN CRL.OP.NO.9191 /11 R.GURUSANKARANARAYANAN ...PETITIONER/A7 IN CRL.OP.NO.9236/11 1.G.RANGANATHAN 2.G.SUBRAMANIAM ...PETITIONERS IN CRL.OP.NO.9185/11 K.N.RAMAJEYAM ...PETITIONER/A2 IN CRL.OP.NO.10834/11 Vs STATE REPRESENTED BY THE INSPECTOR OF POLICE, CITY CRIME BRANCH POLICE STATION, TRICHY DISTRICT. ...RESPONDENT IN CRL.OP.10297, 9190 & 9191 & 10834/11 1.STATE REPRESENTED BY THE INSPECTOR OF POLICE, CANTONMENT[L & O] POLICE STATION, TRICHY DISTRICT. 2.THE INSPECTOR OF POLICE, CITY CRIME BRANCH, (SPECIAL CELL FOR LAND GRABBING) TRICHY ...RESPONDENTS IN CRL.OP.9236, 9185/11 STATE REPRESENTED BY THE INSPECTOR OF POLICE, DISTRICT CRIME BRANCH, [LAND GRAB],TRICHY. .. RESPONDENT IN CRL.OP.10543/2011 https://hcservices.ecourts.gov.in/hcservices/ 2 For petitioner : MR.ASHOKKUMAR, Senior counsel for M/S T.A.OMPRAKASH, Advocate in Crl.OP.No.10297/11 M/S A.SRINIVASAN, Advocate in Crl.OP.No.10543/11 M/S T.A.OMPRAKASH, Advocate in Crl.OP.Nos.9190 & 9191/11 MR.PRABHAKARAN, Advocate for M/S A.SRINIVASAN, Advocate in Crl.OP.No.9236/11 M/S N.MOHIDEEN BASH, Advocate in Crl.OP.No.9185/11 M/S K.JEGANATHAN, Advocate in Crl.OP.No.10834/11 For Respondent : MR.A.G.CHELLAPANDIAN, Additional Advocate General IN ALL THE PETITIONS PETITION FOR ANTICIPATORY BAIL Under Sec.438 Cr.P.C. in all the petitions ORDER : The Court Made the following order :- The petitioners are arrayed as A1-A11 in Crime No.21 of 2011 and they apprehend arrest at the hands of the respondent police for the alleged offence punishable under Sections 147, 148, 447, 452, 427, 294(b), 506 (ii), 120(B) and 34 IPC read with Sections 3 of TNPPDL Act, on the file of the respondent police and hence, seek anticipatory bail. 2. Mr.Ashok Kumar, learned senior counsel appearing for A1 and A2 would submit that A1 and A2 are nothing to do with the commission of offence, as per the averment in the complaint, the occurrence said to have been taken on 23.12.2007 midnight i.e on 24.12.2007 at about 1.30 am., but there is no allegation against A1 and A2 that they have participated in the commission of offence, that even though the defacto complainant herein gave a complaint in Crime No.1451 of 2007 there is no allegation against A1 and A2 and the defacto complainant has filed an application for transfer of investigation in Crl.OP.(MD).No.10035 of 2008 for change of investigation, in that also he has never made any averment against A1 and A2. The only averment is that since the 3rd and 4th accused are closely associated with A1 and A2 they want the transfer of investigation and the same has been dismissed as infructuous since the investigation agency has filed the referred charge sheet as 'Mistake of Fact'. He further submitted that they have filed an SLP against the said order, which was dismissed and then only, they filed the protest application which is still pending. 3. He would further submit that the defacto complainant is not entitled to give a second complaint on the basis of the same incident taken place earlier, which is also pending. He would further submit that the properties are originally belonging to one Ramakrishnan and he died leaving behind his Lrs A7 to A11 and since, they are indebted with several persons, they have entered into a sale agreement with A3 and received a sum of Rs.50 lakhs by way of Demand Draft for discharging the portion of the loan to SIPCOT and the possession was handed over to him and since the possession was disturbed, A3 has filed OS.No.599 of 2007 before the I Additional Subordinate Judge, Trichy and for injunction, he filed I.A.No.430 of 2007 and on 19.12.2007 and he obtained an interim order of injunction and the same is in force. 4. He would further submit that the defacto complainant on the basis of the Memorandum of Understanding entered into A7 to A11 on 23.11.2005 https://hcservices.ecourts.gov.in/hcservices/ 3 he filed O.S.No.119 of 2010 for specific performance, which was pending before the Principal District and Sessions Judge, Trichy and hence, the issue is relating to civil nature and there is no need for custodial interrogation, He would further submit that there is a delay in preferring the complaint and since A1 and A2 apprehend arrest they have come forward with the present application. 5. The learned counsel appearing for A3 and A4 would submit that A3 is only the agreement holder and in pursuance of the agreement dated 23.12.2005 he was put into possession and he paid a sum of Rs.50,000/- per month as rent and A4 is none other than brother of A3 and he has not taken any part and his name has not been found place in the previous proceedings and he prayed for the enlargement of anticipatory bail. 6. The learned counsel appearing for A5 and A6 would submit that A5 is only a Deputy Mayor of Trichy and A6 is the investigation officer in Crime Nos.1450 and 1451 of 2007 and they are nothing to do with the commission of offence and prayed for the enlargement of anticipatory bail 7. The learned counsel appearing for A7 to A11 would submit that A7 to A11 are the owners of the property in question and they have entered into a sale agreement with A3 on 12.03.2005 and the possession has been handed over and advance amount of Rs.50 lakhs has been paid by way of Demand Draft in favour of SIPCOT and monthly rent has been fixed as Rs.50,000/- per month. He would further submit that they had signed in the blank paper on the representation made by the defacto complainant, which was fabricated as Memorandum of Understanding and hence, they are nothing to do with the commission of offence. Further more, he would further submit that the suit filed by the defacto complainant is pending in which the accused A7 to A11 are the parties and it is only a civil nature and since they apprehend arrest they have come forward with the application for enlargement of anticipatory bail. 8. The learned Counsel appearing for the Intervenor/defacto complainant in Crl.OP.(MD).Nos.9190 and 9191 of 2011 would submit that crime No.1451 of 2007 is concerned the incident had been taken place prior to 22.12.2007 and even though it was referred as 'Mistake of Fact' the protest petitioner has been filed and the same is pending. He would further submit that the present complaint has been given only on the incident taken place on 24.12.2007 at 1.30 am and hence, there is no connection between the crime No.1451 of 2007 and the crime No.21 of 2011 i.e., the present complaint. He would further submit that the sale agreement in favour of A3 dated 12.03.2005 is a fabricated one and it was concocted in a later point of time i.e after 23.11.2005 and in pursuant of Memorandum of Understanding dated 23.11.2005 the possession has been handed over to the defacto complainant and he paid a sum of Rs.2 lakhs per month for 2 years and only on 24.12.2007 at 1.30 am A3, A5 and A6 along with 100 persons dispossessed him and hence the defacto complainant has given a complaint by way of telegram dated 24.12.2007 and no steps has been taken by the police people and hence, he has come forward with the present complaint. He would further submit that the protest petition is pending and A3 has filed an application for withdrawal of the suit in OS.No.599 of 2007 which was dismissed, wherein it has been stated by the learned Judicial officer that the sale agreement dated 12.03.2005 is a fabricated one and since the custodial interrogation is necessary, he prayed for the dismissal of the application. https://hcservices.ecourts.gov.in/hcservices/ 4 9. The Additional Advocate General appearing for the state would submit that even though the incident taken place on 23.12.2007 midnight i.e at 1.30 am on 24.12.2007 and a telegram has been given on 24.12.2007 no case has been registered and on 03.08.2011 only, the case in crime No.21 of 2001 was registered under the provisions of sections 147, 148, 447, 452, 427, 294(b), 506(ii), 120(B) and 34 IPC read with Sections 3 of TNPPDL Act. The investigation has been going on the basis of the complaint given by the defacto complainant in crime No.1451 of 2007 which is related to the incident taken place prior to 22.12.2007 and there is no second complaint for the incident taken place on 24.12.2007 and hence, there is no question of pending of the earlier complaint. He would further submit that the investigation is going on and the delay has been properly explained and since the custodial interrogation is necessary he prayed for the dismissal of the applications. 10. I have considered the submissions made by the learned counsels appearing for the accused persons, intervenors and the learned Additional Advocate General appearing for the state. 11. Admittedly the property in dispute is belonging to one Ramakrishnan, who died leaving behind his legal heirs A7 to A11. Since they are indebted with SIPCOT and other persons, they have entered into a Memorandum of Understanding with the defacto complainant on 23.11.2005. But here A7 to A11 have disputed that they never executed the Memorandum of Understanding. 12. As per the version of the learned counsel appearing for A3, A7 to A11 have entered into a sale agreement with A3 on 12.03.2005 and Rs.50 lakhs has been paid as advanced by way of demand draft in favour of SIPCOT for discharging the loan. The sale price has been fixed as Rs.6,60,00,000/-. In pursuant of that possession has been handed over to A3 and A3 paid Rs.50,000/- per month as rent till the sale deed to be executed. 13. On the basis of the sale agreement dated 15.03.2005 A3 herein has filed the suit in OS.599 of 2007 before the I Additional Subordinate Judge, Trichy and obtained an order of Interim Injunction in IA.No.430 of 2007 on 19.12.2007 and the injunction is in force. Admittedly A3 herein has also filed an application for withdrawing the suit under order 23 Rule 1 C.P.C furthermore, the defacto complainant himself has filed an application for rejection of the plaint and both applications were dismissed, against which, the defacto complainant preferred a revision in C.R.P.(NPD).No.1316 of 2009 which was allowed and remitted back to the trial court for disposal in accordance with law, after marking all the documents on 09.04.2010. It shows that before initiating the criminal complaint before the respondent there are civil proceedings pending between both the parties. Even though it has been stated that no complaint has been registered for the incident took place on 24.12.2007 admittedly except the present complaint no steps has been taken by the defacto complainant,. Since A7 to A11 have disputed that they never executed the Mamorandum of Understanding in favour of the defacto complainant the question as to whether the document is genuine or not has to be decided only at the civil forum. https://hcservices.ecourts.gov.in/hcservices/ 5 14. Furthermore as already stated no complaint has been registered in respect of the incident took place on 24.12.2007 at 1.30 am the present complaint has been registered only on 03.08.2011 and there was nearly 3 ½ years delay in preferring the complaint. It is true on 24.12.2007 the defacto complainant has sent a telegram wherein it has been mentioned about the incident of 24.12.2007. Even though the defacto complainant has taken steps to transfer of the investigation in crime No.1451 of 2007 upto Apex Court he has not given any reason as to why he has not taken any steps to register the case in respect of the occurrence took place at 1.30 am on 24.12.2007. 15. In such circumstances I am of the view that since civil proceedings are pending between both the accused persons and the defacto complainant even it is pending from 2007 all the facts are borne by records and hence, no custodial interrogation is necessary and hence I am inclined to grant anticipatory bail to the petitioners with certain conditions. i) The petitioners/A1 to A11 are ordered to be released on bail in the event of their arrest or on their appearance before the learned Judicial Magistrate NO.I, Trichy and each of them 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 concerned and (ii) the petitioner shall report before the court concerned daily at 10.30 am. Until further orders. Iii) the petitioners shall appear before the respondent police when they received summons for interrogation. iv) A3 is exempted to appear before the learned Judicial Magistrate concerned only on 27.08.2011, 28.08.2011 and 29.08.2011. 16. The petitioners shall comply with the condition stipulated under Section 438 Cr.P.C Scrupulously. 17. The petitioners shall appear before the concerned Magistrate within a period of 15 days from the date on which the order copy is made ready, failing which the petitioner for anticipatory bail stands dismissed. sd/- 25/08/2011 / TRUE COPY / Sub-Assistant Registrar (C.S.) Madurai Bench of Madras High Court, Madurai - 625 023. TO 1. THE JUDICIAL MAGISTRATE NO.I, TRICHY 2. THE CHIEF JUDICIAL MAGISTRATE, TRICHY https://hcservices.ecourts.gov.in/hcservices/ 6 3. THE INSPECTOR OF POLICE, CITY CRIME BRANCH, (SPECIAL CELL FOR LAND GRABBING) TRICHY DISTRICT. 4. THE INSPECTOR OF POLICE, CITY CRIME BRANCH POLICE STATION, TRICHY DISTERCT. 5. THE INSPECTOR OF POLICE, DISTRICT CRIME BRANCH,[LAND GRAB],TRICHY. 6. THE INSPECTOR OF POLICE, CANTONMENT POLICE STATION,TRICHY 7. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI +3. CC to M/S. T.A.OMPRAKASH Advocate SR.No.29098 to 29100 +1. C.C to M/s. N.MOHIDEEN BASHA Advocate SR.No.29126 +1. C.C to M/s. G.R.SWAMINATHAN Advocate, SR.No. 29388 +1. C.C to M/s. K.JEGANATHAN Advocate, SR.No. 29437 +2. C.C to M/s.A.SRINIVASAN Advocate, SR.No. 29380 & 29381 ORDER IN CRL OP(MD) No.10297, 10543, ,9190, 9191, 9236, 9185 & 10834 of 2011 Date :25/08/2011 GH : 06.09.2011 : 6p/16c https://hcservices.ecourts.gov.in/hcservices/