Anticipatory bail granted under Section 482 of BNSS considering applicant's prior possession, lack of criminal history, and ongoing civil suit.

ORDER :

(HASMUKH D. SUTHAR, J.)

RULE. Learned APP waives service of notice of Rule for and on behalf of the respondent No.1 – State of Gujarat.

[1.0] By way of the present application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “ BNSS ”), the applicant has prayed for anticipatory bail in the event of arrest in connection with the FIR being C.R. No. 11993010250004 of 2025 registered with Rapar Police Station, Dist. Kachchh (East) Gandhidham, for the offences punishable under Section s 4 (3) and 5(C) of Gujarat Land Grabbing (Prohibition) Act, 2020 .

[2.0] Learned advocate appearing on behalf of the appellant submits that the applicant is innocent and has been falsely implicated in the offence. He is senior citizen and is in possession of the land in question since long. Based on hazy and incorrect facts, complaint is filed. Prior to lodgment of the complaint, in connection with incorrect and faulty measurement of the land in question on the part of DILR and revenue authority, dispute arose between the applicant and revenue authority and for that, the applicant had filed a suit before the trial Court and due to want of prosecution, the said suit was dismissed. But when he came to know about the dismissal of the suit, the applicant has filed an application for restoration of the suit, which is pending for adjudication. Complainant is a subsequent purchaser of the land i.e. in 2021, and prior to that, the applicant has approached the civil court and even the revenue authority has addressed a letter to correct the measurement and clarification is sought for. He therefore, submitted that he has not made any encroachment. However, to show his bonafide, the applicant has filed an undertaking. The applicant has no past antecedent. Besides, the applicant being senior citizen is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail.

[3.0] Learned Additional Public Prosecutor appearing on behalf of the respondent – State and learned counsel for the complainant have opposed grant of anticipatory bail looking to the nature and gravity of the offence. It is submitted that, the applicant has made illegal encroachment over the land. Co-owner who have encroached the land, have already vacated the possession. It is further submitted that, the undertaking filed by the applicant is nothing but a lack of bonafide, he wants to continue encroachment over the land without any lawful authority. Even today suit is not pending and the complainant is not a party to the suit proceedings and outcome of the suit is not binding to the complainant. Hence, application does not deserve any consideration.

[4.0] Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects:-

(1) The complainant has purchased the land in 2021, but prior to that, the applicant was in possession of the land and dispute arose qua measurement of the said land. In this regard, corresp