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2022 Supreme(J&K) 542
JAMMU AND KASHMIR HIGH COURT BENCH AT JAMMU
Sanjay Dhar, J.
Ravinder Gupta – Appellant
Versus
Union Territory of J&k – Respondent
Bail App No. 306 of 2022
Decided On : 17-10-2022
Mr. Aseem Kumar Sawhney, Advocate, for the Appellant; Mr. Pawan Dev Singh, Dy. AG, for the Respondent
The court considered the nature of the offense, severity of punishment, and prima facie view of the petitioner's involvement in determining the grant of bail.
Headnote:
BAIL - Land Dispute - IPC 420, 467, 468, 379, 504, 506 - Cr.P.C 437, 439 - Summary of the acts and sections referenced and discussed by the court
Fact of the Case:
The petitioner sought bail in a case involving a land dispute arising from a complaint of illegal possession of land. The complainant alleged that the petitioner forcibly took possession of his land and presented forged documents. The petitioner contended that the dispute was civil in nature and not a criminal offense.
Finding of the Court:
The court considered the nature of the offense, severity of punishment, and prima facie view of the petitioner's involvement. It found prima facie merit in the petitioner's submission that the dispute was related to land demarcation or at best a case of criminal trespass. The court also noted the petitioner's prolonged custody and the progress of the investigation.
Issues: The issues involved the nature of the dispute, the petitioner's criminal background, and the prima facie view of the petitioner's involvement in the alleged crime.
Ratio Decidendi: The court balanced the factors of the nature of the offense, severity of punishment, and prima facie view of the petitioner's involvement in reaching its decision to grant bail.
Final Decision: The petition was allowed, and the petitioner was admitted to bail with specified conditions.
Key Points: - (!) The court cites sections 437 and 439 Cr.P.C as guiding bail guidelines and emphasizes balancing factors for bail decisions. - (!) The court considers the nature and gravity of the offence, the possibility of prosecution success, and prima facie view of the accused’s involvement. - (!) The case held that the dispute appeared to be about land demarcation or criminal trespass, and that further detention was not necessary for investigation given progression and purposes. - (!) The petitioner had been in custody since 19 May 2022; the court noted investigation progress and need for document verification and demarcation. - (!) The court recognized that a history of multiple FIRs does not alone justify denial of bail, absent prima facie non-bailable offences or tampering risk. - (!) Bail was granted with conditions: personal bond and surety, appearance, cooperation, and non-eviction from UT J&K without permission. - (!) The decision referenced Mahipal v. Rajesh Kumar to illustrate the balanced, non-formulaic approach to bail determinations. - (!) The dispute was determined largely to be a civil/demarcation matter with potential for criminal trespass, influencing bail outcome.
What is the test or criteria for granting bail in a land dispute case under Cr.P.C. sections 437 and 439?
What is the court’s prima facie basis for determining whether the offence is civil in nature or a criminal offense in bail matters?
What factors did the Jammu and Kashmir High Court consider in balancing nature of the offence, severity of punishment, and prima facie view to grant bail?
JUDGMENT
1. The instant application has been moved by the petitioner/accused, whereby he has sought bail in a case arising out of FIR No.53/2022 for offences under Sections 420, 467, 468, 379, 504, 506 IPC registered with Police Station, Gangyal, Jammu.
2. The facts leading to the registration of aforesaid FIR are that on 18th May, 2022, the complainant Kamal Nabh Sharma lodged a written complaint with the Police alleging therein that the petitioner herein has illegally/ forcibly taken possession of his land situated at Greater Kailash, Jammu. It was further submitted that the complainant had purchased a piece of land measuring 15 1/2 marlas from attorney holder - Abdul Majid and the said land is falling in Khasra 549 min. According to the complainant, a sale deed was registered in his name and mutation was also attested in his favour. He had constructed a boundary wall over the plot of land. He remained busy with his service career and when, after his retirement, he visited his plot of land, he found that the same has been illegally encroached upon and occupied by the petitioner, who, according to him, is a notorious land grabber. The complainant goes on to submit that he had approached the Assistant Commissioner Revenue on 12th May, 2015 and his application was marked to Tehsildar, Bahu for necessary action, whereafter the Patwari furnished his report in his favour. He has further submitted in the complaint that when he visited house of the petitioner and asked him to vacate the land, he was abused and threatened by him. He was further told by the petitioner that the land actually belongs to him. He was given by the petitioner a copy of the documents relating to the land, which, according to the complainant, are fake and forged. On the basis of the aforesaid report, the FIR came to be registered and investigation was set into motion.
3. During investigation of the case, the petitioner was arrested on 19th May, 2022. The investigation is stated to be in progress and it has been submitted by the respondent that demarcation of the disputed land is required to be conducted and the verification of the documents produced by the petitioner is also required to be undertaken.
4. The petitioner has contended that he has not committed any offence and that the dispute between the petitioner and the complainant is purely of civil nature relating to demarcation of the land. It has been submitted that the petitioner has not committed any offence even, as per the allegations made in the FIR, and as such, he cannot be denied the concession of bail.
5. The application has been resisted by the respondent by filing objections thereto. In the objections, the respondent has reiterated the allegations made in the FIR. It has been contended that the petitioner is a habitual offender, inasmuch as, 22 FIRs stand registered against him. It has been further contended that the petitioner has been booked under the Public Safety Act and has been kept in preventive detention because of his criminal background. It has also been averred in the objections that the investigation is still in progress and, as such, the concession of bail cannot be given to the petitioner at this stage.
6. It appears that the petitioner had approached the learned Judicial Magistrate 1st Class (City Judge), Jammu as well as learned Principal Sessions Judge, Jammu for grant of bail but he has failed to get the concession of bail from both the Courts below.
7. I have heard learned counsel for the parties and perused the material on record.
8. The guidelines relating to grant of bail have been laid down in Sections 437 and 439 of Cr.P.C. While in Section 437 Cr.P.C, certain restrictions and conditions have been laid down for grant of bail by a Court, the power to grant bail under Section 439 Cr.P.C for the High Court or the Sessions Court is wider. The overriding considerations in granting bail as laid down in Section 437(1) and Section 439(1) of Cr.P.C, are the nature and gravity of the off
