KALYAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE prosecution case in short is that Gopal Nayak is a Khatedar tenant of Khasra No. 449, measuring 15 Bighas 13 Biswas of land, situated in village Jhalipura. In pursuance to a decree, dated February 25, 1982, passed in Revenue Suit No. 126 of 1981, physical possession of the land in dispute had been delivered to him on March 1, 1982 According to the police record Khasra Girdawari for the relevant year stands recorded in his name. He being the member of the Scheduled Caste feared that the accused-petitioners and other persons might dispossess him of the land and destroy his crops. He moved on application to the same effect at the Police Station, Kait-hoon. for giving Police protection to him. THE police authorities posted Head Constable, Radha Kishan and Constables, Brij Raj Singh, Shiv Raj Singh and Hanuman Singh, to maintain peace and order in the area near about the field of Gopal. On April 4, 1982, the petitioners along with other persons, armed with Gandasies and lathies, formed an unlawful assembly. THE common object of the assembly was to cause beating, dispossess Gopal of his land and take away his crop. THEy boarded in a tractor trolley and reached the scene of the occurrence. THEy surrounded the police party. THEy snatched away rifles and bandoliers with live cartridges from the constables. Two of the accused namely, Suresh and Bal Chand instructed their associates to finish the police party. THEy gave beating to the police officials with lathies and pharsies, as a result of which the police party fell down. THEy snatched away watches from the possession of Radha Kishan, Shiv Raj Singh and Brij Raj Singh. THEreafter Kalyan directed his associates to tie the police party and put them on the tractor trolley. THE members of the unlawful assembly conspired to take them away to Uttegara so that they might crush them under the tractor and throw them into the canal. THE hands and legs of the police people were tied down, so that they might not jump away from the trolley. THEir mouths were also tied with loongies so that they might not be able to make noise. A finger ring was also taken away by Suraj Singh. Pass Book No. 766839 and about Rs. 150/- cash were taken away by the accused. At that stage somebody informed the accused that a police tractor was searching the party. Hearing this news they took them to the guave garden, throw them there along with their rifles and live cartridge. While leaving the place Suraj Singh informed the victims of the assault that they should take their goods from the field after some time, otherwise they would be done to death. On the basis of this F. I. R. a case No. 40 of 1982, under Sections 364, 395, 342, 352, 333, I. P. C. , was registered against 21 accused, including the petitioners. Some of the accused were arrested and after interrogation and necessary inquiry some of them were released on bail under Section 439, Cr. P. C. THE accused-petitioners made themselves scarced. Subsequently they moved a bail application under Section 438, Cr. P. C. , before the learned Sessions Judge, Kota, who vide his order, dated April 20, 1982, rejected the same.

(2.) THE petitioners have approached this Court under Section 438, Cr. P. C. THEir case is that the disputed land had been sold by Shri Gopal to Badri Lal by a registered sale-deed, dated May 8, 1972, for an amount of Rs. 8000/ -. Later on, Gopal had filed a suit under Section !83 of the Rajasthan Tenancy Act, 1955, which had been decided on February 13, 1980. As Badri Lal was a minor, the suit had been filed against his guardian, Kalyan. THE learned Assistant Collector had held that the sale was void and ordered that possession of the land be delivered to Gopal on his depositing an amount of Rs. 8000/ -. Against that decision an appeal had been filed by Kalyan before the Revenue Appellate Authority, but the same stood dismissed. A second appeal, filed before the Board of Revenue, is pending decision and a stay order has been obtained by Kalyan and others against the execution of the decree, dated February 13, 1980.

(3.) THE contention of the learned counsel for the petitioners that so long Rs. 8000/- were not paid back to Badri Lal it was not within the competence of the Assistant Collector to deliver physical possession of the land to Badri Lal and the order of the Assistant Collector being patently illegal, does not seem to be correct. A contract entered into between the parties which is forbidden by law, is void under Section 23 of the Indian Contract Act Consideration is not refundable. Reference in this connection may with advantage be made to M/s. Nathmal Bherubux vs. Kashi Ram (1), Ladu vs. Hiralal Bose (2) and Firm of Pratapchand Hapaji vs. Firm of Kotrike Venkata Setty (3) A bare perusla of police record shows that physical possession of the land in dispute had been delivered by the Revenue authorities to Gopal, on March 1, 1982 and as such the concerned police officers before whom application by Gopal had been filed, believing its contents and keeping in view the Balcha strocities and recent mass murders of the members of the Scheduled Caste by the members of the upper class (twice born) in Debali, was right in posting police officers to avoid breach of the peace. THE petitioners have been too uncharitable in mentioning in the application under Section 438, Cr. P. C. , that the police authorities, with mala fide intention, helped and took away the standing crop for themselves and distributed the same amongst S. H. O. , Deputy Superintendent of Police and Superintendent of Police of the area. If such an act had been done, they could proceed under the provisions of the relevant law against the guilty persons. In a bail application filed by the accused under Section 438, Cr. P. C. , the Court cannot presume that a false case has been foisted by the police authorities. THE injury reports of Radha Kishan, Shiv Nath Singh, Brij Raj Singh and Hanuman Singh reveal that in all they sustained as many as 24 injuries. In support of the F. I. R. the order of the learned Magistrate, dated February 25,1982 and the Panchnama, evidencing the delivery of physical possession of the land in dispute, have been filed by Gopal before the police and an affidavit, dated May 6, 1982, has been submitted by Gopal in this Court. It has been mentioned in the affidavit that prior to the date of the occurrence Chhotulal and Mohanlal, were subjected to the atrocities of the influential section of the society of the village, including the accused. THEy have been made to leave their property in the village and are living in Chandida village and if anticipatory bail is granted to the accused-petitioners, they would give severe beatings to him and members of his family. THEy would dispossess him from Khasra No. 499 and would drive out Gopal and bis family members. Accused Kalyan has filed an affidavit in this Court, but this fact has not been controverted either by Kalyan or by any of the accused-petitioners, by filing a counter affidavit. THE F. I. R. in this case was lodged by Radha Kishan on February 16, 1982, at 12 15 p. m. i. e. , within 2 hours and 15 minutes of the occurrence. THE injured were clinically examined by the Doctor the next day of the occurrence at 9. 00 a. m. From the perusal of the record and the statements of the witnesses, recorded by the police, it can prima facie be said that the occurrence did take place. Vehement argument advanced on behalf of the petitioners to the effect that the order, dated February 25, 1982, passed by the learned Magistrate, was illegal and that contempt proceedings have been launched against the concerned persons before the Board of Revenue, does not cut much ice. From Khasra Girdawari and certified copy of 'dekhalnama', dated March 1. 1982, filed by Gopal before the police, the police authorities could have reasonably reached the conclusion that Gopal was in fact in possession of the property in dispute on the date of the occurrence and this Court is not competent to decide in a bail application the effect of the order of stay, passed by the Board of Revenue, on July 11, 1980 and March 5, 1982, specially when the copies of those documents are not before this Court or on the police record, shown by the learned Public Prosecutor.