M.L. Shrimal, J.
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 fearad that the accused-petitioners and other persons might dispossess him of the land and destory his crop. He moved on application to the same effect at the Police Station, Kaithoon, for giving police protection to him. The police authorities posted Head Constable, Radha Kishan and Constaables, Brij Raj Singh Shive 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 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 bondo-liers 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 official with lathies and pharises, as a result of which the police party fell down. They snatched away watches from the possession of Radha Kishan, Raj singh and Brij Raj Singh. Thereafter Kalyan directed his associates to tie the police party and put them on the tractor trolley. The member 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 the 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 sear-chiDg the party. Hearing this news they took them to the garden, threw them there along with (heir rifles and live cartridges 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 FIR. a case No. 40 of 1982 under Sections 364, 395, 342, 332, 353 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 the 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 183 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 the 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 stay order has been obtained by Kalyan and others against the execution of the decree, dated February 13, 1980.
3. During the pendency of this appeal, Gopal had filed another suit under Section 183 of the Rajasthan Tenancy Act, 1955, against Badri Lal, which had been decreed on February 23, 1982. The learned Assistant Collector had held that the sale made by the members of the Scheduled Caste in favour of other caste persons, was prohibited by law and as such Gopal was entitled to obtain possession. It is alleged that the accused went up in appeal against that decision before the Board of Revenue, whereby ejectment proceedings were stayed vide order, dated April 5, 1982. The possession of the land is still with them. Gopal, in collusion with the police wanted to take away ripe crop and the police authorities under drinks helped Gopal to cut the crop on which the villagers arrived on the scene of the occurrence and at the stage of their intervention some injuries were sustained by the members of the police party. As the police personnel, including the Deputy Supreintendent of Police and Suprintendent of Police had distributed the crop wheat among themselves, a false case had been instituted against the petitioners and others. The persons, released on bail, had been put to torture by the police authorities and it would not be in the interest of justice to leave the petitioners at the mercy of the invadors.
4. I have given a careful consideration to the arguments advanced by the learned Counsel for the petitioners. Section 42 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'the Act') reads as under:
42. General restrictions on sale, gift & bequest:
The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void, if:
(a) it is not of a survey number except when the area of the survey number so hold, gifted or bequeathed is in excess of the minimum area prescribed for the purpose of Sub-section (1) of Section 53 in which case also the area not transferred shall not be fragment.
Provided that this restriction shall not apply if the area so transferred becomes merged into a contigous survey number.
Provided further that this restriction shall not apply if the sale, gift or bequest is of the entire interest of a tenant in the survey number;
Provided also that the State Government or any authority or officer empowered by the State Government in this behalf, may exempt by general or special order and subject to such conditions as may be specified, the sale, gift or bequest for industrial, residential or commercial purposes, from these restrictions.
(b) such sale, gift or bequest is by a member of a Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe:
5. The provisions of Section 42 have been enacted for prohibiting trans-fer of agricultural land from Scheduled Caste to non-Scheduled Castes on the ground that Scheduled Caste and Schedule Tribes are the weaker sections of the society and if protection is not given, the affluent members of the society would exploit them. Most of these people make their meagre living through agriculture. They live chronically in a tied rope of survival from which they can quickly fall any day if the weather turns against them. The members of the upper class, who own large share of land dominate the lives of these poverty-stricken people as landlords and employers. They influence day to day behaviour and there is every possibility they by their influence may get the land sold in their favour. To avoid this position and to ameliorate conditions of the down trodden, depressed and suppressed segment of the society the socio-economic law has been enacted. Keeping this fact in view learned Assistant Collecter, vide his order, dated February 25, 1982, had held that the purchasers were not entitled to keep possession of the land, as the sale had been as initio void.
6. Section 46 A of the Rajasthan Tenancy Act, 1955, lays down that no person, who is a member of the Scheduled Caste or a Scheduled tribe, shall let or sub-let his holding to any person who is not a member of his caste or tribe. They are also not authorised to exchange their holding of land belonging to the members of the other castes. The scheme of the Act is to give protection to the Scheduled Caste and Scheduled Tribe tenants. Any type of transfer made by them does not vest any legal right in the transferee to hold possession over the transferred land, if the transferee is not a member of the Scheduled Caste or Scheduled Tribe.
7. The contention of the learned Counsel for the petitioners that so Jong 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 21 of the Indian Contract Act. Consideration is rot refundable. Reference in this connection may with advantage be made to Nathmal Bherubux and Ors. v. Kasi Ram and Ors. Ladu v. Harilal Bose AIR 1916 Cal 226. and Firm of Prataphand Ropaji v. Firm of Khotrike Venkata Chetty & Sons etc. AIR 1975 SC 1223. A bare perusal of the 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 officer before whom application by Gopal had been filed, believing its contents and keeping in view the Salcha atrocities and recent mass murders of the members of the Scheduled Caste by the members of the upper class (twice born) in Dabali, was right in posting police officers to avoid breach of the peace. The petitioners have been too uncharitable in in mentioning in the application under Section 438, Cr. P.C. that the police authorities, with malafide intention, helped and took away the standing crop 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 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 Panchnamas, 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 beating to him and members of his family. They would dispossess him from Khasra No. 499 and would drive out Gopal and his 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 Girda-wari and certified copy of 'Dakhalness', 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.
8. The question which needs consideration is as to whether an offence alleged by the prosecution was prima facie committed or not. While considering application for anticipatory bail, the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant, presence being secured during investigation and trial and larger interest of the public on the State are to be kept in mind by the Court. In State v. Cap. Jagjit Singh : 3SCR622 , while cancelling the bail granted by the High court their Lordships of the Supreme Court observed that the High Court committed a basic error in treating the case to have fallen under Section 5 of the Official Secrets Act. It ought to have proceeded on the assumption that the case had fallen under Section 3 of the Official Secrets Act, 1923. The above-noted case was subsequently followed by Hon'ble the Supreme Court in Raj Kumar Sharma as well as Gurucharan Singh's cases. In State of Bihar v. Ramesh Singh 1977 U.J. (S.C.) 788, their Lordships observed, that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence, which the prosecutor preposes to adduce, are not to be maticulously judged, nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether or not the facts are incompatible with the innocence of the accused. The above noted observations apply with all force to cases which are at the stage of investigation.
9. It is essential that a person accused of a crime should have free access to the Court of justice so that he may be duly acquitted, if not found guilty of the offence, with which he is charged or for which an investigation is going on against him. So also it is of almost importance that the police authorities should have a free hand to investigate a case. There are certain facts which are always in the personal knowledge of the accused.
10. On the facts and under the circumstances of the case I do not consider that it is a fit case for the grant of anticipatory bail. The application for anticipatory bail is accordingly rejected, except that of Hanuman accused-petitioner, who is said to be a student of the Second Year Arts and whose examinations are likely to comencce from May 29, 1982. He is ordered to be released on anticipatory bail and a direction under Section 430, Cr.P.C, is issued to the effect that in the event of his arrest accused-petitioner Hanuman shall be released on bail provided he furnishes a personal bond in a sum of Rs. 4,000/- along with one svraty in the like amount to the satisfaction of the S. M.O., Police Station, Kalthoon, subject to the following conditions:
1. that accused-petitioner Hanuman shall make himself available for interrogation by the police as and when required and
2. that the said accused-petitioner shall not, directly or indirectly, make any inducment, threat or promise to any person acquainted with the facts of the case, so as to dissude him from disclosing such facts to the Court or to any police officer.
11. Before parting with the case, I would like to caution that nothing, which may have been said in support of this order, is meant and should be understood to prejudice (he case of either party either at the trial or in any other proceedings, pending or to be instituted, before competent courts.