Punjab-Haryana High Court
Deepak Kumar Bagga & Others vs State Of Punjab & Another on 8 October, 2013
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRM-M No. 32666 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M No. 32666 of 2010 (O&M)
Date of decision: 08.10.2013
Deepak Kumar Bagga & others
...Petitioners
Versus
State of Punjab & another
...Respondents
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. Pawan Kumar Gupta, Advocate for the petitioners.
Mr. Luvinder Sofat, AAG, Punjab
assisted by ASI Daljit Kumar.
Mr. Prateek Pandit, Advocate for respondent No.2.
****
Jitendra Chauhan, J. (Oral)
1. The present petition under section 482 of the Code of Criminal Precedure has been filed for quashing of charge sheet (Annexure P 2); first information report no.272 dated 07.12.2004, registered under sections 420, 467, 471, 120 B of the Indian Penal Code(Annexure P1); impugned order dated 12.06.2010(Annexure P.14) of the Court of the Chief Judicial Magistrate, Hoshiarpur dismissing the application moved by petitioner Deepak Kumar Bagga, under section 245 of the Code of Criminal Procedure for discharging the accused.
FACTUAL BACKGROUND.
i) The brief factual backdrop of the present case is that one Sohan Singh Basra was native of village Basra in Hoshiarpur. He had one son namely Gurdeep Singh Basra and further Gurdeep Singh Basra had one son namely Balraj Singh Basra.
ii) Sohan Singh Basra was settled in the United Kingdom since Sumit Kumar 2014.01.13 11:25 I attest to the accuracy and integrity of this document CRM-M No. 32666 of 2010 -2- long. (The passport issued to him by the British Government is Annexure R-2). His son and grandson namely Gurdeep Singh Basra and Balraj Singh Basra respectively are settled in Canada.
iii)Sohan Singh Basra was having 22 Kanals of land (approx.) situated in village Bajwara Kalan in District Hoshiapur.
Gurdeep Singh Basra and his son Balraj Singh separately owned 66 Kanals of land in their name in village Bajwara Kalan.
iv)Gurdeep Singh and Balraj Singh are resident in Canada for the past more than 30 years.
v) The petitioners in the present case are property dealers. Taking advantage of the absence of Gurdeep Singh and Balraj Singh from India, the petitioners fabricated an alleged agreement to sell dated 12.06.1992. This agreement was shown to have be executed by Sohan Singh in favour of Kailash Rani (who is mother of petitioner No. 1 and wife of petitioner No. 2.
vi) In the alleged agreement dated 12.06.1992, it was shown that Sohan Singh Basra on basis of power of attorney of Gurdeep Singh dated 14.07.1983, and attorney of Balraj Singh dated 5.07.83 which were alleged to have been executed in Toronto (Canada) agreed to sell 88 Kanals 1 marla of land situated in village Bajwara Kalan.
vii) It was further portrayed that Sohan Singh executed the agreement to sell and signed the same in Urdu language.
viii) The petitioners also got executed two sale deeds dated 3.08.1992 and 24.06.1992 in favour of Jugal Kishore (petitioner No. 2) and Kailash Rani wife of Jugal Kishore.
ix) The above said alleged sale deeds were shown to have been executed by Sohan Singh Basra whereas Sohan Singh had never executed the said sale deeds and the land had been given on lease to some villager. These alleged sale deeds are qua the 22 kanals of land in the name of Sohan Singh Basra and not qua the 66 Kanals of land owned by Gurdeep Singh Basra and Balraj Singh Basra.
x) Sohan Singh above said passed away in November 1992 i.e. 2-3 months after the alleged execution of the abovesaid sale deeds.
xi)After the death of Sohan Singh Basra and in the absence of Sumit Kumar 2014.01.13 11:25 I attest to the accuracy and integrity of this document CRM-M No. 32666 of 2010 -3- Gurdeep Singh Basra and Balraj Singh from India the petitioners got filed a civil suit titled "Kailash Rani Vs. Balraj Singh and another" for specific performance of alleged agreement dated 12.06.1992. This suit was with regard to 66 K- 5M of land owned by Gurdeep Singh Basra and Balraj Singh Basra. The petitioners mentioned the address of Gurdeep Singh Basra and Balraj Singh Basra as Ramesh Nagar, Hoshiarpur whereas it was very well in the knowledge of the petitioners that the said persons are Canadian citizens and are living abroad. (the said knowledge on part of the petitioners can also be inferred from the fact that it is they who allege that power of attorneys were executed in Canada by Gurdeep Singh and Balraj Singh though no such power of attorney has ever seen the light of the day)
xii) The petitioners succeeded in obtaining ex parte decree against Gurdeep Singh and Balraj Singh. On basis of the ex parte decree the petitioners tried to take possession of the land belonging to Gurdeep Singh and Balraj Singh i.e. 66K-5M.
xiii) When this fact came into the knowledge of the attorney of Gurdeep Singh he immediately informed Gurdeep Singh Basra and Balraj Singh Basra who came to India and challenged the ex parte decree.
xiv) The ex parte decree was set aside and said order was upheld by this Hon'ble Court in Civil Revision No. 4836 of 2004 decided vide order dated 8.12.2006.
xv) Meanwhile an application was moved by Gurdeep Singh Basra to the police for registering case against the petitioners for forging and fabricating alleged agreement to sell dated 12.06.1992, and trying to cheat Gurdeep Singh Basra and Balraj Singh Basra by usurping their land. A further application was also moved in this regard by attorney of Gurdeep Singh Basra and Balraj Singh Basra namely Kirpal Singh Dhillon. xvi) Pursuant to the above said application the instant FIR 272 dated 7.12.2004 U/s 420, 468, 471, 120-B IPC at P.S. City, Hoshiarpur against the petitioners.
xvii) After the ex parte decree was set aside the suit for specific Sumit Kumar 2014.01.13 11:25 I attest to the accuracy and integrity of this document CRM-M No. 32666 of 2010 -4- performance was tried afresh and the suit of the petitioners was dismissed in toto vide judgment dated 15.04.2009 (Annexure P-
4). Specific findings were recorded that Sohan Singh Basra had no right to sell the land belonging to Gurdeep Singh Basra and Balraj Singh Basra. It was further held that it cannot be believed that Sohan Singh had any power of attorney in his favour by Gurdeep Singh Basra and Balraj Singh Basra because no such attorney was produced and secondly Balraj Singh Basra could not have executed any attorney dated 5.07.1983 as on said date he was only 12 years old as his date of birth was 8.9.1971. xviii) Gurdeep Singh Basra and Balraj Singh Basra had also challenged the sale deed dated 3.08.1992 and 24.06.1992, pertaining to 22 kanals of land owned by Sohan Singh Basra. However, that litigation was decided against them upto the Hon'ble Supreme court. However, said civil litigation was not related to 66 Kanals of land owned by Gurdeep Singh Basra and Balraj Singh Basra. The above said sale deeds dated 3.08.1992 and 24.06.1992 were not alleged to be on the basis of the forged agreement to sell dated 12.06.1992. There was no recital in the above said sale deed regarding agreement to sell dated 12.06.1992.
2. The learned counsel appearing for the petitioner argued that the learned trial Court has legally and factually erred in dismissing the application of the petitioners under sections 245 of the Code vide order dated 12.6.2010. He further argued that the charge was wrongly framed in this case as no prima facie case is made out against the petitioners and thus the impugned FIR; impugned charge sheet and continuation of criminal proceedings against the petitioner is nothing but an abuse of process of law.
It has further been argued that sale deeds dated 24.06.1992 and 3.08.1992 have been upheld by the Civil court and findings of the civil court are binding in nature and therefore, the instant FIR is liable to be quashed.
Further argument raised in the petition is that Sohan Singh was an Sumit Kumar 2014.01.13 11:25 I attest to the accuracy and integrity of this document CRM-M No. 32666 of 2010 -5- Indian citizen and was born at a time when Urdu was quite in use and therefore he signed the documents in Urdu.
One of the arguments raised by the learned counsel for the petitioner is that the trial court should have either discharge them or should have frame a charge U/s 420 IPC and in the absence of charge u/s 420 IPC, the prosecution cannot continue.
3. On the other hand, the learned State counsel submits that after completion of the investigation, the challan was presented in the court of the Judicial Magistrate on 25.04.2008; the charge was framed against the petitioners on 17.9.2008, and the matter is pending for prosecution evidence. He argued that against the framing of the charge, no revision was filed. In order to shorten the trial journey, the petitioner's midway moved an application for acquittal of the accused petitioner which procedure is unknown to law. There is no such provision in the trial of police cases.
4. Mr Parteek Pandit, Advocate,counsel for respondent no.2 opposed the prayer of the petitioner that even, on facts, no case for quashing is made out.
5. This court has heard the arguments at length and carefully gone through the paper book with their able assistance.
6. The argument of the learned counsel for the petitioners is not tenable on the following three material points:
a. Firstly the sale deeds dated 24.06.1992 and 3.08.1992 do not relate to the 66 Kanals of land belonging to Gurdeep Singh Basra and Balraj Singh Basra. The said sale deeds are qua the 22 Kanals of land which was the ownership of Sohan Singh Basra.
b. Secondly the precise allegation against the petitioners is that they forged power of attorney of a minor i.e. Balraj Singh and fabricated agreement to sell dated 12.06.1992 on basis of the same. The sale deeds dated 24.06.1992 and Sumit Kumar 2014.01.13 11:25 I attest to the accuracy and integrity of this document CRM-M No. 32666 of 2010 -6- 3.08.1992 are not shown to be on basis of above said forged agreement dated 12.06.1992. Infact there is no mention of agreement dated 12.06.1992 in sale deeds dated 24.06.1992 and 3.08.1992. Thus, any finding by a civil court on the validity of the above said Sale deeds does not relate to the alleged agreement to sell dated 12.06.1992, and therefore, has no bearing on the instant FIR wherein, there are allegations of forging not only the agreement to sell but also the power of attorney.
c. Thirdly the arguments that civil court findings are binding on the criminal courts is misconceived. Reliance in this regard can be placed upon the following judgments:-
i) In Iqbal Singh Marwaha and another Vs. Meenakshi Marwah and another, 2005 (4) SCC 370 a constitutional bench of the Hon'ble Supreme court has held that in civil and criminal proceedings on the same matter there is no legal principle or statutory provision that findings recorded in one proceedings be treated as final or binding in the other as both cases have to be decided on basis of evidence adduced therein.
ii) In Syed Askari Hadi Ali Augustine Imam and another Vs. State (Delhi Admn.) and another, 2009 (5) SCC 528, a larger bench of the Hon'ble Supreme Court has reiterated the principle laid down in the judgment of Iqbal Singh Marwaha (supra).
iii) In Lakhbir Singh Vs. State of Punjab and others, 2011 (3) RCR (Crl.) 155, this Court has held that findings recorded in one proceedings are not final and binding in another and both cases have to be decided on basis of evidence adduced therein.
7. Another argument is in fact an argument to be raised at the time of defence and being an argument related to the facts which need to be proved and the same cannot be raised in a petition U/s 482 Cr.P.C. Moreover, Sohan Singh had been residing in England for more than 30 years before his death in Sumit Kumar 2014.01.13 11:25 I attest to the accuracy and integrity of this document CRM-M No. 32666 of 2010 -7- November, 1992. His passport, Bank Account forms and other documents bear his signatures in English. The passport and bank account forms of Sohan Singh have been placed on record as Annexure R-2 and R-3 respectively. Thus the instant argument of the petitioners as to whether he siged in Urdu or in English is a disputed question of fact and the same requires evidence to prove or disprove it. This Court will not embark upon an enquiry especially when the case is fixed for prosecution evidence before the trial Court.
8. The argument of the learned counsel for the petitioner that no charge under section 420 of the Indian Penal Code is framed against the accused will not help to the petitioners at all as under section 216 of the Code of Criminal Procedure charge can be added or altered at any time. Moreover, there are observations in the impugned order dated 12.6.2010 that the case of the prosecution may not succeed under sections 467, 468, and 471 IPC, but it may succeed under section 420 of the Indian Penal Code.
9. Another point which does not allow this petition to succeed is that the petitioners had earlier approached this Court for quashing of the FIR by filing CRM-M-53716 of 2005. The same was dismissed by this Hon'ble court vide order dated 24.05.2006 (R-4). No appeal was filed against the same. Now after conclusion of the investigation there is sufficient evidence against the petitioners to warrant a criminal trial and therefore, the present petition is liable to be dismissed especially when charges have been framed and evidence is underway.
10. The petitioners have raised disputed question of facts which cannot be entertained while exercising jurisdiction U/s 482 Cr.P.C. The evidence against the petitioners prima facie supports prosecution for the offences of which the petitioners have been charged and therefore, the instant petition is liable to be dismissed.
Sumit Kumar 2014.01.13 11:25 I attest to the accuracy and integrity of this document CRM-M No. 32666 of 2010 -8-
11. The petitioners never filed a revision against the order framing charge dated 17.9.2008, and rather moved an application for discharge after the charge had been framed. Furthermore no revision was filed even against the order dated 12.6.2010, whereby, their application for discharge was dismissed. The petitioners have not availed the remedy available to them as per law to assail the order framing the charge. The instant quashing petition is liable to be dismissed on this ground also.
12. In summation that some criminal cases have two facets viz; one alleged by the prosecution and the second contended by the accused. In the present case the prosecution case against the petitioners is that they are property dealers who under a criminal conspiracy and taking after advantage of absence of NRIs from India tried to usurp their property by forging a power of attorney of a minor Balraj Singh and also that of Gurdeep Singh Basra, and thereafter fabricated an agreement to sell dated 12.6.92, and on basis of such a tainted agreement tried to cheat the actual owners by dishonestly trying to take their land. In support of its case the prosecution has collected some oral and documentary evidence.
13. The evidence collected against the petitioners supports a prima facie case against them. Accordingly, charge was framed against the petitioners. The case is fixed for prosecution evidence. It is within the domain of trial Court to sift through the evidence and reach a conclusion regarding guilt or innocence of the accused. This Court would assume unto itself the duties of a trial Court. Moreover while exercising jurisdiction under Section 482 Cr.P.C. no finding of guilt or innocence can be recorded and only prima facie case is to be seen.
14. The arguments raised by the learned counsel for the petitioners are pleas of defence to be proved during trial. Their contention that alleged agreement is genuine requires documentary and circumstantial evidence, to be Sumit Kumar 2014.01.13 11:25 I attest to the accuracy and integrity of this document CRM-M No. 32666 of 2010 -9- proved in Court, which exercise can only be undertaken before the trial Court.
15. The contention of the learned counsel for the petitioners that the trial court has not framed charge U/s 420 IPC against them is correct, but in the order dated 12.06.2010 (Annexure P-14) whereby, the application of petitioners for discharge has been dismissed the Trial Court has observed that charge under sections 467, 468, 471 IPC may not succeed but prosecution case U/s 420 may succeed. The learned counsel for the petitioners is trying to show that there is no charge U/s 420 IPC against the petitioners and therefore, the observation of Ld. Trial Court is wrong.
This argument of the petitioners is misconceived in view of the observations made in the order dated 12.6.2010.
16. Lastly, it is held that application under section 245 of the Code of Criminal Procedure dismissed vide impugned order dated 12.06.2010 is not maintainable in police cases. Sections 244 to 247 of the Code are applicable to the cases instituted otherwise than on police report as provided in the Code itself. The learned trial Court has rightly dismissed the application which was filed midway trial. At the time of framing charge no such pleas were taken. There is no appeal or revision against the framing of the charge which has attained finality. The disputed question of facts cannot be decided in this petition. The trial magistrate has no inherent power to discharge the accused under section 245 of the Code of Criminal Procedure by cutting short the trial procedure in police cases. The application filed by the petitioners for discharging them in view of civil court judgments was an futile effort to delay the proceedings, which was rightly dismissed.
17. Keeping in view the circumstances of the case, it is not a fit case, where this Court should exercise its inherent power under section 482 of the Code of Criminal Procedure. This petition is dismissed being devoid of any Sumit Kumar 2014.01.13 11:25 I attest to the accuracy and integrity of this document CRM-M No. 32666 of 2010 -10- merit.
18. However, nothing stated above shall have any bearing on the merits of the case. The petitioners are at liberty to take all the pleas before the trial court.
08.10.2013 (JITENDRA CHAUHAN)
sumit.k JUDGE
Note:- Whether referred to reporter or not - Yes / No Sumit Kumar 2014.01.13 11:25 I attest to the accuracy and integrity of this document