Delhi District Court
State Through Cbi vs Kulwant Kaur Sidhu & Others on 28 August, 2015
State through CBI v/s Kulwant Kaur Sidhu & others
IN THE COURT OF SH. PAWAN KUMAR JAIN,
SPECIAL JUDGE, CBI-01, NORTH-WEST DISTRICT,
ROHINI COURTS COMPLEX, DELHI
IN THE MATTER OF:
CBI No. 13/2011
ID No. : 02404R0999362003
FIR No. RC 2A/2001/CBI/ACU-IX/New Delhi
U/Sec: 120B IPC & 13(2)R/W13(1)(d) of PC
Act, 1988
STATE
THROUGH
CENTRAL BUREAU OF INVESTIGATION,
NEW DELHI
VERUS
KULWANT KAUR SIDHU & OTHERS
Date of order reserved on : 03.08.2015
Date of Order : 28.08.2015
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State through CBI v/s Kulwant Kaur Sidhu & others
Appearance: Ms. Shashi Vishwakarma, Public Prosecutor
for CBI
Complainant is in person
Sh. Vijay Bishnoi, Advocate, counsel for
accused no.1
Sh. Islam Khan, Advocate, counsel for
accused no. 2 to 5
ORDER ON THE PROTEST PETITION :-
1. Protest petition dated January 07, 2004 is the subject
matter of this order.
2. Necessary circumstances in brief leading to filing the
present protest petition are that CBI had filed a chargesheet against five
persons, namely, Kulwant Kaur Sidhu (A1), Rajender Prasad Tiwari (A2),
Bhim Sen (A3), Matloob Ahmed (A4) and Abrar Hussain (A5) for the
offence punishable under Section 120B IPC read with Section 447, 506
IPC and Section 13 (2) read with Section 13 (1) (d) of Prevention of
Corruption Act, 1988 and substantive offence under Section 13 (2) read
with Section 13 (1) (d) of Prevention of Corruption Act, 1988 against all
public servants i.e. A2 to A5. However, at the time of filing the
chargesheet, CBI had mentioned the name of three persons, namely
Manoj Kumar, Ravinder Godbole and Ved Prakash Arora in column No.
2 on the pretext that during investigation no sufficient evidence surfaced
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qua them.
3. Feeling aggrieved by the conclusion arrived at by the CBI,
complainant filed the present protest petition with a prayer not only to
summon the remaining accused persons, namely Manoj Kumar,
Ravinder Godbole and Ved Prakash Arora but also made a prayer to
summon numerous other persons, namely Hoshiar Singh, Satinder
Dhamanda, Shankar Kamath, Sohan Lal, L.D. Bhatia, Ms. Archna
Bhatia, Jai Raj Singh and Balram Jakhar i.e. former Lok Sabha Speaker
and Cabinet Minister. Besides that complainant also prayed to take
cognizance against all the accused persons for some other additional
Sections i.e. for the offences punishable under Section 193, 218, 219,
420, 467, 468 and 471 IPC.
4. Initially, the protest petition was disposed of vide order
dated July 22, 2004 holding that the additional accused could be
summoned at appropriate stage under Section 319 Cr.P.C, if sufficient
evidence is found by the Court. However, the said order was challenged
by the complainant by filing a Criminal Revision Petition No. 570 of
2004. Vide order dated May 17, 2006, High Court of Delhi pleased to
allow the revision petition and remanded back the matter for fresh
consideration of the protest petition. It was also made clear that
petitioner shall not be permitted to travel beyond the chargesheet and
the documents accompanying the chargesheet or available on record.
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5. Thereafter, the said protest petition was disposed of vide
order dated September 29, 2008 by directing the CBI to conduct further
investigation and submit the report within a period of six months.
However, complainant again challenged the said order before the
Hon'ble High Court of Delhi by filing a Criminal Miscellaneous (Main) No.
3472 of 2008. The High Court of Delhi vide its order dated July 13, 2009
pleased to allow the petition by setting aside the impugned order dated
September 29, 2008 and passed the following directions:
"Learned Special Judge shall hold a
de-novo exercise uninfluenced by the impugned
order. The petitioner's protest petition which is
already on record, shall be heard once again giving
complete opportunity to the petitioner to put forth
her case. In passing the impugned order as
directed in the first round by this Court, reasons
shall be articulated by the learned Special Judge. It
is also made clear, as was indicated by earlier
order of this Court dated May 17, 2006, that the
petitioner while making her submission in respect of
protest petition shall not travel beyond the material
filed along with the chargesheet."
6. Necessary relevant facts in brief for the purpose of our
discussion are that Ms. Rahiman Bai Guddi (hereinafter referred to as
original complainant) i.e mother of present complainant, was in
possession of 2.01 acre of land (0.74 acre in Khasra No. 25/4 and 1.27
acre in Khasra No. 46/11) at Village Haripal Distt. Dehradun. The said
property was a compact piece of land and it was mutated in the name of
Ms. Rahiman Bai Guddi on July 14, 1969, though she had purchased
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the land on October 31, 1964 vide sale deed No. 5634.
(i) Vide notification dated October 15, 1991, Government of
Uttar Pradesh directed to carry out a survey (consolidation process) of
134 villages including the above said village and Mr. Ravinder Godbole
was made in-charge for the said survey. It was alleged that immediately
prior to the new survey, there was no dispute about the said piece of
land, which was existed in the name of original complainant in the shape
of compact piece of land measuring 2.01 acre.
(ii) It was alleged that the said survey was finalised by Mr.
Rajender Prasad Tiwari (A2), Bhim Sen (A3), Matloob Ahmed (A4) and
Abrar Hussain (A5) under the supervision of Mr. Ravinder Godbole.
(iii) It was further alleged that in the said survey, A2 to A5
reduced the area of land of complainant by 1200 square meters in
Khasra No. 25/3 illegally and the rest of the land, which was in the shape
of one compact piece, was also fragmented into 8 pieces in different 8
Khasra numbers. It was alleged that it was so done at the behest of Ms.
Kulwant Kaur Sidhu and she had misappropriated the said piece of land
to build up a passage from her villa to Haridwar-Rishikesh Highway.
(iv) It was alleged that Ms. Kulwant Kaur Sidhu had hatched
a criminal conspiracy with several persons with an object to grab the
property of original complainant and to convert the same in a common
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passage leading from her villa to Haridwar-Rishikesh Highway. It was
further alleged that several revenue officials/officers had joined the
conspiracy with Ms. Kulwant Kaur Sidhu. According to the protest
petition, CBI had not investigated the matter thoroughly and not
impleaded all the persons deliberately, who were part of conspiracy and
played an active role at different stages to help Kulwant Kaur Sidhu to
grab her property. It was further alleged that CBI had diluted the gravity
of offence by filing the chargesheet in lesser offences and deliberately
not invoked the offence wherein the punishment was sever. The relevant
facts will be discussed while dealing with the contentions raised by the
parties.
7. Vide order dated June 29, 2015, High Court of Delhi
pleased to direct this Court to decide the protest petition on or before
August 31, 2015. Accordingly, since July 10, 2015, matter was taken up
on priority basis. Complainant concluded her arguments in 9 hearings,
which commenced from July 10, 2015 and concluded her arguments on
July 30, 2015. Thereafter, the opposite side advanced the arguments.
8. I have heard both the parties at length, perused the record
carefully and gave my thoughtful consideration to their contentions.
Status of original complainant Mrs. Rahiman Bai Guddi prior
to survey and thereafter:-
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9. As per chargesheet filed by the CBI, Mrs. Rahiman Bai
Guddi had purchased a piece of land measuring 0.74 acre in Khasra No.
25/4 and 1.27 acre in Khasra No. 46/11 (total 2.01 acre) at village
Haripur Kalan, District Dehradun vide sale deed No. 5634 dated October
31, 1964 from Sh. Sansar Chand Gohal and the said land was mutated
in favour of original complainant on June 15, 1969.
(i) As per the investigation conducted by CBI, the said piece
of land was in the shape of one compact piece of land and its shape was
intact immediate prior to new survey undertaken by the accused revenue
officials Rishikesh, Dehradun. During investigation, it was also transpired
that immediately prior to the new survey, there was no dispute about the
said piece of land.
(ii) Thus, it is admitted case of the CBI that Mrs. Rahiman
Bai Guddi was the undisputed owner of the above said piece of
land since 1964 and the said piece of land was existed in the shape
of one compact piece of land.
(iii) It is also admitted case of the CBI that survey was
conducted in compliance of the Notification dated October 15, 1991
issued by U.P Government.
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(iv) During investigation, it was transpired that during the
survey, accused survey officials reduced the area of the land of original
complainant by 1200 sq. mtrs. illegally in Khasra No. 25/3 and rest of the
land, which was in the shape of one compact piece, was fragmented into
eight pieces at different places and new Khasra numbers were allotted to
the same. The detail of new Khasra numbers viz-a-viz the area is as
under:-
Sl. No. Khasra No. Area ( in sq. m)
(i) 182 775
(ii) 183 1250
(iii) 184Ka 2150
(iv) 197Kha 455
(v) 198 400
(vi) 200 100
(vii) 201 800
(viii) 202Ka 1010
Total 6940
(v) During investigation, it was further revealed that the
location of all Khasra except Khasra No. 182, 183, 184 Ka was shifted at
different places.
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(vi) Khasra No. 180 measuring 600 sq. mtrs. was shown in
the name of Sh. Ved Prakash Arora existing on the land of complainant.
(vii) Similarly, Khasra No.181 Kha was given to Ms. Kulwant
Kaur Sidhu on the land of complainant connected to Haridwar-Rishikesh
Highway.
(viii) The said piece of land of Khasra No. 181 Ka measuring
370 sq. mtrs. was also shown in the name of Mr. Ved Prakash Arora and
Khasra no. 184 Kha was allotted to Ms. Kulwant Kaur Sidhu, which was
existing on the land of complainant.
(ix) Thus, it is admitted case of the CBI that during the
survey, not only the area of land of Ms. Rahiman Bai Guddi was reduced
but a portion of land was also given to Mr. Ved Prakash Arora and Ms.
Kulwant Kaur Sidhu. Further, the remaining land of complainant was
fragmented into eight pieces at different places.
(x) During investigation, it was also transpired that land of
Khasra No. 181 Ka and 183 Kha was shown in the name of Ms. Kulwant
Kaur Sidhu, which was wrong because Khasra No. 181 is adjacent to
Haridwar-Rishikesh Marg and Khasra No. 181 and 184 are adjoining to
each other whereas the land sold to Ms. Kulwant Kaur Sidhu was at a
distance of about 500 mtrs. from Haridwar- Rishikesh Marg. It was also
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revealed that Mrs. Kulwant Kaur Sidhu was never in the possession of
the said land.
(xi) During investigation, it was also transpired that the land
measuring 600 sq. mtrs. in Khasra No. 180, land measuring 370 sq.
mtrs. in Khasra No. 181 Ka (total 970 sq. mtrs.) was shown in the name
of Mr. Ved Prakash Arora and Khasra No. 181Kha, land measuring 1780
sq. mtrs, Khasra No. 184 Kha land measuring 900 sq. mtrs. (total 2680
sq. mtrs.) was shown in the name of Mrs. Kulwant Kaur Sidhu. As per
chargesheet, the said land should have been allotted to Ms. Rahiman
Bai Guddi.
(xii) In other words, it is admitted case of the CBI that the
portion of land of complainant was given to Mr. Ved Prakash Arora and
Ms. Kulwant Kaur Sidhu.
Status of the land of Mrs. Kulwant Kaur Sidhu:-
10. As per the chargesheet, Ms. Kulwant Kaur Sidhu had
purchased land measuring 610 sq. mtrs. in her name through genuine
sale deed No. 3265 dated August 25, 1993 from Mr. Alam Singh Rawat,
which was mutated in her name on March 12, 1994. Besides that she
had also purchased the land measuring 200 sq. mtrs. vide sale deed No.
486 dated February 13, 1996 from Mr. Rajesh Kumar but it was not
muted in her name till date. Mrs. Kulwant Kaur Sidhu had also
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purchased land measuring 2240 sq. mtrs. vide sale deed No. 3917
dated August 7, 1992 from Mr. Vijay Kumar but the said land had also
not been mutated in her name.
(i) During investigation, it was also transpired that Ms.
Kulwant Kaur Sidhu also acquired land through deceitful means and
detail of such land is described as under:-
(a) Mrs. Kulwant Kaur Sidhu claimed that she had
purchased the land measuring 224.82 sq. mtrs. in Khasra No. 46/44 and
25/4 vide sale deed No. 1263 dated August 4, 1999 from Mr. Brij Mohan
Rana whereas no such land was in existence in revenue record on the
said date. The said sale deed was witnessed by Mr. Hoshiar Singh
(b) It was further transpired that Mrs. Kulwant Kaur had
purchased land measuring 200 sq. mtrs. in Khasra No. 25/4 and 46/44
vide sale deed No. 1162 dated July 20, 1999 from Mr. Shankar Kamath,
who sold the same on the basis of Power of attorney executed by Mr.
Som Dutt in favour of Mr. Shankar Kamath whereas no land was in
existence in the name of Mr. Som Dutt on the said date. The said Power
of Attorney was also witnessed by Mr. Hoshiar Singh besides Mr. Sohan
Lal Sharma.
(c) It was also transpired that Mrs. Kulwant Kaur Sidhu had
applied for mutation of the land measuring 1780 sq. mtrs., which was
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allegedly purchased vide sale deed No. 3583 dated July 6, 1995 from
Mr. Brij Mohan Rana on the ground that same could not get be mutated
earlier in her name. It was further revealed that accused Rajendra
Prasad Tiwari and Mr. Bhim Sen without going into the merits of the
case, mutated the land in the name of Mrs. Kulwant Kaur Sidhu. During
investigation, it was also revealed that vide sale deed No. 3583 dated
July 6, 1995 land measuring area 1620 sq. mtrs was mutated in the
name of Mrs. Kulwant Kaur Sidhu and thereafter, no other piece of land
was left in the name of Mr. Brij Mohan Rana, thus, there was no
occasion for Mr. Brij Mohan Rana to sell the land measuring 1780 sq.
mtrs. in favour of Mrs. Kulwant Kaur Sidhu. As per the chargesheet, in
order to cause wrongful gain to Mrs. Kulwant Kaur Sidhu with ulterior
motive and mala-fide intention, Mr. Matloob Ahmad, Mr. Rajendra
Prasad Tiwari and Mr. Bhim Sen had misused their official position and
mutated the land in the name of Mrs. Kulwant Kaur Sidhu in order to
justify this excess area in her possession, accordingly, they prepared
false sale deed got duly executed between Mr. Dhan Bahadur and Ms.
Kulwant Kaur Sidhu with the help of village Pradhan Mr. Satinder
Dhamanda.
(d) During investigation, it was also transpired that the sale
deed was executed by Mr. Dhan Bahadur being the legal heir of original
owner Mrs. Sheetal Devi whereas during investigaiton it was revealed
that Mr. Dhan Bahadur was not connected with Mrs. Sheetal Devi in any
manner and her real successor was Mr. Padam Bahadur. During
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investigation Mr. Dhan Bahadur also informed the CBI that he did not
possess any land in the said village and further informed that he was
taken to the house of Ms. Kulwant Kaur Sidhu where he was asked to
sign the sale deed and in lieu of that, he was paid ` 20,000/- by Mr.
Satinder Dhamanda.
(ii) Thus, it is admitted case of the CBI that Ms. Kulwant Kaur
Sidhu had procured various lands by deceitful means and even she did
not hesitate to show her ownership by preparing fake sale deed.
11. In the light of above admitted status of both the parties of
the land in question, contentions of both the parties will be dealt with by
this Court.
Contentions relating to Mr. Ravinder Kumar Godbole:-
12. Complainant vehemently contended that accused
Rajender Prasad Tiwari (Survey Lekhpal), Bhim Sen (Survey Kanungo),
Matloob Ahmed (Survey Naib Tehsildar) and Abrar Hussain (Peshi
Kanungo) have been charge-sheeted on the ground that they had
signed the revised Khatoni. Accused Mr. Rajender Prasad certified that
he had prepared the same; accused Mr. Matoob Ahmad certified that he
had inspected 25% of the survey conducted whereas accused Mr. Abrar
Hussain certified that he had inspected the 5% record. Similarly,
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accused Bhim Sen also certified the said Khatauni. It was argued that
though accused Ravinder Godbole, the then Record officer also certified
that he had inspected 5% of the survey's entries but he had been
exonerated by the CBI on the ground that he did not participate in the
survey. It was contended that it is factually incorrect as accused
Ravinder Godbole in his statement candidly admitted that he had also
inspected the spot and survey was done under his supervision. It was
astutely contended that when the signature of Mr. Abrar Hussain, Mr.
Rajinder Tiwari, Mr. Bhim Sen and Mr. Matloob Ahmad on the revised
khatauni was sufficient to implead them as an accused, how CBI could
exonerate Mr. Ravinder Godbole despite the fact that he also signed the
said Khatoni. It was further contended that CBI had placed reliance on
the statement of Mr. Ravinder Godbole to exonerate him which is not a
healthy practice because he was also an accused and was equally
responsible for the illegality committed during the survey wherein one
piece of land of the original complainant had been fragmented at eight
different places.
(i) Counsel appearing for the CBI refuted the said
contentions by arguing that he had not visited the spot and he believed
on the entries made by Lekhpal or Peshi Kanungo. It was further argued
that mere fact Mr. Ravinder Godbole had put his signature on the
revised khatoni does not mean that he had any mala-fide intention as he
had done so being the SDM of the area. It was further contended that
during investigation, it was not surfaced that Ravinder Godbole was
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informed about the factual position, accordingly, it was argued that
criminal liability can not be fixed on the shoulders of Mr. Ravinder
Godbole mere on the ground that he had put his signature on the
Khatoni.
(ii) As per chargesheet, Mr. Ravinder Godbole was made in-
charge to carry out the survey of all 134 villages. Thus, being the overall
in-charge of 134 villages, it was not possible for him to conduct the
inspection of each and every village particularly each and every Khasra
located in the said villages. He had to place reliance on the entries made
by his staff after conducting inspection at the spot.
(iii) During investigation, Mr. Ravinder Godbole was also
examined and he informed the CBI that measurement and survey of
land was done by Naib Tehsildar/Kanungo/Lekhpal on behalf of ARO.
The ARO checked randomly the measurement done by the survey Naib
Tehsildar/Kanungo and he also go through the record that was prepared
by them to ensure whether survey was being done smoothly and
properly.
(iv) No doubt, he also informed the CBI that before
preparation of the map, he had visited several times at the spot and
enquired from villagers about their grievances, if any. He further
informed the CBI that on the spot, record had been prepared by Mr.
Matloob Ahmad (Survey Naib Tehsildar), Mr. Rajinder Prasad Tiwari
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(Survey Lekhpal) and Mr. Bhim Sen (Survey Kanungo) in their diary. On
the basis of these record, new survey was prepared. He further
intimated the CBI while he was making random checking on the fields,
he used to ask Chain-man, Kanungo, Lekhpal and Naib Tehsildar to
measure the land in his presence. No doubt, this statement shows that
Mr. Ravinder Godbole was actively involved in the survey but it is also
revealed that he inspected the spot on random basis otherwise he
placed reliance on the entries made by his staff.
(v) No doubt, the revised khatoni also bears the signature of
Mr. Ravinder Godbole and he also certified that he had inspected 5% of
the entries. But there is nothing on record, which may show that the
said 5% entries also included the entries of land pertaining to original
complainant. During investigation, nothing is surfaced which may show
that someone informed him about the fact that land of original
complainant i.e. Mrs. Rehiman Bai Guddi had been fragmented at eight
different places. Indisputably, Mr. Ravinder Godbole was overall in-
charge of all the villages, thus, it was not possible for him to check each
and every entry relating to each and every Khasra. In these
circumstances, it is seldom to draw an inference that mere fact he was
an overall in-charge of the survey in question, he is also criminally liable
for the illegality committed by his subordinates while conducting survey.
(vi). During the course of arguments, complainant had
placed reliance on the statement of Mr. Nishar Ahmad and Mr.
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Naziruddin. I have perused their statement. From their statement, it
becomes clear that during survey, land of the complainant could not be
fragmented at different places and it is also established that revised
khatoni also bears the signature of Ravinder Godbole. But there is
nothing in their statement which may show that Mr. Ravinder Godbole
had inspected the spot of the land of original complainant or that the
factum of fragmenting the land of original complainant in eight different
places was brought in the notice of Mr. Ravinder Godbole. Thus, I am of
the considered opinion that their statement is ipso-facto not sufficient to
summon Mr. Ravinder Godbole.
(vii). In view of the above discussion, I am of the considered
opinion that material available on record is insufficient to summon Mr.
Ravinder Godbole for the alleged conspiracy.
Contentions relating to Mr. Manoj:-
13. Complainant vehemently contended that Mr. Manoj
Kumar was SDM at the relevant time. It was further submitted that when
complainant came to know about the illegality/mistakes qua her Khasra
numbers that was committed during survey, she made a representation
for rectification of the mistake before the SDM, who was competent to
rectify such mistakes. It was alleged that earlier also Mr. Manoj Kumar
used to do such type of rectification and this fact had been proved by
PW Shish Ram Mamgai and Nishar Ahmed and Nagendera Dutt Raturi
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in their statements. It was vigorously contended that since Mr. Manoj
Kumar was in conspiracy with Mrs. Kulwant Kaur Sidhu, he rejected the
application of complainant vide impugned order dated August 13, 1999
on the pretext that he had no jurisdiction to rectify such errors/mistakes
and directed the party to approach the competent authority without
clearing who was competent authority to rectify such errors/mistakes. It
was further contended that since Manoj Kumar was in conspiracy with
the accused persons, he rejected the lawful objection of the
complainant, thus, he is also liable for the offence punishable under
Section 219 IPC besides the other offences with the aid of Section 120 B
IPC.
(i). Per contra, learned Public Prosecutor for CBI refuted the
said contentions by arguing sagaciously that Mr. Manoj Kumar had
joined the office in June 1998 whereas the alleged conspiracy had been
hatched somewhere in 1997, thus it cannot be said that he was a part of
the conspiracy. It was further contended that order dated August 13,
1999 is a judicial order and during investigation no other evidence
surfaced against him to show that he had passed the said order in
conspiracy with other accused persons, thus it was argued that Mr.
Manoj Kumar can not be held criminal liable for passing a judicial order.
(ii). It is undisputed fact that Mr. Manoj Kumar had passed
the order dated August 13, 1999 wherein he dismissed the petition of
complainant on the ground that he had no jurisdiction to entertain such
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petition. From the said order, it is also revealed that the petition was
contested by the respondent i.e. Ms. Kulwant Kaur Sidhu who took the
objection that SDM had no jurisdiction to entertain such petition.
(iii) No doubt, PW Shish Ram Mamgai, Nishar Ahmed and Nagendera Dutt Raturi in their statements testified before the CBI that such petitions were earlier entertained by Manoj Kumar and he had also rectified the errors/mistakes on the basis of such petitions. On the basis of their statements, it was contended by the complainant that Mr. Manoj Kumar had dismissed their petition as he was in conspiracy with the co- accused Ms. Kulwant Kaur Sidhu.
(iv) From the statement of above said witnesses, it becomes clear that on the application of complainant, Shish Ram Mamgai and Nagendera Dutt Raturi had conducted the inspection on May 12, 1998 and thereafter, they submitted the report before the SDM Mr. Manoj Kumar on June 25, 1998. On receipt of the report, Mr. Manoj Kumar again sent the petition for re-inspection with direction to submit the report within week's time. Accordingly, they again inspected the spot and submitted their report to the SDM on December 21, 1998. From their statement, it becomes clear that SDM Manoj Kumar had not dismissed the application straight way. Rather, he had taken action on the petition of the complainant by sending the same to PW Shish Ram Mamgai and Nagendera Dutt Raturi to inspect the spot and submit the report.
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(v) On perusal of the order dated August 13, 1999, it becomes clear that the petition was opposed by the respondent as respondent took the objection that the Court of SDM has no jurisdiction to entertain the said petition. After hearing both the parties, Mr. Manoj Kumar, the then SDM accepted the objection by holding that he had no jurisdiction to entertain such petition. No doubt, during the investigation, PW Shish Ram Mamgai, Nagendera Dutt Raturi and Nishar Ahmed testified that earlier similar applications were dealt with by Mr. Manoj Kumar being the SDM and he also used to pass rectification orders. But there is nothing on record, which may suggest whether in those cases there was any opponent or whether such opponent had taken any objection of jurisdiction or not.
14. Now coming to Section 219 IPC, which reads as under:-
Public servant in judicial proceeding corruptly making report, etc., contrary to law.-
Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
(emphasis supplied) CBI No. 13/11 Page No. 20 of 53 State through CBI v/s Kulwant Kaur Sidhu & others
(i) Bare perusal of Section 219 IPC makes it clear that to make out a prima-facie case, prosecution has to show that public servant had either acted corruptly or maliciously but in the instant case complainant failed to point out any evidence on record which may show that Mr. Manoj Kumar had either acted corruptly or maliciously. Mere fact that he dismissed the petition of complainant on the ground that he had no jurisdiction to entertain such petition is ipso-facto not sufficient to impose any criminal liability qua his act, which he performed in discharge of his judicial function.
(ii) In view of the aforesaid discussion, I am of the considered opinion that there is not sufficient evidence on record to summon him as an accused as prayed by the complainant.
Contentions relating to Mr. Ved Prakash Arora:
15. Complainant sagaciously contended that CBI had exonerated Mr. Ved Prakash Arora from all charges on the ground that no strong evidence found against him though he was known to the main accused Ms. Kulwant Kaur Sidhu. It was vehemently contended that Mr. Ved Prakash Arora had filed a civil suit against original complainant Ms. Rahiman Bai Guddi and Ms. Meena Choudhary seeking restrain order against them from interfering in the suit land which was allegedly in the possession of Mr. Ved Prakash Arora and in the said suit, he had also CBI No. 13/11 Page No. 21 of 53 State through CBI v/s Kulwant Kaur Sidhu & others filed a site plan describing his property. It was argued that the said site plan is totally false and further alleged that the suit was filed at the behest of Ms. Kulwant Kaur Sidhu to grab the property of original complainant. It was further alleged that during investigation, CBI had recorded the statement of PW Mr. Brij Mohan, Mr. Prem Singh and Mr. V. K. Tagaley. It was contended that mere perusal of their statements would make clear that Mr. Ved Prakash Arora intended to grab the property of complainant and due to that reason he had not only made a fabrication in the Kisan Bahi but he also got mutation of the property in wrongful manner in his name.
(i). Per contra, learned Public Prosecutor for CBI refuted the said contentions by arguing that though accused Mr. Ved Prakash Arora was related to Ms. Kulwant Kaur Sidhu but he was not chargesheeted as during investigation no sufficient evidence was found against him.
16. In the chargesheet, CBI described the role of accused Ved Prakash Arora as under:-
"Investigation further disclosed that Sh. Ved Prakash Arora S/o Sh. Chaman Lal Arora purchased land measuring 0.24 acre located closed to the land of the complainant in Khasra No. 46/11. According to the pedigree, this particular piece of land was owned by Sh. Ratna S/o Harpal who had purchased the CBI No. 13/11 Page No. 22 of 53 State through CBI v/s Kulwant Kaur Sidhu & others same from Ms. Sewa Giri in 1964 vide sale deed no. 796 and had got it mutated in his name. Thereafter, this piece of land was purchased by Sh. Gulshan Lal S/o Sh. Lala Harichand vide sale deed dated 30.4.1970 but he could not get it mutated and later on sold it to Sh. V. K. Tagaley son of Sh. Ram Lal Tagaley. In the sale deed, the boundaries of this land were defined. Sh. V. K. Tagaley sold the same piece of land vide sale deed dated 30.08.1982 to Sh. Prakash Arora without getting it mutated in his name. Sh. Ved Prakash filed application in the Court of Naib Tehsildar, Dehradun vide case No.1345 on 21.7.1983 for mutation which was decided on 05.08.1984 and was dismissed with the order that the said land was not existing in the Khatauni of seller Sh. Gulshan Rai. However, this was restored vide application dated 16.5.1984 and the application was signed by one Sh. Gupta and the proclamation was issued in the name of Gulshan Rai s/o Sh. V. K. Tagaley and Ved Prakash S/o Sh. Chamanlal whereas the said piece of land was purchased by Sh. V. K. Tagaley. On June 9, 1983 the said piece of land was mutated in the name of Sh. Gulshan Lal from Sh. Ratna after a lapse of 13 years whereas after execution of the sale deed, the time limit is for 6 months. Thereafter, the said land was mutated from Gulshan Rai to Sh. Ved Prakash Arora on 8.8.1984.CBI No. 13/11 Page No. 23 of 53
State through CBI v/s Kulwant Kaur Sidhu & others During the survey, the location of his land was shown in Khasra No. 180 area 600 sq. mtrs and in Khasra No. 181 Ka area 370 sq. mtrs which were of old Khasra No. 46/11. The location of these two new Khasra nos. was shown on the land of complainant whereas Sh. Ved Prakash Arora is in possession of a different piece of land claiming to have purchased from Sh. V. K. Tagaley. He was also shown co-
khatedar of Khasra No. 181 with Ms. Kulwant Kaur Sidhu according to the latest survey. In the case filed by him vide suit No. 12/99 on 21.5.99 in the Court of Civil Judge (Jr. Div.), Rishikesh against the complainant wherein he had submitted a rough sketch stating therein that alongwith his land there is a private road of Ms. Kulwant Sidhu which is factually incorrect."
(emphasis supplied)
(i) It is admitted case of the CBI that Ved Prakash Arora had purchased the property from PW V. K. Tagaley who in his statement informed the CBI that he had purchased the property from Gulshan Rai s/o Hari Chand vide sale deed dated April 30, 1970. He further clarified that in the said sale deed, neem trees were wrongly shown on his land as in the original sale deed of Sewa Giri in the name of Ms. Ratna, the said neem trees were shown out of the said land. He further testified CBI No. 13/11 Page No. 24 of 53 State through CBI v/s Kulwant Kaur Sidhu & others that he had sold the said land to Ved Prakash Arora vide sale deed dated August 30, 1982 but by that time, the property was not mutated in his name. It means that PW V. K. Tagaley sold the said land to Ved Prakash Arora without getting mutation of the land in his favour. He further testified that though Gulshan Rai had already died but mutation was got done from Ms. Ratna to Gulshan Rai and Gulshan Rai to Ved Prakash Arora. PW Tagaley expressed his ignorance about the said mutation proceeding. If Mr. Gulshan Rai had died prior to mutation, question arises how mutation had been done in favour of Mr. Ved Prakash Arora from Mr. Gulshan Rai. PW V. K. Tagaley further stated that according to the mutation, the father name of Mr. Gulshan Rai is mentioned as V. K. Tagaley which is incorrect and testified that same is fabricated and wrong. From the record of mutation, it becomes clear that mutation was done in favour of Ved Prakash Arora by one Gulshan Rai s/o V. K. Tagaley whereas it should have been done by Gulshan Rai. Moreover, as per the statement of PW V. K. Tagaley, he is not the father of Gulshan Rai. This shows that Ved Prakash Arora had adopted some unlawful means to get the property mutated in his favour.
(ii) PW Mr. V. K. Tagaley further testified before the CBI that in another sale deed Ved Prakash Arora had changed the location of his land mischievously, which he could not change. He further clarified that there was no neem tree or any other tree on the land which he had sold to Ved Prakash Arora. Rather, neem trees were on the western side of Mrs. Rahiman Bai Guddi.
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(iii) PW Brij Mohan also corroborated the statement of Sh. V. K. Tagaley by stating that Ved Prakash Arora was a property dealer and he had purchased some property which was earlier in the name of Ms. Ratna and his land was located behind tejab factory. It is pertinent to state that as per the prosecution version, tejab factory belonged to the complainant. PW Brij Mohan further testified that land of Ved Prakash Arora was adjacent to the land of Shyam Narayan but Ved Prakash Arora had raised boundary on his land in wrong direction towards the land of complainant. This further shows that accused Ved Prakash Arora intended to grab the property of original complainant.
(iv) PW Prem Singh, the then Patwari deposed that on January 13, 1995 he had made an entry in favour of Ved Prakash Arora in the account no. 475 relating to Khasra No.180 area 0.600 hectors and Khasra No. 181 Ka having the area 0.0370 hectors (total area 0.097 hectors) lagan ` 2.40 in the Kisan Bahi; He further clarified that though there is a reference of tar bar vat khute in Kisan Bahi but same was not written by him and further clarified that in Kisan Bahi this was not required to be mentioned. This shows that some fabrication was got done in the kisan bahi in order to justify the claim of Ved Prakash Arora in support of the land mentioned therein.
(v). In view of the aforesaid evidence, it is difficult to say at this stage that there is no evidence on record against Ved Prakash Arora CBI No. 13/11 Page No. 26 of 53 State through CBI v/s Kulwant Kaur Sidhu & others to summon him for the alleged offences. To my mind, there are more than sufficient evidence against Ved Prakash Arora to show prima-facie that he intended to grab the property of complainant and he was acting in conspiracy with main accused i.e. Ms. Kulwant Kaur Sidhu.
Contentions relating to Sohan Lal Sharma and Shankar Kamath:-
17. Complainant sagaciously contended that Sohan Lal Sharma was the manager of Ms. Kulwant Kaur Sidhu whereas Shankar Kamath was her driver. It was argued that Shankar Kamath had got prepared a forged GPA dated March 27, 1998 qua Khesra No. 46/44 and 25/4 in his favour from the Som Dutt. The said GPA was also witnessed by Sohan Lal Sharma besides other witnesses. On the basis of said GPA, Shankar Kamath had sold the said land to Ms. Kulwant Kaur Sidhu. It was argued that the said GPA was got executed by Shankar Kamath at the behest of Ms. Kulwant Kaur Sidhu in order to grab the property of complainant. It was further contended that Som Dutt, who allegedly executed the said GPA in favour of Shankar Kamath, in his statement before the CBI, deposed that the same was got executed by Sohan Lal Sharma, Manager of Mr. Balram Jakhar and further testified that he had no land in Khasra No. 46. Though he had some land in Khasra No. 25 but he had already sold the same to Mr. Balram Jakhar in the sum of ` 1 lac.
(i) It was further submitted that Mr. Sohan Lal Sharma was CBI No. 13/11 Page No. 27 of 53 State through CBI v/s Kulwant Kaur Sidhu & others the manager of Mr. Balram Jakhar as well as manager of Ms. Kulwant Kaur Sidhu and further submitted that this fact would be cleared from the documents placed by the CBI on record. As per the documents placed on record, Ms. Kulwant Kaur Sidhu had given a loan of ` 11 lac to the firm of Mr. Balram Jakhar i.e. M/s Balram Sajjan Kumar and the account statement of the said firm was signed by Mr. Sohan Lal being Manager. On the said loan amount, interest to the tune of ` 71,243.84 was given in favour of Ms. Kulwant Kaur Sidhu and certificate in this regard was also signed by Mr. Sohan Lal being Manager of the firm. Ms. Kulwant Kaur Sidhu had shown the said interest as her income in her ITR for the year ending March 31, 1995. It was further submitted that Mr. Sohan Lal had witnessed the forged GPA dated March 27, 1998 allegedly executed by Mr. Som Dutt in favour of Mr. Shankar Kamath whereas in Khesra No. 25/4 and 46/44 was not in existence because by that time new Khesra number had already been allotted in the survey.
(ii) It was further contended that Mr. Sohan Lal had lodged a complaint with the police of PS Raiwala against the complainant and her brother allegedly that the land on which passage was constructed from the Kothi of Ms. Kulwant Kaur Sidhu to Haridwar-Rishikesh Highway belonged to Ms. Kulwant Kaur Sidhu and police had prepared a Kalendra on the basis of his complaint as police had apprehension of breach of peace in the area. However, when Mr. Sohan Lal appeared in the witness box in OS No. 407/96 titled Rehiman Bai Guddi vs. Ms. Kulwant Kaur Sidhu, before the Court of Ld. Civil Judge and CD10FTC CBI No. 13/11 Page No. 28 of 53 State through CBI v/s Kulwant Kaur Sidhu & others Dehradun, he deposed that he did not remember whether he had made any such complaint with PS Raiwala or not. He further deposed that the passage was in existence since long and it was being used by villagers to go to their village and further testified that the said passage leads from Highway to village and there was no other passage for the villagers to go to the village. It was argued that before the Court of Ld. Civil Judge, Mr. Sohan Lal took a somersault by stating that the passage is a common passage which leads from Highway to village whereas at the time of lodging Kalendra, he alleged that the said passage belonged to Ms. Kulwant Kaur Sidhu. It was further contended that it is admitted case of CBI that the said passage ends at the Kothi of Ms. Kulwant Kaur Sidhu, which shows that Mr. Sohan Lal had made a false statement before the Court of Ld. Civil Judge. It was further argued that even Mr. Sohan Lal had moved an application on behalf of Ms. Kulwant Kaur Sidhu to seek adjournment in the said case. Similarly, he also applied for certified copy on behalf of Ms. Kulwant Kaur Sidhu. It was urged that all these show that he was also involved in the conspiracy hatched by Ms. Kulwant Kaur Sidhu to grab the property of complainant and in furtherance of the common object of the said conspiracy Mr. Sohan Lal had rendered his assistance to Ms. Kulwant Kaur Sidhu as and when desired.
(iii) It was further contended that CBI had exonerated Mr. Sohan Lal Sharma as well as Mr. Shankar Kamath from all charges on the ground that there is no strong evidence against them on record.
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(iv). Per contra, learned Public Prosecutor for CBI refuted the said contentions by arguing that both had not been charge-sheeted because during investigation no strong evidence was found against them.
(v) It is admitted case of CBI that Mr. Som Dutt had executed a GPA dated March 27, 1998 wherein Mr. Som Dutt claimed himself as the absolute owner of land in Khesra No. 25/4 and 46/44. It is also admitted case of CBI that during investigation, Mr. Som Dutt clarified that he did not possess any land in Khesra No. 46/44 and whatever land he had in Khasra No. 25, he had already sold the same to Mr. Balram Jakhar in the sum of ` 1 lac. He further testified that GPA dated March 27, 1998 was got executed by Mr. Shankar Kamath from him and Shankar Kamath had not read over and explained its contents to him. The said statement of Mr. Som Dutt is sufficient prima-facie at this stage to draw a conclusion that Mr. Shankar Kamath had got executed the said GPA with some ulterior motive. Since, it is admitted case of CBI that on the basis of said GPA Mr. Shankar Kamath had sold the property in favour of Ms. Kulwant Kaur Sidhu, this shows that the said GPA was got prepared to execute the sale deed of land in question in favour of Ms. Kulwant Kaur Sidhu.
(vi) Besides the above overt acts of Shankar Kamath, there are also evidence on record to show that he had criminally intimidated CBI No. 13/11 Page No. 30 of 53 State through CBI v/s Kulwant Kaur Sidhu & others the complainant, her family members and witnesses related to her. In this regard, the statements of PW Mr. Sandeep Kumar and PW Jagbir Singh, both are constables of Delhi police, are relevant as they categorically testified before the CBI that Mr. Shankar Kamath was also one of the persons who criminally intimidated the complainant and her family members. Similarly, PW Sanjay Sharma also testified before the CBI that muscle-men of Ms. Kulwant Kaur Sidhu had criminally intimidated him and the complainant. Similarly, PW Kuwar Singh, Vikram Singh, Nirmala also testified before CBI that complainant was intimidated by the muscle-men of Ms. Kulwant Kaur Sidhu.
18. Now coming to the role of Mr. Sohan Lal Sharma.
(i) The role of Mr. Sohan Lal is not merely that he had witnessed the fabricated GPA dated March 27, 1998; rather he also lodged a complaint against the complainant at PS Raiwala that land on which passage had been constructed belonged to Ms. Kulwant Kaur Sidhu and complainant intended to grab the same and due to that reason there was an apprehension of breach of peace in the area. As already stated that Mr. Sohan Lal was the manager of the firm of Mr. Balram Jakhar and from the statement of witnesses recorded by the CBI, it is clear that Mr. Balram Jakhar used to visit Ms. Kulwant Kaur Sidhu frequently. This shows that Mr. Sohan Lal had lodged the complaint with PS Raiwala at the behest of Ms. Kulwant Kaur otherwise he had no business to lodge a complaint against the complainant. This CBI No. 13/11 Page No. 31 of 53 State through CBI v/s Kulwant Kaur Sidhu & others fact becomes more clear as he appeared as an witness on behalf of Ms. Kulwant Kaur Sidhu in Civil Suit No. 407/96. But surprisingly, in his statement before the Court of Ld. Civil Judge, he deposed that the said passage was being used by public to go to village as there was no other passage from Highway to the village. But it is admitted case of CBI that the said passage ends from Highway at the Kothi of Ms. Kulwant Kaur Sidhu. This shows that he created a false circumstance in favour of Ms. Kulwant Kaur Sidhu to show that either the land in dispute belonged to Ms. Kulwant Kaur Sidhu or it was a public passage but the same did not belong to complainant. Besides that, PW Bhisham Dutt Joshi also testified before the CBI that Sohan Lal, manager of Ms. Kulwant Kaur Sidhu came to him and asked him to make a statement in favour of Ms. Kulwant Kaur Sidhu. He further testified that he had made the said statement at the behest of Mr. Sohan Lal and he also testified that Mr. Sohan Lal also got recorded the statement of PW Mr. Hoshiar Singh. Thus, at this stage, there is no reason to disbelieve the version of complainant that he was also member of the conspiracy.
(ii) In view of the aforesaid discussion, I am of the considered opinion that there are overwhelming evidence on record to make out a prima-facie case against accused Sohan Lal Sharma as well as Shankar Kamath to show prima-facie that they were members of criminal conspiracy and they acted in furtherance of common object of the conspiracy i.e. to grab the property of original complainant.
CBI No. 13/11 Page No. 32 of 53State through CBI v/s Kulwant Kaur Sidhu & others Contentions relating to Hoshiar Singh:-
19. Complainant vigorously argued that Hoshiar Singh was also part of the conspiracy as he had made a false statement in the Court of Ld. Civil Judge, Dehradun in Civil Suit No. 407/96 that passage was on the Gram Sabha land. It was contended that from the statement of PW Bishambhar Dutt Joshi recorded by CBI, it becomes clear that Sohan Lal Sharma approached Hoshiar Singh to make the said statement. It was further contended that Hoshiar Singh also witnessed the fabricated GPA dated March 27, 1998, which further suggests that he was member of the criminal conspiracy since beginning. It was further submitted that Hoshiar Singh also helped Ms. Kulwant Kaur Sidhu in the construction of passage as he had given his tractor to transport material for the construction of said passage. Besides that, he also did shremdan in the construction of the said passage. Hoshiar Singh also signed a sale deed dated August 4, 1999 in favour of Ms. Kulwant Kaur Sidhu which was allegedly executed by Mr. Brij Mohan.
(i). Per contra, learned Public Prosecutor appearing for CBI refuted the said allegations by arguing that he was not charge-sheeted because during investigation, no substantial evidence was found against him.
(ii) No doubt, Hoshiar Singh had signed the GPA dated March 27, 1998 and sale deed dated August 4, 1999. But mere fact that CBI No. 13/11 Page No. 33 of 53 State through CBI v/s Kulwant Kaur Sidhu & others he had signed the said documents as a witness is not sufficient to draw a conclusion that he was in conspiracy with accused Ms. Kulwant Kaur Sidhu because witnessing the documents only shows that he was a witness to the execution of the documents but this ipso-facto not sufficient to arrive at a conclusion that he was the member of conspiracy. From the statement of witnesses recorded by CBI, it can safely be culled out that Ms. Kulwant Kaur Sidhu was a powerful lady in the area. In these circumstances, it cannot be ruled out that Hoshiar Singh had signed the said documents as a witness under her influence or under the influence of her staff as PW Mr. Bishamber Dutt Joshi testified before CBI that Mr. Sohan Lal Sharma, manager of Ms. Kulwant Kaur Sidhu approached him and Mr. Hoshiar Singh to make a statement in favour of Ms. Kulwant Kaur Sidhu. Similarly, no doubt Hoshiar Singh had made a statement in favour of Ms. Kulwant Kaur Sidhu in Civil Suit No. 407/96 but from the statement of Mr. Bishamber Dutt Joshi, it appears that he had made the said statement at the behest of Mr. Sohan Lal Sharma. Thus, to mind, this itself is not sufficient to arrive at a conclusion that he was member of the conspiracy. Sofar, providing tractor during the construction of passage and rendering shermsewa in the passage is concerned, I am of the view that the same does not prove that he was a member of conspiracy because from the statement of witnesses recorded by CBI, it can safely be culled out that numerous persons of the village had rendered shermdan in the construction of passage. In these circumstances, I am of the considered opinion that there are not sufficient evidence on record to hold prima-facie that he was a member CBI No. 13/11 Page No. 34 of 53 State through CBI v/s Kulwant Kaur Sidhu & others of conspiracy, thus, in my view there is not sufficient evidence on record to summon him as an accused.
Contentions relating to Mr. Satinder Dhamanda:-
20. Complainant sagaciously contended that during investigation CBI recorded the statement of several persons including Prem Singh, Dhan Bahadur, Padam Bahadur and Kashi Ram. It was argued that from their statements, it becomes abundantly clear that Mr. Satinder Dhamanda had got fabricated a false sale deed from Mr. Dhan Bahadur in favour of Ms. Kulwant Kaur Sidhu, which shows that he was a part of the conspiracy and he helped the main accused Ms. Kulwant Kaur Sidhu in preparing a false document in favour of Ms. Kulwant Kaur Sidhu to justify her claim over the property in dispute. It was further contended that from the statement of Mr. Suresh Chand Uniyal it also becomes clear that Mr. Satinder Dhamanda had approached him to make a false deposition in respect of the passage. It was urged that this further shows that Mr. Satinder Dhamanda had not only helped Ms. Kulwant Kaur Sidhu in preparing false sale deed but he also helped her by producing false witnesses.
(i) It was further contended that CBI exonerated Mr. Satinder Dhamanda from all the charges mere on the ground that no strong evidence was found against him during investigation which is contrary to the record.
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(ii) Learned Public Prosecutor appearing for CBI refuted the abovesaid contentions by arguing that since no sufficient evidence was found against Mr. Satinder Dhamanda during investigation, he was not chargesheeted and there was no lapse on the part of CBI.
(iii) It is undisputed fact that CBI had recorded the statement of Mr. Dhan Bahadur and Mr. Padam Singh during investigation. PW Dhan Bahadur in his statement testified that in the year 2000 Mr. Satinder Dhamanda came to him and asked to execute a sale deed regarding the land of Smt. Sheetal Devi in favour of Ms. Kulwant Kaur Sidhu and he took him to the house of Ms. Kulwant Kaur Sidhu where Ms. Kulwant Kaur Sidhu asked her to transfer the land of his Bua Smt. Sheetal Devi in her favour. Upon this, he told Ms. Kulwant Kaur Sidhu that the said land was not in his name; nor he had seen the land and asked a question how he could transfer the said land in favour of Ms. Kulwant Kaur Sidhu? Upon this, Ms. Kulwant Kaur Sidhu told him that all the documents would be prepared by Gram Pradhan Mr. Satinder Dhamanda and he had to sign the documents and to affix his photographs. He further testified that at their behest, he had signed on the sale deed, which was got prepared by Mr. Satinder Dhamanda. He further told the CBI that Mr. Satinder Dhamanda had given ` 20,000/- to him stating that the same was got sent by Balram Jakhar. From his testimony, it becomes prima-facie clear that Mr. Satinder Dhamanda had got prepared a false sale deed from Mr. Dhan Bahadur in favour of Ms. CBI No. 13/11 Page No. 36 of 53 State through CBI v/s Kulwant Kaur Sidhu & others Kulwant Kaur Sidhu knowingly well that Mr. Dhan Bahadur was not the owner of the said land.
(iv) It is also admitted case of CBI that during investigaiton, investigating officer had recorded the statement of Mr. Padam Bahadur. In his statement he testified that Mrs. Sheetal Devi was his chachi in relation and she had died in the year 1990-91 and further testified that Mr. Dhan Bahadur was not related to Smt. Sheetal Devi. Even Mr. Dhan Bahadur does not belong to their caste. This shows that Mr. Dhan Bahadur agreed to execute a sale deed in respect of the land of Smt. Sheetal Devi despite the fact that he had no relations with her.
(v). CBI also recorded the statement Mr. Prem Singh, Revenue officer. In his statement, he testified that he had issued a fake Khatoni at the instance of Mr. Satinder Dhamanda. He further testified that the land as mentioned in the sale deed executed by Mr. Dhan Bahadur in favour of Ms. Kulwant Kaur Sidhu was not located near the plot of Ms. Kulwant Kaur Sidhu as mentioned in the sale deed; rather it was located at the distance of about 2 km from the land of Ms. Kulwant Kaur Sidhu. He further admitted before the CBI that it was his duty to verify the legal heirs of deceased Smt. Sheetal Devi before transferring the land but he did not perform his duty under the influence of Mr. Satinder Dhamanda. It is also admitted case of CBI that Mr. Suresh Chand Uniyal was also interrogated and he in his statement testified that Mr. Satinder Dhamanda approached him to make a statement in favour CBI No. 13/11 Page No. 37 of 53 State through CBI v/s Kulwant Kaur Sidhu & others of the passage in dispute, accordingly, he made a statement as desired by Mr. Satinder Dhamanda. This further shows that Mr. Satinder Dhamanda also arranged witnesses in favour of Ms. Kulwant Kaur Sidhu.
(v) In view of the overwhelming evidence on record, I do not find any force in the contention of counsel for CBI that there is no sufficient evidence on record to show that he was not a part of conspiracy. In my opinion the above evidence are sufficient to show prima-facie that he was in conspiracy with Ms. Kulwant Kaur Sidhu, thus he is also liable to face trial along with her.
Contentions relating to Mr. L. D. Bhatia & Kumari Archna Bhatia:-_
21. It was contended that though both the above persons are advocates by profession, yet they were also members of the conspiracy as they had prepared fabricated documents at the behest of Ms. Kulwant Kaur Sidhu. Besides that, they had also threatened the complainant and her family members including her security personnels at the behest of Ms. Kulwant Kaur Sidhu.
(i) It was further argued that Mr. L. D. Bhatia had prepared a GPA allegedly executed by Mr. Som Dutt in favour of Mr. Shankar CBI No. 13/11 Page No. 38 of 53 State through CBI v/s Kulwant Kaur Sidhu & others Kamath in respect of the land situated in Khasra No. 25/4 and 46/44 village Haripur Kalan. It was further contended that PW Som Dutt in his statement candidly admitted that he did not possess any land in Khasra No. 46 and further stated that the said GPA was got prepared by manager of Mr. Balram Jakhar and he signed the same at his instance. It was argued that this shows that Mr. L. D. Bhatia had prepared the said GPA even without consulting its executor i.e. Mr. Som Dutt.
(ii) It was further contended that similarly, Ms. Archna Bhatia, who is the daughter of Mr. L. D. Bhatia also drafted a fabricated sale deed dated July 19, 2000 allegedly executed by Mr. Dhan Bahadur in favour of Ms. Kulwant Kaur Sidhu despite the fact that Mr. Dhan Bahadur was not the owner of said land.
(iii) It was further contended that since Mr. L. D. Bhatia and Ms. Archna Bhatia prepared fabricated documents at the instance of Ms. Kulwant Kaur Sidhu helping her to purchase the land from the persons who were not the owner of said land, this shows that they were also part of conspiracy otherwise there was no occasion for them to prepare such fabricated documents.
(iv) It was further contended that both the said persons also involved in the act of criminal intimidation of threatening the complainant Ms. Meenu Choudhary and her staff and this fact is established from the statement of constable Sandeep Kumar who was security guard of the CBI No. 13/11 Page No. 39 of 53 State through CBI v/s Kulwant Kaur Sidhu & others complainant.
(v) Per contra, learned Public Prosecutor appearing for CBI refuted the said contentions by arguing that since no substantial evidence was found against them, they were not chargesheeted. It was further submitted that mere fact that they had drafted the document at the behest of their clients is not sufficient to draw an inference that they were members of the conspiracy.
(vi) It is admitted case of CBI that Mr. Som Dutt had executed a GPA dated March 27, 1998 in favour of Mr. Shankar Kamath in respect of the land situated in Khasra No. 25/4 and 46/44. It is also admitted case of CBI that on the basis of said GPA Mr. Shankar Kamath had executed the sale deed in favour of Ms. Kulwant Kaur. Perusal of the GPA dated March 27, 1998 reveals that the same was drafted by Mr. L. D. Bhatia. No doubt, being advocate by profession, it was the duty of Mr. L. D. Bhatia to draft the GPA as per the instructions given to him by his client. However, in the instant case, executor of said GPA i.e. Mr. Som Dutt testified before the CBI that he did not have any land in Khasra No.
46. He further stated before CBI that whatever land he had in Khasra No. 25, he had already sold the same to Mr. Balram Jakhar in the sum of ` 1 lac. He further testified that he had signed on the said GPA at the behest of Mr. Shankar Kamath, Manager of Mr. Balram Jakhar and further testified that it was got prepared by Mr. Shankar Kamath. Thus, from the statement of Mr. Som Dutt it can safely be culled out that the CBI No. 13/11 Page No. 40 of 53 State through CBI v/s Kulwant Kaur Sidhu & others said GPA was prepared by Mr. L. D. Bhatia without consulting Mr. Som Dutt. Since Mr. L. D. Bhatia is an advocate by profession, it was his duty to consult the executor of the GPA before preparing the same. Simultaneously, it was also his duty to check the documents to ensure whether Mr. Som Dutt was the owner of the land mentioned therein or not. But it appears that neither he consulted the executor of GPA nor he checked any such document. In these circumstances, it is seldom to believe that he had prepared the GPA in a routine course being an advocate.
(vii) Similarly, it is admitted case of CBI that Mr. Dhan Bahadur had executed a sale deed dated July 19, 2000 in favour of Ms. Kulwant Kaur Sidhu in respect of the land situated in Khasra No. 37 and
46. It is also admitted case of CBI that Mr. Dhan Bahadur was not the owner of said land as the said land belonged to deceased Smt. Sheetal Devi. Mr. Dhan Bahadur in his statement before CBI testified that Mr. Satinder Dhamanda approached him to transfer the said land in the name of Ms. Kulwant Kaur Sidhu and when he stated how he could transfer the same as the said land did not belong to him, Mr. Satinder Dhamanda took him to the house of Ms. Kulwant Kaur Sidhu where she told him that all documents would be got prepared by Mr. Satinder Dhamanda and he had to only sign the same and to affix his photographs. He further testified that he had signed the said sale deed at the behest of Mr. Satinder Dhamanda and Ms. Kulwant Kaur Sidhu and further stated that he was paid ` 20,000/- for the same.
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(viii) From the statement of Mr. Dhan Bahadur, it can safely be culled out that the sale deed dated July 19, 2000 was not prepared by Ms. Archna Bhatia at his instructions. Rather, it was prepared at the behest of Mr. Satinder Dhamanda and Ms. Kulwant Kaur Sidhu. Being an advocate, it was the paramount duty of Ms. Archna Bhatia not only to check the documents of ownership of its executor i.e. Mr. Dhan Bahadur but she was also required to see some document which may confirm his ownership over the said land. But she preferred to prepare the documents even without consulting the executor of GPA i.e. Mr. Dhan Bahadur. From the statement of Mr. Dhan Bahadur, it can safely be culled out that she had prepared the said sale deed at the behest of Mr. Satinder Dhamanda and Ms. Kulwant Kaur Sidhu.
(ix) Besides the above evidence against the said persons, there is also evidence on record to show prima-facie that they were indulged in the act of criminal intimidation at the behest of Ms. Kulwant Kaur Sidhu. Constable Sandeep was deputed as security guard to protect complainant Ms. Meenu Choudhary. In his statement, he testified before the CBI that on August 9, 2001, he along with complainant was present in the Court premises at Dehradun. At that time Mr. A. K. Rastogi, Advocate of Ms. Meena Choudhary was also present. He further testified that Ms. Archna Bhatia appeared in the Court on behalf of Ms. Kulwant Kaur Sidhu but since learned Presiding officer was on leave, matter was adjourned. He further testified that thereafter, Ms. CBI No. 13/11 Page No. 42 of 53 State through CBI v/s Kulwant Kaur Sidhu & others Archna Bhatia started abusing Ms. Meena Choudhary in filthy language and also assaulted her and also threatened that Ms. Meena Choudhary would not be allowed to get even one inch of land in village Haripur Kalan. He further testified that Ms. Archna Bhatia made an attempt to beat the complainant and when he prevented her, she had also given push to him and also abused him. He further testified that she had threatened the complainant and her brother that she would get them killed by cutting their body in so tiny pieces that same would not be traceable and no one would be alive in their family and further threatened the complainant that they did not know the power of Ms. Kulwant Kaur Sidhu. He further testified that in the mean time, Mr. L. D. Bhatia also came there and he also joined his daughter and threatened that if someone had even tried to see towards the land, they would be killed. Thereafter, Ms. Archna Bhatia also made an attempt to assault Ms. Meena Choudhary and her brother 2-3 times but constable Sandeep prevented her. He further testified that at that time Shankar Kamath and Sohan Lal Sharma were also present in the Court premises and they were instigating Ms. Archna Bhatia against the complainant and her brother and also threatened the complainant that she would not be allowed to go outside the Court room and they would be killed. He further testified that L. D. Bhatia also threatened that Ms. Kulwant Kaur Sidhu told them so many times that you (Ms. Meena Choudhary and Mr. Naresh) would not mend their ways unless they will be killed.
(xi) No doubt, being advocate it was their duty to represent CBI No. 13/11 Page No. 43 of 53 State through CBI v/s Kulwant Kaur Sidhu & others their client i.e. Ms. Kulwant Kaur Sidhu but they had no business to criminally intimidate their opponent. But in the instant case, Mr. L. D. Bhatia and Ms. Archna Bhatia indulged in the act of criminal intimidation, which shows that they were not merely representing their client i.e. Ms. Kulwant Kaur Sidhu. The act of Mr. L. D. Bhatia and Ms. Archna Bhatia prima-facie shows that they indulged in the act of criminal intimidation not being the advocate but being the members of conspiracy hatched by Ms. Kulwant Kaur Sidhu.
(xii) The individual act of the above said persons may not be sufficient to draw an inference whether they were members of conspiracy or not but the cumulative effect of their acts i.e to prepare fabricated documents in favour of Ms. Kulwant Kaur Sidhu and then to threaten opponents at the behest of Ms. Kulwant Kaur Sidhu are prima- facie sufficient to draw a conclusion that they had acted so in furtherance of the common object of the conspiracy i.e. to deprive the complainant from her land.
(xiii) In view of the abovesaid discussion, I am of the considered opinion that there is sufficient evidence on record to summon both of them for the alleged conspiracy.
Contentions qua Mr. Balram Jakhar:-
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22. Complainant vehemently contended that the entire conspiracy was hatched between Ms. Kulwant Kaur Sidhu and Mr. Balram Jakhar as there is a close relationship between them. It was astutely contended that though Mr. Sushil Jakhar, son of Mr. Balram Jakhar, made a statement before Delhi police on July 10, 1999 that Mr. Balram Jakhar had no concern with the property in dispute, but from Khatoni it becomes clear that Mr. Balram Jakhar is the owner of Khasra No. 142 and 146. It was vigorously argued that there are overwhelming evidence on record to show that Mr. Balram Jakhar used to visit Ms. Kulwant Kaur Sidhu frequently. It was further contended that even Mr. Balram Jakhar had sent a letter to DCP Karnail Singh making a false allegation against Inspector Azad Singh that he had threatened one Mr. Sushil Kumar Chorasia, employee of Ms. Kulwant Kaur Sidhu. It was argued that the said act shows that Mr. Balram Jakhar had very much interest in the property and he also knew Ms. Kulwant Kaur Sidhu otherwise there was no occasion for him to write such a letter to DCP of Delhi Police. It was further argued that false Kalendra was got prepared against the complainant at the behest of Mr. Balram Jakhar and the presence of Mr. Balram Jakhar is established from the DD entry made by the members of his escort party. It was further contended that from the statement of Mr. Ashish Bhattacharjee, it becomes clear that the accused Rajender Prasad Tiwari had given a proposal to him that he would get sold the land of complainant to Mr. Balram Jakhar in the sum of ` 40 lac as Mr. Balram Jakhar was interested in the said land. It was further contended that name of Mr. Balram Jakhar also surfaced during CBI No. 13/11 Page No. 45 of 53 State through CBI v/s Kulwant Kaur Sidhu & others the statement of Mr. Dhan Bahadur, Mr. Kashinath Singh, Mr. Prem Singh, Mr. Jagbir Singh, Mr. Kunwar Singh, Mr. Chandan Singh, Mr. Vijay Adlhalkha and Mr. Sanjay Sharma and further submitted that their statements are sufficient to conclude that the entire conspiracy was hatched at the behest of Mr. Balram Jakhar.
(i) It was further contended that at the behest of Mr. Balram Jakhar a false petition was filed by Mr. Thakur Singh and Mr. Krishan Kumar in the Court of Tehsildar, Rishikesh, Dehradun wherein they alleged that the land bearing Khasra No. 46/11 was purchased by their forefather on April 1, 1964 and since then they are in the possession of said land. They further alleged that after the death of their father, they are in the possession of said land. It was further submitted that when complainant came to know about the said proceeding, complainant filed the objections. Accordingly, petition was dismissed by the Court of Naib Tehsildar vide order dated July 12, 1999 by holding that the petition was filed with dishonest intention to grab the property of complainant.
(ii) Per contra, learned Public Prosecutor refuted the said contention by arguing that during the investigation no iota of evidence was found against Mr. Balram Jakhar to show that either the alleged conspiracy was hatched at the behest of Mr. Balram Jakhar or he was member of the conspiracy. It was contended that mere fact that Mr. Balram Jakhar knew the accused Ms. Kulwant Kaur Sidhu is not sufficient to draw a conclusion that he was the member of the CBI No. 13/11 Page No. 46 of 53 State through CBI v/s Kulwant Kaur Sidhu & others conspiracy.
(iii) From the submissions advanced by complainant it can safely be culled out that there are four main allegations against Mr. Balram Jakhar firstly that he knew the accused Ms. Kulwant Kaur Sidhu and he had some interest in the villa of Ms. Kulwant Kaur Sidhu as he used to visit the said villa frequently; secondly, that Mr. Rajender offered to PW Mr. Ashish Bhattacharjee to get sold the land of complainant to Mr. Balram Jakhar in the sum of ` 40 lac as Mr. Balram Jakhar was interested in the said land; thirdly, that Mr. Balram Jakhar got filed a false petition against complainant through Mr. Thakur Singh and Mr. Krishan Kumar and fourthly, that the name of Mr. Balram Jakhar surfaced in the statement of various witnesses.
(iv) Sofar, the allegations that Mr. Thakur Singh and Mr. Krishan Kumar had filed the petition in respect of land bearing Khasra No. 46/11 at the behest of Mr. Balram Jakhar is concerned, there is no evidence on record to prove the said allegations. Mere fact that the petition was filed by Mr. Thakur Singh and Mr. Krishan Kumar was dismissed by the court of Tehsildar by holding that the petition was filed with dishonest intention to grab the property of complainant is ipso-facto not sufficient to draw a conclusion that the said petition was filed at the behest of Mr. Balram Jakhar.
(v) Second main allegation against Mr. Balram Jakhar is that CBI No. 13/11 Page No. 47 of 53 State through CBI v/s Kulwant Kaur Sidhu & others Mr. Rajender Prasad Tiwari, Patwari of the village offered PW Ashish Bhattacharjee that he could arrange to get the land sold to Mr. Balram Jakhar in the sum of ` 40 lac.
23. I have perused the statement of Mr. Ashish Bhattacharjee which reveals that Mr. Rajender Prasad Tiwari told him that he could arrange to get the said land sold to Mr. Balram Jakhar in the sum of ` 40 lac within two days as he was having good terms with Mr. Balram Jakhar and Ms. Kulwant Kaur Sidhu. Except this statement, there is no other evidence on record to show that either Mr. Balram Jakhar asked Mr. Rajender Tiwari to arrange the said deal or that Mr. Balram Jakhar intended to buy the said land. Though CBI had chargesheeted Rajender Prasad Tiwari as an accused but he even in his statement nowhere deposed that Mr. Balram Jakhar ever asked him to arrange any such deal. In these circumstances, to my mind, mere statement of Mr. Ashish Bhattacharjee is not sufficient to draw a conclusion as prayed by complainant.
(i). The another main allegation against Mr. Balram Jakhar is that he had got registered a false Kalendra against the complainant. Admittedly, the Kalendra was lodged against the complainant. But there is no evidence on record to show that the said Kalendra was got registered at the behest of Mr. Balram Jakhar. Mere fact that Mr. Balram Jakhar was present in the same District in which said villa is located is not sufficient to draw a conclusion that the said Kalendra was got CBI No. 13/11 Page No. 48 of 53 State through CBI v/s Kulwant Kaur Sidhu & others registered at the behest of Mr. Balram Jakhar.
(ii) The another allegation against Mr. Balram Jakhar is that he had sent a letter to DCP Karnail Singh against Inspector Azad Singh.
(iii) It is admitted case of the complainant that Mr. Balram Jakhar had good relations with Ms. Kulwant Kaur Sidhu and he used to visit the villa of Ms. Kulwant Kaur Sidhu frequently. In these circumstances, if Mr. Balram Jakhar had sent a letter at the request of Ms. Kulwant Kaur Sidhu or at the request of her employee is not sufficient to hold that he was member of the conspiracy or that he had hatched any conspiracy.
24. I have perused the letter sent by Mr. Balram Jakhar to DCP Karnail Singh. In the said letter, he had highlighted some acts of Inspector Azad Singh. The said acts must have been disclosed to Mr. Balram Jakhar either by Mr. Sushil or by his employor. In the absence of any other evidence on record, I am of the view that the said piece of evidence is also not sufficient to impose any criminal liability against Mr. Balram Jakhar.
(i) The next allegation against Mr. Balram Jakhar is that his name was surfaced during the statement of various witnesses.
(ii) I have perused the statement of the witnesses. Perusal of CBI No. 13/11 Page No. 49 of 53 State through CBI v/s Kulwant Kaur Sidhu & others the statement of the witnesses reveals that none of the witnesses had ever met with Mr. Balram Jakhar in connection with the dispute in question. Nor Mr. Balram Jakhar had acted in their presence at any point of time. No doubt, Mr. Dhan Bahadur in his statement testified that when a sum of ` 20,000/- was given to him by Pradhan of the village, Pradhan told him that the said amount was got sent by Mr. Balram Jakhar. It is admitted case of the complainant that as per his statement, the said amount was handed over to Mr. Dhan Bahadur by village Pradhan i.e. Mr. Satinder Dhamanda and not by Mr. Balram Jakhar. In his entire testimony, Mr. Dhan Bahadur never disclosed that he had ever met with Mr. Balram Jakhar in connection with the execution of sale deed dated July 19, 2000. Statement of PW Mr. Kashinath Singh is based on the hearsay and he specifically mentioned in his statement that he had never seen Mr. Balram Jakhar.
(iii) Similarly, the statement of PW Mr. Prem Singh is not relevant qua Mr. Balram Jakhar. PW Mr. Jagbir is the constable of Delhi police and he was acting as security guard. Admittedly, Mr. Balram Jakhar had not acted in his presence. Whatever he had deposed about the relationship of Mr. Balram Jakhar and the villa of Ms. Kulwant Kaur Sidhu is based on hearsay, thus his statement is also not relevant to prove the fact that Mr. Balram Jakhar was the member of alleged conspiracy. The statement of PW Mr. Hoshiar Singh is relevant to the extent that Mr. Balram Jakhar used to visit villa and in the said area, people known that the said villa belonged to Mr. Balram Jakhar. Except CBI No. 13/11 Page No. 50 of 53 State through CBI v/s Kulwant Kaur Sidhu & others that, his statement is not relevant to impose any criminal liability against Mr. Balram Jakhar. PW Mr. Chandan Singh Rana deposed that he had sold his entire land to Ms. Kulwant Kaur Sidhu and before purchasing the said land, Mr. Balram Jakhar visited his house along with his escort party. This shows that Mr. Balram Jakhar had interest in the villa or he had some relations with Ms. Kulwant Kaur Sidhu but except that his statement is not relevant to show that either Mr. Balram Jakhar had hatched the alleged conspiracy against complainant or he was member of any such conspiracy. Similarly, statement of PW Mr. Vijay Kumar Adhalakha is not relevant as he testified that Ms. Kulwant Kaur Sidhu who claimed herself as relative of Mr. Balram Jakhar had constructed a kacha road on the land of original complainant. Except that, he had not uttered even a single word against Mr. Balram Jakhar. Similarly, PW Mr. Sanjay Sharma had not uttered even a single word against Mr. Balram Jakhar except that Mr. Jakhar used to visit the house of Ms. Kulwant Kaur Sidhu and he had close relations with her. But mere fact that Mr. Balram Jakhar had close relations with Ms. Kulwant Kaur Sidhu is not sufficient to draw a conclusion that he was a member of conspiracy or he hatched the said conspiracy. There is no other cogent evidence against Mr. Balram Jakhar.
(iv) In view of the aforesaid discussion, I am of the considered opinion that there are not sufficient evidence on record to summon Mr. Balram Jakhar as prayed by the complainant.
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(v) Though in her petition complainant also mentioned the name of Mr. Jai Raj, Conservator of Forest Department, Dehradun, yet during her submissions she did not press for same.
Contentions relating to the offences other then mentioned in the chargesheet:-
25. Complainant also requested to add some more sections i.e.467/468/471/193/218/219/506-Part-II on the grounds inter-alia that there are overwhelming evidence to attract the said sections against the accused persons, yet I am of the view that it would be more appropriate to deal with the said contentions at the time of framing of charges against the accused persons when the Court will be able to take the assistance of both the parties to form an opinion whether prima-facie case is also made out for any other section than sections mentioned in the chargesheet by the CBI, accordingly, liberty is given to the complainant to raise the contentions on this point at the time of framing of the charge.
26. No other contention is raised by the complainant.
Conclusion:-
27. In the light of aforesaid discussion, I am of the considered CBI No. 13/11 Page No. 52 of 53 State through CBI v/s Kulwant Kaur Sidhu & others opinion that there are sufficient evidence on record to summon the persons namely Mr. Ved Prakash Arora, Mr. Shankar Kamath, Mr. Satinder Dhamanda, Mr. Sohan Lal Sharma, Mr. L. D. Bhatia, Ms. Archna Bhatia as accused for the offence mentioned in the chargesheet. However, there are not sufficient evidence on record to summon the remaining persons namely Mr. Ravinder Godbole, Mr. Manoj Kumar, Mr. Hoshiar Singh and Mr. Balram Jakhar, accordingly, protest petition qua them stands dismissed.
28. In nut shell, protest petition stands partly allowed.
Announced in the open Court
on this 28th day of August 2015 (Pawan Kumar Jain)
Special Judge, CBI-01, North-West
Rohini Courts, Delhi/sv
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