Delhi High Court
Abdul Rehman And Anr. vs State on 19 July, 2002
Equivalent citations: 100(2002)DLT348, 2002(64)DRJ308
JUDGMENT S.K. Agarwal, J.
1. This petition under Sections 397/401 Cr.P.C. is directed against the orders dated 26th and 27th July, 2000 passed by the court of Shri G.P. Thareja, Addl. Sessions Judge, New Delhi, in the case FIR No. 152/95, under Sections 448/380/411/406/420/468/467/471/120-B IPC, P.S. Kotla Mubarakpur, whereby bail application of petitioner No. 2-Smt. Suricha Rehman (wife of petitioner No. 1) was rejected. Case of petitioner No. 1 is that the impugned order also affects his rights, therefore, joint revision by both the petitioners is maintainable.
2. Facts in brief are that on 9th May, 1995, Smt. Subhash Devi lodged a report alleging that some bad characters have entered ground floor of her house No. E-82, NDSE Part-I, New Delhi, and taken control of the same (hereinafter, "the property"); the police on the basis of her report, registered above noted case. The investigations revealed that the property was sold through eight sale deeds, all dated 11.1.95, by the petitioner No. 1 on the basis of unregistered General Power of Attorney dated 24.1.87, (hereinafter, "the GPA"), allegedly executed by the complainant, authorising him to sell the property. All the sale deeds were witnessed by petitioner No. 2 However, the complainant stated that she never executed the GPA in his favor authorizing him to sell the property; she never visited the office of the Sub-Registrar; and that a fraud was played upon her, by petitioners in connivance with the purchasers. Investigations of the case were unduly delayed and remained pending for more than four years, without any substantial progress, for the reasons best known to the Police. The complainant-Smt. Subhash Devi filed a Writ Petition (Crl.Writ Petition No. 374/99) on 13.4.99, impleading concerned police officials and petitioners as respondent Nos. 9 and 10, praying directions for expeditious investigations of the case. Writ Petition was disposed of on 9.12.99 directing the police to complete the investigations expeditiously and fairly within two months. In January, 2000 when warrant against petitioner No. 1 was obtained, he moved an application for grant of anticipatory bail, which was dismissed; he did not join the investigations and left India. The State through an application (Crl.M.No. 932/2000), in the Writ Petition, brought to the notice of the court above facts and sought more time to complete investigations. The time was granted. Petitioner No. 1 could not be arrested, and proceedings under Sections 82 and 83 of the Cr.P.C. against him were initiated. Challan was filed on 3.4.2000, against petitioners and purchasers, namely, Ashok Chaudhary, B.M.N. Sehgal, Sanjay and Tinny Khanna. Learned trial court took cognizance under the above-noted Sections. Cognizance was also taken against other accused persons, mentioned in column No. 2 of the challan, namely, Baldev Kumar, Ramesh Aggarwal and Narayan Arora.
3. Petitioners challenged the order issuing non-bailable warrants against him/them and filed several petitions for grant of anticipatory bail, but without any success. Reference to various petitions filed by them is not necessary and it would be enough to refer to following petitions.
(i) On 27th July, 2000, bail application of accused Mrs. Suricha Rehman (petitioner No. 2) was dismissed by the learned Addl. Sessions Judge with liberty to move bail application again after she deposits the amount received by her husband by selling the property along with interest. She sent to judicial custody. It was held as under:-
"It is admitted before me that the money is with Abdul Rehman, the husband of the accused. On the face of such a situation, should bail be granted. The good conscious directs me 'No' until and unless equity is maintained by the accused. Since good conscious directs otherwise, I refuse bail to the applicant. However, I give liberty to the applicant who are present that if they are ready to part with the money along with interest up to date by way of a bank draft at bank rate to move for bail again. Application is disposed of accordingly. Applicant be sent to custody and produce before the MM tomorrow.
Sd/-
ASJ, N. Delhi"
After two or three days she was granted bail by the trial court. However, the bail was cancelled on 4.8.2000 by the trial court on the ground that it was obtained by misrepresentation and that it was not brought to the court's notice that her bail application was earlier dismissed on merits. (ii) On 20.9.2000 the petitioner No. 1 moved an application (Crl.M.No. 1790/2000) in the above-noted Writ Petition of the complainant wherein in Crl.W.No. 374/99, they were arrayed as respondents 9 and 10 and obtained interim protection against arrest, he was directed to join the investigation and to produce the original GPA. He participated in the investigation on 21.9.2000, but did not produce the original GPA and consequently on 29.11.2000, his application was dismissed and the protection against arrest was vacated by the Division Bench holding as under:-
"Respondent No. 9, in spite of directions of 20th of September, 2000, has not produced the original power of attorney. Let the State draw inference, admissible under law, to the same. The interim protection that respondent No. 9 shall not be arrested stands vacated. With the observations, application stands disposed of. dusty counsel for State."
(emphasis supplied)
(iii) On 28.9.2000, petitioners filed above revision petition against the order dated 27.7.2000 dismissing bail application of petitioner No. 2, inter alia, on the ground that the principle of "equity" does not apply to the criminal courts and it cannot act as a court of recovery; that the Addl. Sessions Judge did not take into account that two civil suits between the parties relating to the same properties were pending; that it was not possible for the petitioners to fulfill the condition for depositing of the amount and it amounts to denial of bail. Notice was issued and interim protection against arrest was granted again subject to the condition that they will join investigation. this interim order continues to operate. This petition is being decided by this order.
4. At the outset it may be noticed that the petitioners in above petition filed on 28.9.2000 concealed the fact that the bail granted to petitioner No. 2 was cancelled vide orders dated 4th August, 2000 by the trial court, and that similar protection against arrest was operating by the order of Division Bench. These facts came light only during arguments. On 31.5.2001, when the matter came up for hearing on, it was noticed that investigations were carried out in a slip shod manner, without adopting the scientific approach. Several crucial aspects of the case were not investigated. Looking into the nature of allegations and gravity of the offence, and the fact that the petitioner No. 1 is practicing advocate, DCP, South District was directed to examine the matter. Thereafter, it appears that further investigations were taken up. On 23.8.2001, Mr. P. Kamraj, DCP, South District, filed an affidavit stating that: (i) during the course of investigation sale deeds executed by the petitioner Abdul Rehman in favor of purchasers were collected & deposited with Forensic Science Laboratory (hereinafter "F.S.L.") Malviya Nagar for opinion on the disputed signatures; receipts of payment, were neither found with relevant papers in Sub Registrar's Office nor the purchasers produced the same. Purchasers stated that Abdul Rehman admitted before Sub-Registrar about the payment. This fact was also corroborated by the then Sub Registrar. Sh. Shyam Chand who registered the sale deeds; (ii) enquiries from purchasers revealed that they had paid a sum of Rs. 15,10,000.00 out of which Rs. 7,70,000.00 was paid through cheques and rest payment was made in Cash. The details of various payment were also given. Ashok Chaudhary (the purchaser) paid Rs. 2,00,000.00 through Cheque No. 596789 issued form P.N.B. South Extn. which was encashed by Abdul Rehman; B.M.N. Sehgal (the purchaser), paid Rs. 2,00,000.00 through Cheque No. 484208 from his saving A/C No. 10273 of Syndicate Bank. Green Park and Tinny Khanna (the purchaser) paid Rs. 2,00,000.00 and 1,70,000.00 through Cheque No. 493338 & 493339 respectively issued from their account were encashed by Abdul Rehman through his Account No. 112148 in Allahabad Bank Krishana Nagar, Delhi;
(iii) in the course of further investigation original sale deeds, possession letter given by Abdul Rehman to BMN Sehgal (the purchaser) along with relevant documents were deposited with FSL; (iv) it was found that out of Rs. 7,70,000.00 received by Abdul Rehman through cheques from the Purchasers in his A/c No. 112148 of Allahabad Bank, Krishna Nagar Rs. 5,03,287 was available which was seized; and (v) certified copies of sale deeds were collected from the office of Sub-Registrar. Shri Shyam Chand, Sub-Registrar stated that Abdul Rehman admitted before him that he had received Rs. 15.10 lacs from the purchasers. The petitioners did not produce original GPA. The police sought more time to complete further investigation. On 1.11.2001 another status report of the investigation was filed incorporating the opinion of the hand writing expert on the documents seized including photocopy of the GPA on the basis of which sale deeds were executed. The GPA and the affidavit were opined to be not genuine.
5. Learned counsel for the petitioners took time to file reply and to have instructions in the matter. On 23rd January, 2002, Shri K.B. Andley, learned Senior Advocate, on instructions from petitioner No. 1, submitted that without prejudice to his rights and contentions, he was ready and willing to deposit the entire sale consideration of Rs. 15.10 lacs received by him, as the attorney of the complainant from the purchasers while executing eight sale deeds and sought two months' time and that the petitioner does not claim any right in the premises in dispute and would have no objection if the premises in dispute are seized during investigation. Petitioner was directed to file affidavit in support of his submission. Petitioner No. 1 deposited the amount in the Court and on 28th May, 2002 filed an affidavit in support of his submission, which reads as under:-
"(i) That I had executed eight Sale Deeds on 11.1.1995 in respect of property No. E-82, NDSE Part-I, New Delhi 110049 on the strength of General Power of Attorney dated 24.1.1987 executed by Subhash Devi Ved Prakash in my favor. The GPA was notarized only and not registered.
(ii) That I had handed over the original General Power of Attorney to Shri Ashok Kumar at the time of execution of Sale Deeds on 11.1.1995. Shri Ashok Kumar was accompanied by Shri B.M.N. Sehgal at the time of the execution of Sale Deeds.
(iii) That after 11.1.1995 I never came in possession of original General Power of Attorney.
(iv) That as per directions of the Division Bench dated 20.9.2000 in Criminal Writ Petition No. 374/99 I had made sincere efforts to obtain the General Power of Attorney from Shri Ashok Kumar and Shri B.M.N. Sehgal but both of them refused to oblige without assigning any reason. The original General Power of Attorney is still in their possession or may have been misplaced by them. In any case it was handed over by me to Shri Ashok Kumar on 11.1.1995 at the time of execution of Sale Deeds. Shri Ashok Kumar and Shri B.M.N. Sehgal are the main purchasers of the property and seems to be unwilling to produce the original General Power of Attorney for reasons best known to them.
(v) That I have deposited the entire sale consideration for property No. E-82, NDSE Part I, New Delhi-110049 which is in the sum of Rs. 15.1 lacs (Rupees Fifteen lacs Ten Thousand only) in this Court in the form of Bank Draft in favor of the Registrar, High Court of Delhi, without prejudice to the rights of the parties.
(vi). That I have authenticated by signing on each page a photo copy of the original General Power of attorney dated 24.1.1987, a copy of which is on police file. The photo copy authenticated by me is the true copy of the original General Power of attorney dated 24.1.1987 on the strength of which I executed 8 Sale Deeds on 11.1.1995 in respect of property No. E-82 NDSE Part-I, New Delhi-110049.
All the original sale deeds executed by me on 11.1.1995 were also authenticated by me with my signatures on each page of all the 8 sale deeds in question.
(vii). That the investigating officer namely, Inspector Hanuman Dan, conducted searches at my residence and my Chamber in Tis Hazari Court, Delhi-54 on 25.5.2002. A proper Search Memo was prepared by the Investigating Officer and he got the same signed by me and my wife Ms. Suricha Rehman who is petitioner NO. 2 in the Revision Petition. The petitioner No. 2 also joined investigation on 25.5.2002 and was interrogated by the Investigating Officer. On 27.5.2002 the IO called me to his office where I was confronted with Ashok Kumar and B.M.N. Sehgal, who were present there. I said it to their face that I had handed over the original General Power of Attorney to them and, more specifically, to Ashok Kumar at the time of execution of the sale deed on 11.1.1995. However, they denied it and said that the original document was not in either's possession.
(viii). That I shall raise no objection if the police seizes the disputed Ground floor of the property in compliance with this Hon'ble Court's orders or otherwise in accordance with the law, pending further investigations, criminal trial and further proceedings with regard to the dispute."
6. Learned counsel for State vehemently argued that admittedly the GPA was not a registered document; on the basis of an unregistered GPA dated 24.1.1987, sale of immovable property could be made, much less by eight registered sale deeds all dated 11.1.1995. As per the FSL report, on the photocopy of the GPA dated 24.1.87 produced by the petitioners, the entire second page and two lines in capital letters on page three are typed on a different typewriter than the page number one and page number three. The second page also does not bear any notary seal; it is on this page that the power to sell the property is contained. The affidavit dated 9.7.1994 which was used for effecting sale does not bear the signature of the complainant; and the typewriter used to type the affidavit is the same which is used for typing of the entire second page and second line in the capital letters of the third page on the GPA dated 24.1.87. He further argued that the original GPA is yet to be recovered and in the absence of the original Power of Attorney prosecution case may suffer, therefore, custodial interrogation of the petitioners is necessary and that in view of the conduct of petitioners and nature of allegations the petition is liable to be dismissed.
7. Learned counsel for complainant supporting learned APP for State further argued that under Sub-section (1) of Section 102 Cr.P.C. Police has the duty and the power to seize the property which has been obtained by commission of offence. In support of his submission reliance is placed on State of Maharashtra v. Tapas D. Neogy , wherein it was held:-
"A plain reading of Sub-section (1) of Section 102 indicates that the police officer has the power to seize any property which may be found under circumstances creating suspicion of the commission of any offence. The legislature having used the expression "any property" and "any offence"
have made the applicability of the provisions wide enough to cover offences created under any Act. But the two preconditions for applicability of Section 102(1) are that it must be "property" and secondly, in respect of the said property there must have been suspicion of commission of any offence."
He argued that because of non-availability of original General Power of Attorney investigating agency was not able to obtain definite opinion of the FSL on the forgery on the relevant page of the GPA and other associates of the petitioners are yet to be arrested. In support of his submission he also relied upon the statement made by Abdul Rehman (petitioner No. 1) on oath on 9.3.1998 in Civil Suit No. 2165/95 instituted by the complainant where he produced photocopy of the purchaser. The relevant portion of which reads as under:-
"Statement of Shri Abdul Rehman s/o Shri Abdul Mazid age 48 years, Legal Practitioner, R/o Z-2, Taj Enclave, Link Road, Gita Colony, Delhi-31 on SA:-
Q. In your written statement, you have pleaded in para 26 that you had executed 8 sale deeds in respect of property No. E-82, NDSE Part I, New Delhi in favor of defendants No. 1 to
5. On what basis, that is, under what authority you had executed the sale deeds?
A. I had executed these sale deeds in pursuance of a power of attorney executed in my favor by the plaintiff.
Q. Where is that power of attorney?
A. At the time of execution of the sale deeds, I had given the original power of attorney to defendant No. 5 on 11.1.1995.
Q. Had you mentioned in the sale deed that the original power of attorney had been handed over by you along with the sale deed to defendant No. 5?
A. No. I have not so mentioned in any of the 8 sale deeds executed by me.
Q. Had you obtained acknowledgement from the defendant No. 5 in token of having handed over the original power of attorney of him?
A. No. Q. When that power of attorney in you favor was executed by the plaintiff?
A. On 24.1.1987.
Q. Wherefrom have you given this date.
A. I have given this date after verifying them in the photocopy of that Power of Attorney available with me.
(Defendant No. 6 is directed to produce the copy of the Power of Attorney).
I am producing that copy of the Power of Attorney duly signed by me now on each page which is marked "A".
Q. Was this power of attorney registered under the Registration Act?
A. This power of attorney was not registered under the Indian Registration Act."
9. Learned counsel for petitioners, on the other hand, argued that the petitioners are a peace-loving and law abiding citizen; petitioner No. 1 is a practicing lawyer for the last 25 years; he was labouring under the bona-fide impression that on the basis of unregistered GPA dated 24.1.1987 photocopy of which was recovered by the police (one copy of the GPA which was produced before the Civil Court is Mark 'A'), he could sell the property in question; that petitioner at his own has already deposited the entire sale consideration of Rs. 15.10 lacs received by him, from the said purchasers without prejudice to his rights and contentions; that the original General Power of Attorney, is not with him. he argued that it was stated by him before the Civil Court that the original attorney was handed over by him to the purchasers. It might have been mis-placed. He further submits that the petitioner had also given an attested photocopy of GPA to the investigating officer, on the basis of which he had sold the property; and the search of his house and office has already been conducted. he further submits that petitioner has filed an affidavit stating the above facts; he does not object the property being seized during investigation; that no case for subjecting the petitioner for custodial interrogation is made out after seven years of registration of the FIR. He argued that petitioners are ready and willing to abide by any other condition that may be imposed.
10. I have considered the rival contentions. There is no dispute that petitioner No. 1 is a practicing lawyer and he has already participated in the investigation; the search of his house and office has already been conducted and total sale consideration received by him has been deposited in the court; further petitioners have no objection if the property is sealed by the Police during investigations. Attested photocopy of the GPA, on the basis of which he had sold the property to the co-accused persons, has been given to the Police. The photocopy of the same was earlier produced in the civil court and copy of the same was given to the police. Petitioner No. 2 was sent to judicial custody on 27th July, 2000, The co-accused/purchasers are already on bail; no serious effort appears to have been made to interrogate them in this regard. Learned counsel for State has failed to point out any disclosure statements either of the petitioner or the co-accused persons to make out a case for custodial interrogation.
11. Now coming to the apprehension that in the absence of original GPA, the prosecution case would be adversely affected, it may be noticed that case of the petitioners is that the property was sold on the basis GPA alleged to have been executed by the complainant. This is a fact which is especially within their knowledge. Original is supposed to be with either of them. Prima facie the burden of proving that eight sale deeds were executed by the petitioners on the basis of the genuine & valid GPA would be on them. This principle is embodied in illustration (b) of Section 106 of the Evidence Act, which reads as under:
"Burden of proving fact especially within knowledge:-
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustration
(a) xxx xxx
(b) A is charged with traveling on a railway without a ticket. The burden of proving that he had the ticket, is on him."
12. It is true that as a general rule this Section does not absolve the prosecution from the primary burden of proving its case and that burden of proof remains on the prosecution as contained in Section 101 of the Evidence Act, but Section 106 is designed to make an exception, where it is difficult for the prosecution to establish facts which are especially within the exclusive knowledge of the accused persons. In such a case the prosecution would not be required to eliminate all possible defenses. It is not the law that prosecution has to eliminate all possible defenses or circumstances which may exonerate them. If some facts are within their knowledge then they have to prove them. Of course, prosecution has to establish a prima facie case in the first instant. For this purpose, prosecution can rely upon material noticed above. If that is done, then it would be for the accused to prove that there was a genuine GPA authorizing him to get the sale deed executed in favor of the purchasers. The Division Bench while dismissing application of the petitioners on 29.11.2000 (Crl.M. No. 1790/2000 in Crl.W.No. 379/99) had permitted the State to draw inference admissible under the law.
13. To sum up, the case was registered in the year 1995. Police slept over the matter for over four years. The challan was filed on 3rd April, 2000, only after the complainant filed a writ petition in the High Court for expeditious investigation. It was found that the investigations were not carried out on scientific basis. Thereafter further investigations were taken up under the supervision of DCP during the pendency of this petition. Petitioner No. 2 Smt. Suricha Rehman remained in judicial custody after 23rd July, 2002. The purchasers are already on bail. The amount of the sale consideration of Rs. 15.10 lacs has already been deposited. No disclosure statement has been brought to my notice to support the prayer for custodial interrogation of the petitioners. They have already supplied attested photocopy of the GPA to the police on which FSL report has been obtained. The house and office search has already been conducted. Seven years have elapsed after registration of FIR. In the facts and circumstances of this case, the objections raised by learned APP for State opposing the grant of bail are not sustainable.
14. In view of the above, petitioners are ordered to be released on bail, on each one of them furnishing personal bond in the sum of Rs. 25,000/- thousand with one surety each in the like amount to the satisfaction of the SHO/Arresting Officer, subject to the condition that they shall not tamper with the evidence in any way and shall not leave India without prior permission of the Court.
It is further directed that the amount of Rs. 15.10 lacs deposited by the petitioners with the Registrar General of this Court shall be kept in a fixed deposit and would be released only after adjudication of the rights of the parties by the competent court. The investigating agency is directed to complete further investigation at the earliest and it would be free to seize the property in accordance with law, if the circumstances so warrant.
With the above directions, the petition stands disposed of. Record be sent back forthwith. Trial court is directed to proceed with the trial expeditiously. Any observations made herein would not affect the merits of the case during trial.