Delhi High Court
Sandeep Singh Bhatia vs State & Ors on 26 May, 2017
Author: R.K.Gauba
Bench: R.K.Gauba
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 4th May, 2017
Pronounced on: 26th May, 2017
+ W.P.(CRL) 1762/2013
SANDEEP SINGH BHATIA ..... Petitioner
Through: Mr. Rajat Wadhwa,
Advocate with Mr. Himanshu Nailwal &
Mr. Karan Preet Singh, Advocates
versus
STATE & ORS ..... Respondents
Through: Mr. Rajesh Mahajan,
Additional Standing Counsel for the State.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER
1. This petition invoking the writ jurisdiction of this court under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), impleading the State (NCT of Delhi), Commissioner of Police, Delhi, Inspector Sajjan Singh Yadav, as first, second and third respondents respectively, besides adding "unknown associates" of the aforesaid accused persons as the fourth respondent, was filed by Sandeep Singh Bhatia son of Gurbachan Singh Bhatia R/o D-45, Rajouri Garden, New Delhi-110027 in October, 2013 seeking the following reliefs:-
"(a) Issue appropriate writ, order or direction thereby directing to initiate legal action against respondent no.3 W.P. (Crl.) 1762/2013 Page 1 of 11 and his associates for various offences/atrocities committed by them;
(b) Issue appropriate writ, order or direction thereby directing respondent no.1 to initiate disciplinary actions against respondent no.3 and his associates for the various illegalities and offences committed by him as explained in the present petition;
(c) Issue appropriate writ, order or direction thereby directing the respondent no.1 to issue directions to initiate appropriate action by registering an FIR in light of the various facts detailed out in earlier complaints given by the petitioner and on the facts stated in the present petition;
(d) Issue appropriate writ, order or direction thereby directing that the investigation on the aforesaid FIR be conducted by CBI or some other independent investigation agency or at least under the supervision of some senior police officials; and
(e) Pass such other and further orders/directions, as may be required in the interest of justice and is deemed fit and proper in the facts and circumstances of the case."
2. Having regard to the background facts as set out in the petition, by order dated 25.10.2013, the petitioner was directed to place on record the terms and conditions of the settlement referred to in the order dated 23.02.2012 passed in Crl.M.C.4207/2011, it having been preferred earlier by the petitioner and his wife (Babbal Kaur Bhatia) to seek quashing of the case arising out of First Information Report (FIR) No.174/2010 of Police Station Crime Branch on the complaint of one Vinod Kakkar. The order was not complied with.
3. Upon notice being issued, the respondent State filed status report, in response to which the petitioner filed a reply. In W.P. (Crl.) 1762/2013 Page 2 of 11 compliance with the certain subsequent orders, additional reports have come on record besides affidavit of the Commissioner of Police submitted in compliance with order dated 25.07.2016. In due course, both sides submitted some further documents.
4. The background facts necessary for decision on the petition at hand need to be traced at this stage.
5. Vinod Kakkar son of Gurmukh Ram Kakkar, the first informant of the FIR No.174/2010 registered on 20.12.2010, had statedly entered into an agreement to sell his property no.BP-24, West Patel Nagar, New Delhi in favour of the petitioner and his wife on 18.12.2009, the agreement to sell executed at that stage indicating the sale consideration of Rs.2,89,37,705/- against which the petitioner claims to have paid part payment of Rs.30 lacs followed by another payment of Rs.27 lacs in cash on 29.01.2010, both payments purportedly acknowledged by a document described as bayana receipt, the date of execution of Sale Deed having been settled as 28.02.2010. It was alleged by Vinod Kakkar that on 27.02.2010 the petitioner informed him by SMS that he had purchased the entire building of the said property for Rs.3.2 crores and was ready to pay balance amount for execution of the Sale Deed, such communication being followed by a legal notice through advocate.
6. It is undisputed case that the petitioner and his wife instituted civil suit (OS) 446/2010 in this court for specific performance of the agreement to sell impleading Vinod Kakkar as the defendant he having been served in that matter on 10.03.2010. It was alleged by W.P. (Crl.) 1762/2013 Page 3 of 11 Vinod Kakkar that the said suit was filed by the petitioner and his wife on the basis of agreement to sell dated 18.12.2009, it being a forged document, signatures of Vinod Kakkar, his wife (Vijay Kakkar) and his daughter (Swati Khurana) having been fabricated thereupon. Upon receipt of the process in the said civil suit filed on the basis of such documents, Vinod Kakkar made a complaint addressed to the Commissioner of Police, Delhi which formed the basis of registration of FIR No.174/2010 by Police Station Crime Branch that took up investigation into offences allegedly shown committed being punishable under Sections 467/468/471/120-B of Indian Penal Code, 1860 (IPC). The investigation of the case was entrusted to the third respondent who, in terms of order dated 04.02.2011 in the said civil suit, took in his possession the original documents in the nature of agreement to sell and purchase dated 18.12.2009 and cash receipt dated 29.01.2010 which had been filed in the civil suit by the petitioner and his wife (the plaintiffs). It appears the said documents were sent to forensic science laboratory (FSL) at Rohini, Delhi where they were examined. It is stated that the report of the handwriting expert of FSL opined that the signatures of the complainant (Vinod Kakkar), his wife and daughter had been forged on the documents in question as filed by the petitioner and his wife in the civil suit.
7. It is undisputed that the petitioner and his wife were arrested in the course of investigation into the said FIR No.174/2010 by the third respondent, in his capacity as the investigating officer at 11:00 p.m. on 21.05.2010 from their residence at first floor of B-45, Rajouri Garden, New Delhi.
W.P. (Crl.) 1762/2013 Page 4 of 118. It appears that the petitioner and his wife, as indeed the first informant of FIR No.174/2010 were referred at their instance to mediation. The settlement through mediation came to be recorded on 06.07.2011. As noted earlier, copy of the said settlement was not filed by the petitioner with the petition at hand. It has not been submitted in spite of the directions in the order dated 25.10.2013.
9. Be that as it may, it is admitted case of the petitioner that on the basis of the abovesaid settlement, on application being moved, the Additional Sessions Judge by order dated 07.07.2011, directed the petitioner and his wife to be released on bail in case FIR No.174/2010. It is own case of the petitioners that after the said settlement, the civil suit referred to above was withdrawn. It is further his own case that pursuant to the settlement with the first informant Vinod Kakkar, he and his wife jointly moved Crl.M.C. No.4207/2011 praying for quashing of the FIR No.174/2010 of Crime Branch Delhi which was allowed, on the basis of settlement through mediation, by order dated 23.02.2012, though with costs of Rs.1 lacs each imposed on him and his wife for the reason it was necessary to put the petitioner and his wife to terms "in as much as the State machinery is set into motion".
10. After the FIR No.174/2010 of Police Station Crime Branch under Sections 467/468/471/120-B IPC had been quashed, the petitioner through his son Jappreet Singh Bhatia made complaints to various authorities in the government and police department alleging, inter alia, false information and fictitious or self-created documents having been submitted to police; the investigating W.P. (Crl.) 1762/2013 Page 5 of 11 officer (the third respondent) having subjected him and his wife to atrocities including illegal arrest effected in late night hours; the investigation undertaken being tainted; the handwriting expert being incompetent; he, his wife and other members of the family having been kept in wrongful confinement, subjected to intimidation, abuse, humiliation, molestation, maltreatment, ravishment and criminal intimidation with pressure exerted making them to sign on the settlement against their will and choice. The petition at hand was filed with the grievance that no action was taken on the said complaints to various authorities.
11. When the matter was heard on 25.07.2016, questions were raised as to how the case came to be registered by Police Station Crime Branch. Thus, it was directed that the Commissioner of Police, Delhi shall file an affidavit disclosing, inter alia, the relevant office order or guidelines defining jurisdiction and mandate of crime branch and particularly as to whether the property related disputes are generally assigned to crime branch or not and if not, under what circumstances the complaint leading to registration of FIR No.174/2010 had been so made over to the said Police Station. Further, since questions were raised as to the propriety of the manner of arrest of the petitioner and his wife, against the backdrop of the fact that their applications for anticipatory bail were pending in the court at that point of time, the arrest being in contravention of Section 46(4) Cr.P.C. the Commissioner of Police was called upon to also disclose, by his affidavit, the events leading to such arrest with documents and copies of record submitted in support.
W.P. (Crl.) 1762/2013 Page 6 of 1112. The Commissioner of Police, by his affidavit dated 28.07.2016, has placed on record copy of the notification dated 03.09.2008 whereby the erstwhile Crime Branch of Delhi Police had been declared to be a Police Station under Section 2(s) Cr.P.C. The Commissioner of Police has also affirmed on oath that all cases including property related disputes are assigned to Crime Branch for investigation generally on the recommendation of senior officers of District or Units including also by transfer of cases in various Police Station, such transfer of inquiry or investigation from other investigating units or agencies to crime branch, including cases involving cheating, property disputes, etc. being regulated by the Standard Operating Procedure laid down and circulated by the Commissioner of Police vide standing order no.Ops.87 dated 17.09.2010.
13. In the affidavit dated 28.07.2016 of the Commissioner of Police, it was further clarified that Vinod Kakkar had initially made a complaint on 10.03.2010 to Police Station Patel Nagar Delhi but then he had approached the office of Commissioner of Police by his complaint dated 08.12.2010 which was made over to DCP (Crime and Railway). It is pursuant to directions of DCP (Crime) that the FIR No.174/2010 was registered on 20.12.2010 in Police Station Crime Branch respecting offences punishable under Sections 467/468/471 IPC.
14. The petitioner and his wife had moved application for anticipatory bail no.322/2011 which was pending in this court when the parties went to mediation and settled the dispute by signing the W.P. (Crl.) 1762/2013 Page 7 of 11 memorandum of understanding (MOU) which eventually led to FIR No.174/2010 being quashed by this court. It is in the wake of the said order of this court that the final report under Section 173 Cr.P.C. submitted in the court of Additional Chief Metropolitan Magistrate (ACMM) of Central District was accepted on 09.07.2012, thereby drawing curtain on probe into allegations of forgery of documents in nature of valuable security and their fraudulent use by the petitioners and his wife.
15. The affidavit of Commissioner of Police refers to the FSL report confirming the forgery of the documents which had been submitted by the petitioner and his wife as plaintiffs in the civil suit. It states further that on 18.05.2011 efforts were made to trace the petitioner and his wife at their residence but they were found to be absconding and that on 21.05.2011 on some secret information as to their presence, steps were taken leading to the arrest. The affidavit of the Commissioner of Police does concede that the investigating officer had not complied with the command of the provision contained in Section 46(4) Cr.P.C. and that on this account departmental action against him had been initiated.
16. In the facts and circumstances noted above, it is not correct to contend that the FIR No.174/2010 pertained merely to a property dispute. Instead, it concerned serious offences of forgery of a document in the nature of valuable security (punishable under Section 467 IPC), the objective of such forgery allegedly being to commit the offence of cheating (attracting Section 468 IPC) and the W.P. (Crl.) 1762/2013 Page 8 of 11 use of such document by basing the claim in the civil suit for specific performance (involving offence under Section 471 IPC).
17. The notification whereby Crime Branch was constituted as a Police Station would not circumscribe the nature of cases which such Police Station may be called upon to investigate. The Standard Operating Procedure (SOP) issued by the Commissioner of Police also contains no inhibition as may be of any relevance to the dispute brought through the petition at hand. In these circumstances, the registration of the FIR in the Police Station Crime Branch cannot be described as a motivated or colourable exercise of jurisdiction.
18. The allegations against the third respondent, who was the investigating officer of the FIR pertain to the period anterior to or around the time of arrest of the petitioner and his wife on 21.05.2010. Yet, the petitioner or his wife or for that matter any member of his family privy to such acts of commission or omission as are alleged to have been committed did not rake up such issues before any authority either by way of information or by way of a grouse, much less to seek criminal action to be initiated. Noticeably, such allegations came to be leveled after the FIR No.174/2010 had been quashed by the order dated 23.02.2012 on the petition presented by the petitioner and his wife.
19. It may be that when the petitioner and his wife participated in the mediation process they were in judicial custody. But, it appears they had benefit of legal aid and advice. The process of mediation by its very nature is voluntary. The settlement was recorded, after W.P. (Crl.) 1762/2013 Page 9 of 11 the mediation on 06.07.2011. It was acted upon not only by the other party to the dispute but also by the petitioner and his wife. The civil suit in which the allegedly forged documents had been presented came to be withdrawn in its wake and the petitioner relied upon the said very settlement to approach the court, joining his wife as a co-petitioner in Crl.M.C. 4207/2011. The said petition was allowed at his instance on 23.2.2012. Till the FIR was quashed, the position taken by the petitioner was that the settlement had been voluntary reached. It is after the quashing of the FIR that he started raising grievance that he and his wife had been pressurized to agree to the settlement and that the allegations in FIR were not correct. Having taken advantage of the said settlement, to the extent of getting the FIR quashed, thereby precluding all investigation into his conduct, vis-à-vis, the allegedly forged documents it does not lie in his mouth to take an about turn to start claiming that he had been coerced into settling the dispute with the opposite party, the first informant of FIR No.174/2010.
20. The affidavit of Commissioner of Police which has been referred to earlier, discloses that appropriate departmental proceedings have been initiated against the third respondent for infraction of the command of law in Section 46(4) Cr.P.C. In this view, it cannot be said that the third respondent has not been made accountable.
21. For the foregoing reasons, the petition does not call for any direction in the nature claimed.
W.P. (Crl.) 1762/2013 Page 10 of 1122. The petition is, thus, dismissed.
(R.K. GAUBA) JUDGE MAY 26, 2017 vk W.P. (Crl.) 1762/2013 Page 11 of 11