Punjab-Haryana High Court
Pritpal Singh vs State (Union Territory on 17 September, 2009
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl.Misc. Petition No. M-21610 of 2009 (O&M)
Date of Decision: 17.9.2009
Pritpal Singh.
....... Petitioner through Shri
R.S.Cheema, Senior
Advocate with Shri
K.S.Nalwa, Advocate.
Versus
State (Union Territory, Chandigarh).
....... Respondent through Shri
Anupam Gupta, Public
Prosecutor, Union Territory,
Chandigarh with Shri
G.S.Chahal, Asstt. Public
Prosecutor, Union
Territory, Chandigarh.
Shri S.C.Nagpal, Advocate
for the complainant.
Shri M.P.Goswami,
Advocate for Smt.Kamaljit
Kaur.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This is a petition under Section 438 of the Code of Criminal Procedure,1973 (for short, `the Cr.P.C.') for grant of anticipatory bail to the petitioner in a case registered vide F.I.R.No.104 dated 20.5.2008 under Sections 419, 420, 467, 468, 471, 120-B of the Indian Penal Code,1860 (for Crl.Misc.Petition No. M-21610 of 2009 -2- ....
brevity, `the I.P.C.') at Police Station, Sector -3, Chandigarh.
According to the F.I.R., the allegations against the petitioner are that a company by the name of ATS Infrastructure Ltd. purchased land measuring 12 bighas 13 biswas out of land measuring 36 bighas 9 biswas situated in village Madhopur, Tehsil Dera Bassi, District Mohali vide a sale deed dated 30.9.2005 registered at the office of Sub Registrar, Dera Bassi. This land was shown to be in the name of Smt.Kamaljit Kaur wife of Pritpal Singh, resident of House No.754, Sector 41-A, Chandigarh. The sale deed was executed on the basis of General Power of Attorney (hereinafter described as `the GPA') dated 22.7.2005 registered at the office of Sub Registrar, Union Territory, Chandigarh. The total sale consideration was Rs.1,20,.17,500/- which was duly paid to the vendor. The possession of the land was delivered to the complainant-company and mutation was also sanctioned in its favour. Thereafter, the complainant received summons from the office of Collector, Sub Division, Dera Bassi in connection with some case filed by Smt.Kamaljit Kaur for the cancellation of mutation and for registration of a case on the ground that she had never executed GPA in favour of Pritpal Singh (petitioner) and that the same was a forged document.
A direct implication of this was that Pritpal Singh did not have the authority to sell the land which belonged to Smt.Kamaljit Kaur and since the GPA was forged, the complainant stood to lose both the land and the money as it had been duped on both the counts.
The petitioner, by way of the instant petition, has prayed that Crl.Misc.Petition No. M-21610 of 2009 -3- ....
he deserves the indulgence under Section 438 of the Cr.P.C. as he is about 48 years old and is the founder of Gurdwara Gursagar Sahib near Sukhna Lake, Chandigarh. It has been further stated that in 1993, he had established Shiromani Sant Khalsa International Foundation (Regd.), Chandigarh with the sole purpose of serving the humanity by setting up of charitable hospital, Old Age Home, School for the welfare of the people. He has averred that he was appointed as Chairman of the Foundation and one Col.Inderjit Singh was appointed as its President. This foundation had land measuring 6.75 acres in village Madhopur,Tehsil Dera Bassi where a Gurdwara in the name of Tapisar was also established and the land adjoining the said Gurudwara was owned by one Ram Singh son of Hazara Singh, resident of House No. 639-B, Phase XI, Mohali. This land measured 36 bighas 9 biswas. The foundation decided to purchase the said land for the purpose of fulfilling its dream of welfare and service of humanity and in furtherance of the said decision, five agreements to sell dated 8.12.1997, 20.12.1997, 28.12.1997 and 12.1.1998 were entered into and a sum of Rs.6 lacs was paid to Ram Singh as earnest money. However, the foundation could not arrange the balance amount to be paid to Ram Singh, it requested its devotees and followers to give funds on interest free basis so that the land could be purchased. Col. Inderjit Singh, President of the foundation came forward and agreed that he along with his relative Col.M.S.Bajwa, his friend Ltd.Col. Parampal Singh and one Harish would give the money on interest free basis to the foundation for the purchase of the said land. However, it was decided inter se between them that the land would be Crl.Misc.Petition No. M-21610 of 2009 -4- ....
registered in their names or in the names of their family members and as and when the foundation would have the money, the same would be returned back to them. Since Col. Inderjit Singh was the President of the foundation, it was decided that a new bank account would be opened in the name of Gursagar Welfare Organization at Punjab and Sind Bank, Sector 26 Branch, Chandigarh with Kanwaljit Kaur wife of Ltd.Col.Parampal as its joint holder along with Col.Inderjit Singh and in this account, an amount of Rs.5 lacs each was deposited by five donors, i.e., Col. Inderjit Singh, Col.Parampal Singh, Smt.Prabhjit Kaur wife of Mahinder Singh (sister of Ltd.Col.Parampal Singh) and Sudershan Sukhla (friend of Ltd.Col. Parampal Singh) and in this manner, a sum of Rs.20 lacs was collected and the same was paid to Ram Singh - vendor. The sale deeds of the land were executed in favour of Prabhjit Kaur on 6.1.2000, Sudershan Shukla on 7.1.2000, Parampal Singh on 18.1.2000 and Smt.Kanwaljit Kaur wife of Parampal Singh on 20.1.2000.
The further case of the petitioner is that he did not know any of these persons, who were only known to Col. Inderjit Singh. After some time, the donors who were known to Col. Inderjit Singh, started demanding their money back. Col.Parampal Singh also demanded his money back as he was going to America and accordingly, Col. Inderjit Singh returned half of the amount, i.e., Rs.2.50 lacs to him and assured that the rest would be made Similarly, Col.M.S.Bajwa went to Nigeria and Col.Inderjit Singh went back to Delhi.
In the month of January,2005, there were rumours that the land Crl.Misc.Petition No. M-21610 of 2009 -5- ....
would be acquired in Dera Bassi and consequently, the foundation requested Col.Inderjit Singh and that he and other persons, who had lent their money, should transfer the same in the name of Gurudwara and the money would be returned to him. All the said persons agreed to the proposal and consequently, Rs.20 lacs were transferred to the account of Col.Inderjit Singh. According to the petitioner, the money was paid to all the interested persons. It is his further case that the petitioner fell ill and thereafter, Ltd.Col.Parampal Singh and Sudershan Sukhla accompanied by two ladies, who were introduced as Smt.Prabhjit Kaur and Smt.Kanwaljit Kaur, came to Gurdwara Gursagar Sahib and executed GPAs in his favour on the same day in the presence of Sub Registrar, Chandigarh. Col.Inderjit Singh had executed two GPAs. Thereafter, the foundation collectively decided to sell the land in question and to purchase a big chunk of land near Gurudwara Hazoor Sahib in Maharashtra as the land was cheap there and it could buy a huge piece of land for attainment of its objective of service to humanity and mankind. In this manner, the land came to be sold to ATS Infrastructure.
In the backdrop of the aforementioned facts, learned counsel for the petitioner contended that there was apparently no fraud committed by the petitioner. As many as six GPAs were executed out of which the dispute is regarding one which pertained to Smt.Kamaljit Kaur and her share in the total land comes to 47/253,i.e., 2 Bighas and 7 Biswas and the value of which in terms of money comes to Rs.22 lacs approximately and that rest of the persons have not raised any dispute about it. According to the learned counsel for the petitioner, since challan has been submitted qua Crl.Misc.Petition No. M-21610 of 2009 -6- ....
other co-accused, it reflects that money was paid to all the persons involved in the transaction including Smt.Kamaljit Kaur and her husband- Col.Parampal Singh. He further contended that it is, in fact, a battle being fought by one of the real estate agent, namely, Sudershan Shukla, who is now acting as power of attorney holder of Smt.Kamaljit Kaur, who is staying abroad, which is also borne out from Annexure P7 in which the address of said Sudershan Shukla finds mention against the name of Smt.Kamaljit Kaur. It is further his contention that the police through investigation has not even cared to get compared the signatures of Smt.Kamaljit Kaur and, therefore, the question of the GPA being forged cannot be taken against the petitioner until and unless the signatures are compared, the forgery cannot be attributed to him. In any eventuality, it is contended that mens rea is not established from the material on record.
Learned counsel for the petitioner finally concluded his submissions by saying that in the given set of circumstances when there is hardly any material against the petitioner, he deserves the concession of pre- arrest bail.
On the other hand, learned counsel for Smt.Kamalajit Kaur contended that she had not received any amount, whereas learned counsel for the complainant-ATS Infrastructure as well as learned Public Prosecutor reiterated the allegations against the petitioner. They have further submitted that the petitioner along with other persons are involved in such like activities. Learned Public Prosecutor also contended that the petitioner is involved in the cases of like nature qua some other properties as well and Crl.Misc.Petition No. M-21610 of 2009 -7- ....
the investigation is going on.
I have thoughtfully considered the rival contentions and have perused the file.
This case has not been heard in isolation and, therefore, it would be necessary to advert to two other petitions which have come up before this Court prior to the filing of the instant petition.
Crl.Misc.No.49023-M of 2007 was filed by Smt.Kamajit Kaur wife of Parampal Singh for issuance of appropriate directions to the respondents, i.e., the State of Punjab, Director General of Punjab, Senior Superintendent of Police, Mohali and Station House Officer, Police Station, Dera Bassi to register an F.I.R. against the petitioner and few other persons, who were named therein for selling her property by forging her signatures by way of impersonation.
Another petition, viz. Crl.Misc.No.11904-M of 2008 was filed by the complainant in the instant F.I.R., namely, ATS Infrastructure also praying for appropriate directions to respondent nos. 1 to 6 therein, i.e., senior officials of Punjab and concerned police officials of Mohali, as also the Senior Superintendent of Police, Union Territory, Chandigarh and Station House Officer, Police Station, Sector 17, Chandigarh for registration of an F.I.R. against the petitioner, Inderpal Singh and Smt.Kamaljit Kaur wife of Parampal Singh. It has been alleged that the company has been duped of the entire sale consideration and since Kamajit Kaur has raised doubt about the GPA, the possession of the land also has been taken away from it. It was further alleged that Smt.Kamaljit Kaur is in league with the Crl.Misc.Petition No. M-21610 of 2009 -8- ....
aforesaid persons and, therefore, the case be registered against them as they had duped it.
This Court, while dealing with matter, passed the following order on 10.11.2008 in Crl.Misc.No.M-11094 of 2008:-
"Power of attorney dated 22.7.2005 purported to have been executed by Kamaljeet Kaur in favour of Sant Baba Prit Pal Singh, on the basis of which sale deed was executed, is stated to be forged one.
As a matter of fact, after registration of the case in the month of May,2008, that too after two years of the moving of the application against Sant Baba Prit Pal Singh, no headway has been made. It is the specific case of the complainant Kamaljeet Kaur that she visited India on 5.11.2001 and went back to U.S.A. On 25.11.2001 and she never visited India during the period 26.11.2001 to 4/5.1.2007 during which period offence is stated to have been committed.
The Investigating Officer, whosoever, remained posted did not proceed to detect the crime. The Investigating Officer did not work on the line if the vendees and the fictitious attorney were hand in glove. They also did not proceed to examine the records of the passport/ visa offices with regard to visit of Kamaljeet Kaur to India. They also did not examine the power of attorney and the sale deed from the office of Sub-Registrar where it is said to have been executed. The record also does not Crl.Misc.Petition No. M-21610 of 2009 -9- ....
reveal if they interrogated the accused. When confronted with the laxity in the investigation only excuse was made that ATS Infrastructure Limited - vendor has not supplied the power of attorney to the Investigating Officer. All that shows about the inefficiency of the Investigating Officer. The circumstances go to show that an attempt is being made to hush up the issue, therefore, I leave it to the Officers at the helm affairs to proceed by examining if any laxity has been made by the Investigating Officers whosoever remained In- charge of the case or the Investigating Officers and further direct the Inspector General of Police, Chandigarh to constitute a Special Investigating Team to investigate the matter and submit the report by 4.12.2008."
As seen above, the Special Investigation Team was constituted to look into the allegations, but despite this, there was no head-way in the investigation and ultimately, on 6.7.2009, this Court passed the following order:-
"On 10.11.2008, this Court had directed setting up of a Special Investigating Team to look into the serious allegations of fraud which have been brought to the notice of this Court in the present criminal miscellaneous petition. On that date before ordering the constitution of the Special Investigating Team, the Court had specially observed the glaring lapses committed by the Investigating Officer-in charge of the said investigation.
Crl.Misc.Petition No. M-21610 of 2009 -10- ....
Pursuant thereto, it has been pointed out that a Special Investigating Team was constituted. On 9th April,2009, it was stated before this Court that the report of the Forensic Science Laboratory was received which conclusively established that signatures of Kamaljeet Kaur wife of Parampal Singh were forged. The allegations as levelled by the complainant point to a serious fraud which has been further compounded with the apparent laxity of the Investigating Officer as a result of which the accused faced the prospect of being let off. The report of the Special Investigating Team has still not been submitted and neither the named accused has been arrested despite the fact that the report of the Forensic Science Laboratory prima facie establishes that the document is forged. It is not understandable as to why the respondents are dilly dallying over the report.
Let the inquiry report be submitted positively within a period of one week from today.
Adjourned to 14.7.2009.
Learned counsel for the parties pray that copy of the order be given dasti under the signatures of the Court Secretary of this Bench.
Ordered accordingly."
The reason for passing the aforesaid order was implicit therein when it stated that the report of the Forensic Science Laboratory stated that Crl.Misc.Petition No. M-21610 of 2009 -11- ....
the document, i.e., GPA was forged one. The directions were given to submit a report within one week thereafter, which was filed on 14.7.2009. Strangely enough, even though in the investigation, a prima facie case of fraud was established, yet, the police, for the reasons best known to them, was not taking any steps to arrest the accused persons. To a pointed query by the Court to the learned Public Prosecutor for Union Territory, Chandigarh, he candidly admitted that the petitioner enjoyed a considerable clout in the area and the possibility of some of the police officials being under his influence cannot be ruled out. He, however, assured that genuine efforts were being made to trace out the whereabouts of the petitioner. He further contended that there is some information that another case of the like nature has been registered against the petitioner in Dera Bassi. In these circumstances, he submitted that the prayer for pre-arrest bail of the petitioner be declined as it is a case of serious fraud.
The principles governing the grant of relief under Section 438 of the Cr.P.C. have been crystalized by the Supreme Court in Shri Gurbaksh Singh Sibbia and others Versus State of Punjab, 1980 Supreme Court Cases (Crl.) 465, wherein it was held as under:-
"In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears Crl.Misc.Petition No. M-21610 of 2009 -12- ....
likely, on considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. In fact, there are numerous considerations, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the consideration which the court has to keep in mind while deciding an application for anticipatory bail.
xx xx xx xx xx xx xx xx The question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. Therefore, the High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case Crl.Misc.Petition No. M-21610 of 2009 -13- ....
so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code. The judicial discretion granted under Section 438 should not be read down by reading into the statute conditions that are not to be found therein. The courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim,caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges which have to be met." (Underlining is mine).
In Salauddin Abdulsamad Shaikh Versus State of Maharashtra, 1996 Supreme Court Cases (Crl.) 198, the Apex Court, while dealing with again a matter under Section 438 of the Cr.P.C., observed as under:-
"When the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature Crl.Misc.Petition No. M-21610 of 2009 -14- ....
of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration, the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet is submitted.
Ordinarily the court granting anticipatory bail should not substitute itself for the original court which is expected to deal with the offence. It is that court which has then to consider whether, having regard to the material placed before it, the accused person is entitled to bail."
In D.K.Ganesh Babu Versus P.T. Manokaran & Ors., AIR 2007 S.C. 1450, their Lordships of the Supreme Court considered the provisions of Sections 437, 438 and 439 of the Cr.P.C.. The relevant observations made in paragraph 6 of the judgment read as under:-
"6. The facility which Section 438 of the Code gives is generally referred to as `anticipatory bail'. This expression which was used by the Law Commission in its 41st Report is neither used in the section nor in its marginal note. But the expression `anticipatory bail' is a convenient mode of indication that it is possible to apply for bail in anticipation of arrest. Any order of bail can be effective only from the time of arrest of the Crl.Misc.Petition No. M-21610 of 2009 -15- ....
accused. Wharton's Law Lexicon explains `bail' as `to set at liberty a person arrested or imprisoned, on security being taken for his appearance'. Thus bail is basically release from restraint, more particularly the custody of Police. The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is, therefor,e effective at the very moment of arrest. [ See Gur Baksh Singh v. State of Punjab, 1980(2) SCC 565]. ............. It is well-known that bail is ordinarily manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest, a person shall be released on bail. Manifestly there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. The power exercisable under Section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under Section 438. The power being of an important nature it is entrusted only to the higher echelons of judicial forums, i.e., the Court of Session or the High Court. It is the power exercisable Crl.Misc.Petition No. M-21610 of 2009 -16- ....
in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by Section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail."
If the facts of the present case are to be seen and juxtaposed against the principles of law envisaged in the above mentioned cases, then, I am afraid, the grievance of the petitioner does not even remotely come near the parameters suggested in the aforementioned principles. The petitioner has remained elusive all throughout the investigation which was conducted by the police. The facts reveal a web of deceit in which not only the complainant, but presumably the other persons have also been defrauded. It is essential that such persons be subjected to intense interrogation to unravel the truth and the extent of fraud.
Granting of such a concession to a person would amount to negating and thwarting the enhancement of cause of criminal justice.
Another aspect which weighs in the mind of the Court is that the petitioner has been successfully evasive till now. The Public Prosecutor has placed on record certain material to show that the intensive efforts are being made to track down the petitioner, but without any success. He continues to be elusive so much so, that he has not even filed an affidavit in support of his petition which is now supported by the affidavit of his wife.
The Court, therefore, considers this to be an additional factor to Crl.Misc.Petition No. M-21610 of 2009 -17- ....
be taken into account while declining the prayer of the petitioner as his conduct is also the anachronic to the proclamation of innocence and holiness made by him.
Accordingly, the prayer of the petitioner is declined and the instant petition is dismissed.
September 17,2009 ( Mahesh Grover ) "SCM" Judge