Delhi District Court
State vs . Suresh Kumar & Ors. on 9 February, 2009
IN THE COURT OF SH. DIG VINAY SINGH, LD. ACMM03 (EOW) ROHINI COURTS,
DELHI
STATE VS. SURESH KUMAR & Ors.
FIR NO. 550/08
P.S: Mehrauli (EOW)
U/s 420/448/467/468/471/120B IPC
09/02/2009
This file is taken up on a bail application of accused Suresh. This application with file
was taken up on 6/2/09 and 7/2/09 also but since medical report was not received from
GB Pant Hospital and concerned jail superintendent therefore, it was adjourned for today.
Present : Sh. M. S. Khan and Sh. Amarnath counsel for accused/applicant Suresh.
APP for the State.
Medical report from GB Pant hospital as well as Jail Superintendent has been received. The
bail application is preferred on medical grounds as well as on merits of the case.
1.It is claimed by the counsel for accused that even as per case of prosecution, this accused was not involved in conspiracy from beginning i.e when the property was first allegedly transferred by one Ranbir Singh in favour of Samunder Singh on the basis of GPA and agreement to sell in favour of Ranvir dated 29/6/99. It is claimed that the accused/applicant Suresh was only a neighbour of main accused Jagdish Mann who was also arrested in this case and who expired in custody because of Brain Hemorrhage. It is claimed that accused Suresh has been used by accused Bail Order in State Vs. Suresh Kr & ors FIR no. 550/08 PS Mehrauli (EOW) dtd .. 9/2/09 Pg 1 of 10 Jagdish Mann. On medical grounds, it is claimed that report has been received from GB Pant hospital that 3 arteries of the applicant are blocked with a blockage of 70%, 80% and 30% respectively and he has been advised PTC and Stenting. Even GB Pant hospital has given an estimate of Rs.1.1/ lakh for conducting an operation.
2. Ld. APP for the State opposing bail application of the accused on merits as well as on medical grounds relied upon 1994 Cr. L. J NOC 191 Delhi where in a case of recovery of Heroine from a foreigner accused, keeping in view the gravity of offence and, likelihood of jumping of bail, Hon'ble High Court directed that medical aid be given to the accused at the Hospital of choice of accused in custody at cost of accused. The said case is distinguishable since the accused was foreigner and also the case was much much serious under Narcotics and Psychotropic substances where even punishment of death is provided.
3. Brief facts of the case are that two different FIRs were registered under no. 487/08 and 550/08 in Police Station Mehrauli. The allegations are that there are two pieces of land both measuring one bigah two bisvah each in village Mehrauli. These two properties were owned by one Pankaj Goel and Atul Ahluwalia respectively. Pankaj Goel is complainant in FIR no. 487 and Atul Ahluwalia is complainant in the present FIR no. 550. Atul Ahlwalia claims that he purchased this property in the year 1991 and since then he was in possession of this property. But sometime prior to registration of the present FIR on 4/11/08 he came to know that somebody has trespassed the property. When he came to see his property, he found that boundary wall has been raised on the property and there was one guard on the property who did not allow the complainant to go inside.
4. During investigation of the two FIRs, it was learnt that one Ranbir Singh son Bail Order in State Vs. Suresh Kr & ors FIR no. 550/08 PS Mehrauli (EOW) dtd .. 9/2/09 Pg 2 of 10 of Ishwar on the basis of forged GPA and agreement to sell dated 29/6/99, which are only notarized documents, sold the two properties including the property of the present case to one Samunder Singh. During investigation the said GPA and agreement to sell dated 29/6/99 purportedly executed by Atul Ahluwalia and Pankaj Goel in favour of Ranvir have not been recovered. However photocopy of the same was recovered and is on record. Thereafter this property was sold in favour of Samundar Singh on 17/4/06 vide registered GPA etc. The documents in favour of Samundar Singh have been recovered. It is further the case of investigating agency that Samundar Singh sold one out of these two pieces of land to accused Jagdish Mann vide registered Sale Deed dated 8/6/06 and the second piece of land was sold to present applicant Suresh vide registered documents dated 6/11/08. These two last mentioned documents of sale in favour of Jagdish Mann and Suresh are also recovered.
5. Thus the case of prosecution is that the two original owners Pankaj Goel and Atul Ahluwalia never sold the properties in question to Ranbir Singh nor executed any GPA but Ranbir Singh on the basis of those forged documents sold it to Samundar Singh and Samundar Singh sold it to Jagdish Mann and Suresh. As per case of prosecution it was all done in conspiracy by all accused including the present accused and all these transactions were sham transactions only. Possession of the properties admittedly is with the two original owners.
6. It is an admitted case of prosecution that Ranbir Singh was an exemployee of Jagdish Mann and Samundar Singh was an employee of Jagdish Mann when allegedly the forgery took place.
7. Perusal of the chargesheet in the present FIR no. 550/08 reveals that during Bail Order in State Vs. Suresh Kr & ors FIR no. 550/08 PS Mehrauli (EOW) dtd .. 9/2/09 Pg 3 of 10 investigation it has come that it was the main accused Jagdish Mann who was behind this entire forgery, trespass, cheating or attempt to cheat. It appears from the perusal of chargesheet that Jagdish Mann used Ranbir Singh, Samundar Singh and Suresh for acquiring titleship on the two properties. No doubt that Suresh has been shown as ultimate purchaser of one piece of land and that Suresh issued one cheque no. 786991 dated 22/10/08 for Rs.7,40,000/ drawn on Andhra Bank, Vasant Kunj, New Delhi in favour of Samundar Singh towards part payment of consideration of sale. In the account of Suresh, there was never sufficient funds to honour this cheque. The account was opened by him on 1/8/08 with a petty sum of Rs.1000/ and when this cheque was dishonoured there was a balance of Rs.930/ only in the account of Suresh. Suresh claims to have purchased this property for a total consideration of Rs.12.15/ lakhs and it was claimed that he paid Rs.4.75/ lakhs in cash besides the dishonoured cheque as mentioned above. From the account statement of this accused, it is clear that he never had this much amount to pay the consideration.
8. Anyhow, perusal of chargesheet reveals that it cannot be ruled out that Suresh was used by Jagdish Mann in order to acquire title on the two properties. It has come on record that for execution of these documents in favour of Suresh, he was paid a sum of Rs.30,000/ only. Suresh was known to Jagdish Mann. The second piece of land was got transferred by Jagdish Mann in his own name. This fact also gains support from the fact that Ranbir Singh was also an exemployee of Jagdish Mann and Samunder was employee of him. Although, active participation of Suresh in this conspiracy cannot be ruled out from the very fact that the documents were registered in his favour and he did not pay any consideration. But it may well be a case that he was not aware of the forgery done in documents executed in favour of Ranvir. It Bail Order in State Vs. Suresh Kr & ors FIR no. 550/08 PS Mehrauli (EOW) dtd .. 9/2/09 Pg 4 of 10 may well be a case that he joined the conspiracy in later period of time.
9. Be that as it may, in my considered view, in the above facts especially when chargesheet has been filed, investigation is concluded qua the accused and evidence is more or less documentary in nature which is already seized and it rules out the possibility of tampering, discretion of bail ought to be exercised in favour of applicant Suresh. More particularly, in view of his medical reports which reveals blockage of three arteries to the extent of 70%, 80% and 30%. Accused is a patient of Coronary Artery Disease with hypertension. He is presently lying admitted in GB Pant and the hospital has raised an estimate of Rs. 1.1/ lakh for operation of accused.
10. Law regarding consideration at the stage of grant or refusal of bail are well settled now. In the case of Anil Mahajan v. Commissioner of Customs, (Delhi) 2000(3) R.C.R.(Criminal) 242 : 2000 Cri.L.J. 2094 hon,ble DELHI HIGH COURT after referring to the cases of : Gurcharan Singh and others v. State (Delhi Administration), AIR 1978 SC 179. : Gurbaksh Singh Sibbia etc. v. The State of Punjab, AIR 1980 SC 1632. : Runu Ghosh v. State (CBI), 1996 JCC 710: State of Gujarat v. Mohanlal Jitamalji Porwal and another, AIR 1987 SCC 1321 :Balakrishna Chhaganlal Soni v. State of West Bengal, AIR 1974 SC 120: Sanjay Verma v. State, 1991 JCC 273:
Rajinder Singh v. Union of India, 1992 JCC 455: The State v. Captain Jagjit Singh, AIR 1962 Supreme Court 253: Gudikanti Narasimhulu and others v. Public Prosecutor, AIR 1978 Supreme Court 429 Miss Harsh Sawhney v. Union Territory, AIR 1978 SCC 1016 :
Mohan Singh v. Union Territory, Chandigarh, AIR 1978 SC 1095: Nagendra v. King Emperor, AIR 1924 Calcutta 476: K.N. Joglekar v. Emperor, AIR 1931 Allahabad 504: Emperor v. H.L. Hutchinson, AIR 1931 Allahabad 356: State v. Jaspal Singh Gill, AIR Bail Order in State Vs. Suresh Kr & ors FIR no. 550/08 PS Mehrauli (EOW) dtd .. 9/2/09 Pg 5 of 10 1984 SC 1503, the legal position emerging was summarized as follows in para 14:
"(a) Personal liberty is too precious a value of our Constitutional System recognized under Article 21 that the crucial power to negate it is a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community.
Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution.
(b) As a presumably innocent person the accused person is entitled to freedom and every opportunity to look after his own case and to establish his innocence. A man on bail has a better chance to prepare and present his case than one remanded in custody. An accused person who enjoys freedom is in a much better position to look after his case and properly defend himself than if he were in custody. Hence grant of bail is the rule and refusal is the exception.
(c) The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment.
(d) Bail is not to be withheld as a punishment. Even assuming that the accused is prima facie guilty of a grave offence, bail cannot be refused in an indirect process of punishing the accused person before he is convicted.
(e) Judges have to consider applications for bail keeping passions and prejudices out of their decisions.
(f) In which case bail should be granted and in which case it should be refused is a matter of discretion subject only to be restriction contained in Section 437(1) of the Criminal Procedure Code. But the said discretion should be exercised judiciously. Bail Order in State Vs. Suresh Kr & ors FIR no. 550/08 PS Mehrauli (EOW) dtd .. 9/2/09 Pg 6 of 10
(g) The powers of the Court of Session or the High Court to grant bail under Section 439(1) of Criminal Procedure Code are very wide and unrestricted. The restrictions mentioned in Section 437(1) do not apply to the special powers of the High Court or the Court of Session to grant bail under Section 439(1). Unlike under Section 437(1), there is no ban imposed under Section 439(1) against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life . However while considering an application for bail under Section 439(1), the High Court or the Court of Session will have to exercise its judicial discretion also bearing in mind, among other things, the rationale behind the ban imposed under Section 437(1) against granting bail to persons accused of offences punishable with death or imprisonment for life.
(h) There is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstances cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.
(i) While exercising the discretion to grant or refuse bail the Court will have to take into account various considerations like the nature and seriousness of the offence; the circumstances in which the offence was committed; the character of the evidence; the circumstances which are peculiar to the accused; a reasonable apprehension of witnesses being influenced and evidence being tampered with; the larger interest of the public or the State; the position and status of the accused with reference to the victim and the witness; the likelihood of the accused fleeing from justice; the likelihood of the accused repeating the offence; the Bail Order in State Vs. Suresh Kr & ors FIR no. 550/08 PS Mehrauli (EOW) dtd .. 9/2/09 Pg 7 of 10 history of the case as well as the stage of investigation etc. In view of so many variable factors the considerations which should weigh with the Court cannot be exhaustively set out. However, the two paramount considerations are (i) the likelihood of the accused fleeing from justice, and (ii) the likelihood of the accused tampering with prosecution evidence. These two considerations in fact relate to ensuring a fair trial of the case in a Court of justice and hence it is essential that due and proper weight should be bestowed on these two factors.
(j) While exercising the power under Section 437 of the Criminal Procedure Code in cases involving nonbailable offences except cases relating to offences punishable with death or imprisonment for life , judicial discretion would always be exercised by the Court in favour of granting bail subject to subsection (3) of Section 437 with regard to imposition of conditions, if necessary. Unless exceptional circumstances are brought to the notice of the Court which might defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life.
(k) If investigation has not been completed and if the release of the accused on bail is likely to hamper the investigation, bail can be refused to ensure a proper and fair investigation.
(l) If there are sufficient reasons to have a reasonable apprehension that the accused will flee from justice or will tamper with prosecution evidence he can be released on bail in order to ensure a fair trial of the case.
(m) The Court may refuse bail if there are sufficient reasons to apprehend that the accused will repeat a serious offence if he is released on bail.
(n) For the purpose of granting or refusing bail there is no classification of the offences Bail Order in State Vs. Suresh Kr & ors FIR no. 550/08 PS Mehrauli (EOW) dtd .. 9/2/09 Pg 8 of 10 except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offence punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offences involved belong to a particular category when the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular classes bail may be granted but not in others. Not only in the case of economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. Hence only the considerations which should normally weigh with the Court in the case of other nonbailable offences should apply in the case of economics offences also. It cannot be said that bail should invariably be refused in cases involving serious economic offences.
(o) Law does not authorize or permit any discrimination between a foreign National and an Indian National in the matter of granting bail. What is permissible is that, considering the facts and circumstances of each case, the Court can impose different conditions which are necessary to ensure that the accused will be available for facing trial. It cannot be said that an accused will not be granted bail because he is a foreign national.
11. In the present case, admittedly this is first bail application of the accused after filing of chargesheet. I have already mentioned that investigation is already concluded, evidence being documentary there is no reasonable apprehension of tampering with evidence. There is no reasonable apprehension of accused fleeing from justice. Presence of accused can be secured by way of more than one sureties with sound financial condition. The accused is in custody for more than two months Bail Order in State Vs. Suresh Kr & ors FIR no. 550/08 PS Mehrauli (EOW) dtd .. 9/2/09 Pg 9 of 10 now. There is no previous involvement of the accused in any offence.
12. In view of above discussion, accused Suresh is admitted to bail upon furnishing personal/surety bond in the sum of Rs.30,000/ with two sureties each in the like amount. This order is subject to the condition that the accused shall not try to influence any witness, shall not try to tamper with evidence in any manner. Needless to say that the discussion in this bail order shall not affect the merits of the case at any stage at all and shall not be construed as an expression of opinion on merits of the case. Application is accordingly disposed off. File be put up on date already fixed i.e 11/2/09.
(DIG VINAY SINGH) ACMM03(EOW) ROHINI / DELHI / 09/02/09 Bail Order in State Vs. Suresh Kr & ors FIR no. 550/08 PS Mehrauli (EOW) dtd .. 9/2/09 Pg 10 of 10