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1. IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.
Misc not M-11604 of 2013 (O & M) Date of decision: May 29, 2013.
Yashpal Aggarwal and others ....Petitioners Versus State of Punjab ....Respondent CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH Present: Mr.Jasjit Singh Bedi, Advocate, for the petitioneRs.Mr.A.S.Grewal, Addl.A.G.
Punjab.
PARAMJEET SINGH, J.
(ORAL) Present petition has been filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the petitioners in a case arising out of FIR No.23 dated 9.11.2012, registered at Police Station Vigilance Bureau, Patiala, under Sections 409, 420, 467, 468, 471, 120-B of the Indian Penal Code read with Sections 13 (1) (d) and 13 (2) of Prevention of Corruption Act, 1988.
The contents of the FIR in question are reproduced as under:- “The Government had directed the Commissioner, Patiala Division, Patiala to hold an inquiry with regard to the sale deed in respect of Kothi No.9, situated Rambagh, Rajwaha Road, Patiala duly registered with the office of Sub Registrar, Crl.
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2. Patiala, vide No.15901 and 15902 dated 14.10.2011, who in his inquiry report raised the suspicious finger towards the role of the then Patwari posted at Patiala, Kanungo, Naib Tehsildar, Deputy Commissioner and former Commissioner, Patiala Division, Patiala and had written to the Government for getting conducted the inquiry from Vigilance Bureau for favour of thorough probe whereupon the vigilance inquiry no.1 dated 20.6.12 was registered against District Patiala's officers and officials of Revenue Department and otheRs.Consequent upon inquiry, it has been found that the owner of KhaSr.No.104 was Kanwar Brijinder Singh, out of the said area, some part thereof was sold by Kanwar Brijinder Singh to Government of India (Department of Post & Telegraph) and to some other private persons.
In the year 1958, after the death of Kanwar Brijinder Singh, the remaining property pertaining to KhaSr.No.104 was transferred in the name of his son Kiraninder Singh and his daughters and out of the said khasra, Kiraninder Singh has sold the land time to time to various private persons.
not the land (5950 square yards) regarding which Kiraninder Singh had finalized a deal/agreement to sell with N.P.Singh, Yagpal Aggarwal and Devinder Singh Sandhu, was not of Kiraninder Singh rather the said area pertains to KhaSr.No.103, which is government land and the said area was falling therein.
From the demarcation done on 3.8.12, it has become clear that Kiraninder Singh has no vacant land in khaSr.No.104.
Thereafter, Kiraninder Singh with regard to sell the said property executed the General Power of Attorney and Special Power of Attorney in favour of Ravdeep Singh and Jaswant Singh, who were the persons of the vendee but the land for sale being public land and due to presence of the government office therein; the registry of the said land could not be registered.
On 14.2.11 Kiraninder Singh Crl.
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3. got the power of attorneys cancelled and the concerned were intimated.
Shri Deepinder Singh, the then Deputy Commissioner while complying with the orders passed by Hon'ble Punjab & Haryana High Court, having passed the self contained order dated 22.3.11 observing the land in dispute a part of KhaSr.No.103 dismissed the claim of the vendee and refused to register their deeds.
Jaspal Aggarwal etc.filed the revision petition in the court of Commissioner, Patiala Division, Patiala against the orders of the Deputy Commissioner.
The Commissioner, Patiala vide orders dated 13.4.2011 stayed the aforesaid orders dated 22.3.2011 of the Deputy Commissioner, Patiala.
The vendee/GPA/SPA knowing well that the said land has been declared as public land vide orders dated 22.3.2011 passed by the Deputy Commissioner, Patiala and the appeal against the said orders was pending in the Court of the Commissioner, Patiala Division, Patiala.
The ownership of the land is in dispute and they had sent the notices to Kiraninder Singh not to receive the payments of the cheques.
Despite all of that, they having got registered the sale-deeds in their favour have usurped the public land.
As and endeavour to get the sale-deeds registered, earlier they had submitted the deeds before Amardeep Singh Thinda, the then Tehsildar, Patiala but he refused to register the deeds.
Immediately on Vikas Garg, IAS being posted as Deputy Commissioner, Patiala, the vendees started making efforts to get the sale-deeds registered.
In the same series, on 07.10.2011, they submitted the sale-deeds of the aforeasid land before Naib Tehsildar Gurinder Singh Walia, who on 12.10.11 having prepared an official note regarding registration of the deed had sent the same to the Deputy Commissioner, Patiala.
In this regard, Jasbir Singh, District Revenue Officer, Patiala having met Shri Vikas Garg, Deputy Commissioner, Patiala Crl.
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4. issued a letter dated 13.10.11 to Naib Tehsildar, Patiala/Jt.
Sub Registrar, Patiala with regard to registration of the sale deeds.
Naib Tehsildar, Shri Gurinder Singh Walia on 14.10.11 registered the deeds vide No.15901 and 15902 and on 12.11.2011, the Naib Tehsildar with the collusion of Area Kanungo and the Patwari sanctioned the mutation.
As such, the accused with their connivance under a conspiracy misappropriated the public land measuring 5950 square yards (market value worth ` 200-250 crores).By doing so, Sarv Shree N.P.Singh, Yaspal Aggarwal, Davinder Singh Sandhu, Ravdeep Singh, Jaswant Singh, Vikas Garg, IAS, Former Deputy Commissioner, Patiala, Rajbir Singh, Ex.D.R.O.Patiala, Gurinder Singh Walia, Naib Tehsildar, Patiala, Pritpal Singh, Kanungo and Suresh Kumar Patwari, Revenue Area, Patiala have committed an offence punishable under Sections 409, 420, 467, 468, 471, 120-B IPC and 13(1)(d) r.w.13(2) P.C.Act 1988.
Hence, the writing is being sent through Sr.Constable Mandeep Singh 1/17101RB to P.S.V.B.Patiala Range, Patiala for registration of case F.I.R against aforesaid accused under the aforesaid offence.”
I have heard learned counsel for the parties.
Learned counsel for the petitioners contended that the petitioners are bona fide purchasers for valuable consideration of ` 6.25 crores and have stepped into the shoes of seller-Kiraninder Singh.
No possession has been transferred to them.
The price of the property in question has been grossly inflated.
The original owner has not been impleaded as accused in the present case.
In fact, the petitioners have been defrauded and cheated in the present sale transaction.
The learned counsel further contended that area of the Crl.
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5. Government which was Transit Residence of the then Chief Justice consisted of KhaSr.Nos.101 to 103 and the Government has no relation with khaSr.no.104.
Since Kiraninder Singh, the alleged original owner has not been arrayed as an accused, the petitioners who though have stepped into shoes of seller as bona fide purchasers for valuable consideration, cannot be prosecuted.
The learned counsel made reference to Annexure P-10 (Colly) to show that at one stage, the Deputy Commissioner had issued some letters to vacate the premises in pursuance to the notice sent by original owner-Kiraninder Singh through his counsel.
The learned counsel further contended that the full and final consideration has been paid.
The learned counsel further contended that the petitioners are behind bars for more than two months.
In support of his contention, the learned counsel relied upon Dipak Shubhashchandra Mehta versus C.B.I.and another, 2012(1) RCR (Criminal) 870 (SC).Sanjay Chandra versus CBI, 2011(4) RCR (Criminal) 898 (SC).Rajinder Kumar versus State of Haryana, 2012(1) RCR (Criminal) 481 (P&H) and Desh Raj versus CBI, 2013(1) RCR (Criminal) 346 (P&H).The said contentions of learned counsel for the petitioners have been vehemently opposed by the learned State counsel.
The learned State counsel vehemently contended that the sales are fraudulent sales.
No vacant land was in existence at the spot.
Even the reference of Kothi No.9 in the order of Raj Parmukh is with regard to Kothi No.9 situated in the Baradari Garden, Patiala.
Only boundaries have been mentioned, but no khaSr.number has been given therein.
The petitioners are not the bona fide purchaseRs.They have given mis-description in the sale deeds dated 14.10.2011 by mentioning khaSr.Crl.
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6. no.104 situated in the Ram Bagh Area, Rajbaha Road, Patiala, whereas, in fact, Kothi No.9 allotted to original allottee was situated in Bardari Gardens.
Ram Bag Area and Baradari Gardens are situated at different places.
I have considered the rival contentions of learned counsel for the parties and perused the record.
The latest judgment cited by the learned counsel for the petitioners is of the Hon'ble Supreme Court in Dipak Shubhashchandra Mehta (supra) wherein the entire law regarding grant of regular bail has been discussed.
The Hon'ble Supreme Court in para No.18 in Dipak Shubhashchandra Mehta's case (supra) has held as under: - “18.
The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course.
Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence.
The Court granting bail has to consider, among other circumstances, the factors such as a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and; c) prima facie satisfaction of the court in support of the charge.
In addition to the same, the Court while considering a petition for grant of bail in a non-bailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted.
Considering the present scenario and there is no possibility of commencement of trial in the near future and also Crl.
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7. of the fact that the appellant is in custody from 31.03.2010, except the period of interim bail, i.e.from 15.09.2011 to 30.11.2011, we hold that it is not a fit case to fix any outer limit taking note of the materials collected by the prosecution.
This Court has repeatedly held that when the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated.
As posed in the Sanjay Chandra’s case (supra) we are also asking the same question i.e.whether the speedy trial is possible in the present case for the reasons mentioned above.”
Further, the Hon'ble Supreme Court in the case of Sanjay Chandra (supra) has held as under: - “15.
In the instant case, as we have already noticed that the “pointing finger of accusation”.
against the appellants is ‘the seriousness of the charge’.
The offences alleged are economic offences which has resulted in loss to the State exchequer.
Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation.
In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act.
Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather “recalibration of the scales of justice.”
The provisions of Cr.P.C.confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general.
In our view, Crl.
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8. the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system.
It transcends respect for the requirement that a man shall be considered innocent until he is found guilty.
If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.
This Court, in Kalyan Chandra Sarkar versus Rajesh Ranjan- (2005) 2 SCC 42.observed that “under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law.
Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law.
But even persons accused of non-bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so.”
In Sanjay Chandra's case (supra) also the Hon'ble Supreme Court has considered the entire law on the subject.
I am conscious of the fact that serious allegations of connivance and misuse of the public money have been levelled against the petitioners and other accused.
There are also allegations of dishonest, cheating and connivance with the revenue officials.
As such, they have been involved in a case under various sections of the Indian Penal Code and Prevention of Corruption Act, 1988.
However, if the petitioners are allowed to be kept in judicial custody for indefinite period, then Article 21 of the Constitution will come into play and Crl.
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9. the liberty of the petitioners will be violated.
It is the fundamental right of every person in judicial custody for speedy trial.
There are no allegations against the petitioners in respect of tampering with the evidence.
The entire case is based on documentary evidence, this is not the case based on the oral testimony of the individual.
No doubt the allegations against the petitioners are serious in terms of huge loss caused to the State exchequer, but the fact remains that there are only the documents which have been executed, no possession has been delivered to the petitioneRs.that by itself should not deter this Court from enlarging the accused on bail specially when they are already behind bars for sufficiently long time.
I do not see any good reason to continue the judicial custody of the petitioners that too after completion of investigation and submission of charge-sheets.
The conclusion of the trial will take considerable long time and their presence in custody may not be necessary for further interrogation.
In the facts and circumstances of the present case, it is to be seen whether keeping the petitioners in judicial custody is justified specially when challan has been presented and they are in judicial custody.
It is not necessary to go into the details of various other issues canvassed by the learned counsel for the parties and the case laws relied upon by the learned counsel for the petitioners in support of his arguments.
Without expressing any opinion on the merits of the case, this Court deems it fit that the petitioners should be admitted to bail.
In the result, petition is allowed.
Petitioners be admitted to bail on their executing bail bonds with solvent sureties each in the sum of ` 10.00 lacs Crl.
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10. to the satisfaction of trial Court/Duty Magistrate, Patiala on the following conditions in addition to any other condition that may be imposed by the trial Court/Duty Magistrate: a) The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the Court or to any other authority.
b) They shall remain present before the Court on the dates fixed for hearing of the case.
If they want to remain absent, then they shall take prior permission of the court and in case of unavoidable circumstances for remaining absent, they shall immediately give intimation to the appropriate court and also to the State Vigilance Bureau and request that they may be permitted to be present through the counsel.
c) They will not dispute their identity as the accused in the case.
d) They shall surrender their passport, if any (if not already surrendered).and in case, they are not a holder of the same, they shall swear to an affidavit.
If they have already surrendered before the trial Court, that fact should also be supported by an affidavit.
Liberty is granted to the State Vigilance Bureau to make an appropriate application for modification/recalling this order, if for any reason, the petitioners violate any of the conditions imposed by this Court/trial Court.
[ Paramjeet Singh ].May 29, 2013 Judge parveen kumar