Inder Singh Guram vs U.T.Chandigarh

M.L. Singhal, J.

That is a Crl. Misc. petition filed under Section 482 read with Section 379 of the Code of Criminal Procedure by petitioner Dr. Inder Singh Guram whereby he has prayed for the setting aside of the order dated 26.8.96 of Additional Sessions Judge, Chandigarh. He has further prayed for a direction for investigation of case FIR No. 81 dated 8.8.96 registered at P.S. North, U.T. Chandigarh by some independent investigating agency.

Now the facts in brief :

The petitioner was practising as a Doctor in Ganga Nagar (Rajasthan). His son had established business in Chandigarh. In the year 1995, he also shifted to Chandigarh and started putting up with his son. Since his family was putting up in rented accommodation he decided to purchase house at Chandigarh. He came in contact with respondent No. 2 who held himself out to be the absolute owner of house No. 2336, Sector 23C, Chandigarh free from all encumbrances. It was 8 marla house. He agreed to purchase 8 marla house from respondent No. 2 for a sum of Rs. 15,21,000/. On 10.5.95, an agreement to sell was executed by respondent No. 2 in his favour and received a sum of Rs. 3 lacs as earnest money. It was stipulated in the agreement that the sale deed would be got registered by 8.11.95 and respondent No. 2 would hand over vacant possession of the house on the execution of the sale deed. Annexure P1 is the copy of the agreement to sell executed by respondent No. 2 in his favour.

Thereafter, the petitioner discovered that earlier on 26.11.91, respondent No. 2 had entered into an agreement to sell respecting the same very house with one Dev Raj Garg, a resident of house No. 2364, Sector 23C, Chandigarh and had obtained a sum of Rs. 2,25,000/ against the total sale consideration of Rs. 5 lacs. Petitioner also learned that Dev Raj Garg had filed suit for possession through specific performance of the said agreement to sell against respondent No. 2 and had obtained an injunction on 18.8.93 restraining respondent No. 2 from alienating that house. Annexure P2 is the copy of the plaint of suit for possession through specific performance titled Dev Raj Garg Versus Mahesh Chander Sharma s/o Munna Dutt Sharma. Annexure P3 is the copy of the order passed by Additional Sessions Judge, Chandigarh granting anticipatory bail to Mahesh Chander Sharma and one Radhe Shyam. When the petitioner came to know the aforesaid facts, he realised that he had been cheated of a sum of Rs. 3 lacs by respondent No. 2. He moved application to the Senior Superintendent of Police, Chandigarh dated 2.11.95 detailing the aforesaid facts and requested for the registration of case against respondents 2 and 3. Respondent No. 2 is Lecturer in Sanskrit in Government College for Boys, Chandigarh while the petitioner is an outsider who had just come to Chandigarh. Petitioner had put up stiff battle to secure the registration of case against respondents 2 and 3. He had to meet Senior Superintendent of Police, Inspector General of Police and then Advisor to the Administration, Chandigarh and it was on the intervention of the Administrator, Chandigarh that case FIR No. 81 dated 8.8.96 was registered against respondents 2 and 3 at P.S. North, U.T. Chandigarh under Section 420 of the Indian Penal Code. Annexure P4 is the copy of the FIR. He had to struggle for 9 months for securing the registration of a case. Respondents No. 2, 3 were allowed anticipatory bail vide order dated 26.8.96 passed by Additional Sessions, Judge. Annexure P5 is the copy of the bail application moved by respondent No. 2 in the court. Annexure P6 is the copy of bail application moved by respondent No. 3 in court. In these bail applications, respondents 2 and 3 accused each other of cheating the petitioner. Respondent No. 2 alleged the payment of Rs. 1 lac only to himself and the retention of Rs. 1 lac by respondent No. 3 while respondent No. 3 was alleging that respondent No. 2 had received the entire amount of Rs. 3 lacs from the petitioner. In the FIR respondent 2 and 3 have been tarnished with the same brush and they both have been accused of forgery and cheating. Additional Sessions Judge went off the track while granting anticipatory that the bone of contention between the parties appears to be of civil nature. Respondent No. 2 cheated him of a sum of Rs. 3 lacs when he knew that the house which he was agreeing to sell to the petitioner was already the subject matter of sale to one Dev Raj Garg and further there was an injunction restraining him from alienating the house. Petitioner apprehends that FIR No. 81 dated 8.8.96 (ibid) will not be investigated impartially and fairly because respondent No. 2 is an influential man being Lecturer in Govt. College for Boys, Chandigarh for the last more than 20 years. His apprehension got stronger because he was able to secure the registration of case after a lapse of 9 months and that too with the intervention of the Administrator, U.T. Chandigarh. His visits to SSP and IGP, Chandigarh have not borne any fruit.

Respondent No. 2 contested this petition urging that he never agreed to sell his house to the petitioner. No such agreement, as has been set up by the petitioner, was entered into between him and the petitioner. He did not receive any money from the petitioner, what to talk of Rs. 3 lacs. He never agreed to execute the sale deed in favour of the petitioner or get it registered. He never entered into any agreement to sell with Dev Raj Garg nor did he ever obtain any money from him. Dev Raj Garg had forged agreement to sell alleged to have been executed by him. He has filed criminal complaint against Dev Raj Garg in the court of Judicial Magistrate Ist Class, Chandigarh. He has been cheated by the petitioner and respondent No. 3 to enter into agreement to sell with him which is apparent from the memo of understanding dated 4.5.95 entered into between respondent No. 2 and 3. Respondent No. 2 has been cheated by respondent No. 3 who is property dealer. Respondent No. 2 never dealt with the petitioner regarding the alleged agreement to sell. Respondent No. 2 had told everything to respondent No. 3 and he did not withhold anything from respondent No. 3. Petitioner is a stranger qua him and respondent No. 3 and if the petitioner has any grouse, he has against respondent No. 3. He had received only Rs. 1 lac from respondent No. 3 with whom he had agreed to sell the house in question. He never received Rs. 3 lacs. Instead respondent No. 3 by deceit and fraud got signature of respondent No. 2 on the alleged agreement to sell without paying Rs. 3 lacs to him and respondent No. 3 got the signatures of the petitioner forged on the alleged agreement to sell. Amount of Rs. 2 lacs was retained by respondent No. 3. He was rightly granted anticipatory bail by the court on the premise that the dispute involved was of civil nature. He has not misused the concession of bail. He has joined investigation. He is the victim of cheating due to collusion of respondent No. 3 with the petitioner. His signatures were obtained on the alleged agreement to sell and also on the alleged receipt by respondent No. 3 by fraud.

Respondent No. 3 contested this petition urging that he did not cheat either the petitioner or respondent No. 2. He is property dealer and his conduct was that of a property dealer. He brought the petitioner and respondent No. 2 together fact to face. Petitioner and respondent No. 3 entered into transaction of sale and purchase after verifying the facts fully. He charged commission only. He was rightly allowed anticipatory bail by the court on the premise that the dispute between the parties was of civil nature. He was not aware of the suit filed by Dev Raj Garg for possession through specific performance against respondent No. 2 in respect of the same house on the basis of some earlier agreement.

I have heard learned counsel for the parties and have gone through the record.

According to the petitioner, vide agreement copy Annexure P1 dated 10.5.95, respondent No. 2 agreed to sell house No. 2336, Sector 23C, Chandigarh belonging to him for a consideration of Rs. 15,21,000/. A sum of Rs. 3 lacs was received by him from the petitioner vide receipt which was attested by Baljit Singh, Jitender Soni and two others. According to the petitioner, the said house was the subject matter of sale by respondent No. 2 to one Dev Raj Garg vide agreement to sell dated 26.11.91 for a sum of Rs. 5 lacs. Dev Raj Garg had filed suit for possession through specific performance against respondent No. 2 in the year 1993 at Chandigarh. According to Dev Raj Garg a sum of Rs. 1,25,000/ through cheque bearing No. 0285257 dated 26.11.91 drawn on Punjab State Cooperative Bank Limited, Chandigarh towards earnest money was paid to respondent No. 2. Apart from that amount, respondent No. 2 had received various amounts all totalling a sum of Rs. 1,43,980/. He had received Rs. 2,68,980/ by way of earnest money upto 23.3.93 out of the settled sale consideration of Rs. 5 lacs, and these payments had been acknowledged by respondent No. 2 on that agreement. A sum of Rs. 90,000/ was due from respondent No. 2 to the Education Department in lieu of loan. That amount was also to be paid by him. It was submitted by the learned counsel for the petitioner that respondent No. 2 ought to have known that he was cheating petitioner when he was executing agreement to sell in his favour and receiving a sum of Rs. 3 lacs when he knew that the said house was already subject matter of sale to Dev Raj Garg from whom he had received a sum of Rs. 2,68,980/. Case FIR No. 81 of 1996 under Section 420 IPC as when registered at PS North, U.T. Chandigarh the apprehension of the petitioner is that as this case was registered after strenuous efforts by him and that too through the intervention of the Administrator of U.T. Chandigarh, this case will not be investigated in a fair and impartial manner by the local police and therefore, investigation of this case should be entrusted to some independent investigating agency. Petitioner''s grievance is that respondent No. 3 brought them together face to face. He got this bargain struck between him and respondent No. 2 and respondent No. 3 was privy to the foul play played with him by respondent No. 2 and, therefore, neither respondent No. 2 and nor respondent No. 3. should have been allowed anticipatory bail by Additional Sessions Judge, Chandigarh. In the application for anticipatory bail Annexure P6 respondent No. 3 had pleaded that he only brought M.C. Sharma and Inder Singh together face to face. He got this bargain struck. Payment of earnest money to the tune of Rs. 3 lacs was received by M.C. Sharma.

Additional Sessions Judge, Chandigarh had allowed anticipatory bail to M.C. Sharma and Radhe Shyam vide order Annexure P3 dated 26.8.96. It is one thing to allow anticipatory bail and quite another to cancel the anticipatory bail already allowed. Very cogent grounds are required to be put forth for cancelling the anticipatory bail already allowed. In this case, everything is based on documentary evidence. According to the petitioner himself, respondent No. 2 had received payment from him to the tune of Rs. 3 lacs vide agreement Annexure P1 and contemporaneous receipt. According to him, he had already entered into an agreement to sell that house with Dev Raj Garg and had received payments from him as earnest money. In suit for specific performance filed by Dev Raj Garg, the entire payments are alleged to have been made through cheques. In my opinion, nothing would turn on the proof of those transactions through oral evidence. If anticipatory bail had not been allowed to respondents 2 and 3 and they had been sent in custody, no purpose whatever would have been served so far as the cause of investigation is concerned. In my opinion, the anticipatory bail allowed to respondents 2 and 3 should not be displaced now. It was held by their Lordships of the Hon''ble Supreme Court inAslam Babalal Desai v. State of Maharashtra, 1993(1) RCR 600 that bail once granted can be cancelled where the accused interferes with the course of investigation, attempts to tamper with evidence, threatens the witnesses or indulges in activities which would hamper smooth investigation or there is likelihood of his fleeing to any other country or attempts to make himself scarce by going underground or becoming unavailable to the investigating agency and so on. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, that view should be adopted which view is in consonance with protecting individual''s liberty. It was held by their Lordships of the Hon''ble Supreme Court in The State through the Delhi Administration appellant v. Sanjay Gandhi respondent, AIR 1978 S.C. 961 that "rejection of bail when bail applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a nonbailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by review of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial." Similarly it was held by their Lordships of the Hon''ble Supreme Court in Bhagirathsinh Judeja v. State of Gujarat AIR 1984 SC 372 that very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. Power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case, there is no question of considering other circumstances. Even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.

Faced with this position, learned counsel for the petitioner drew my attention to a single Bench decision of the Delhi High Court reported as Nalla Thamby Sritharan v. Uma Shankar, 1990(3) RCR 593 where it was held that an order granting bail substantially affects the right of the prosecuting authority because it is likely to prejudice the trial of the case itself and the accused, if enlarged on bail, might tamper with prosecution evidence. Revisional court has power to cancel an order of bail which is considered to be unjust, illegal or amounts to gross miscarriage of justice.

In this case, however, to my mind the grant of anticipatory bail by Additional Sessions Judge, Chandigarh to respondent 2 and 3 was not something unjust or uncalled for and therefore, I do not see any reason to cancel the anticipatory bail allowed to the respondents by Additional Session Judge, Chandigarh. If, however, the respondents 2 and 3 are found to be tampering with prosecution evidence, the State may move an application for revoking the anticipatory bail allowed to them by Additional Sessions Judge, Chandigarh. Petitioner can also brief the Public Prosecutor that he should move the court for cancellation of bail if he feels that there is attempt at tampering with prosecution evidence by respondent 2 and 3. Instant is not a case where court should doubt the impartiality, fairplay and integrity of the Chandigarh Police investigating this case. However, I feel that there should be greater assurance provided to the petitioner that this case will be investigated fairly, justly and impartially by the Chandigarh Police. This case will be investigated by an officer not below the rank of Deputy Superintendent of Police to be selected by the Senior Superintendent of Police, Chandigarh. Senior Superintendent of Police, Chandigarh will select that Dy. Supdt. of Police and put him on the investigation of this case who in his opinion has the reputation of being honest, impartial and firm. Investigation done by him shall be supervised by the Senior Supdt. of Police, Chandigarh himself. With aforesaid observations, this Crl. Misc. petition is disposed of.