Raj Singh vs State (Nct Of Delhi) And Anr.
2003 Latest Caselaw 1357 Del

JUDGMENT

S.K. Agarwal, J.

1. This is a petition under Section 482, Cr.P.C. read with Section 439, Cr.P.C. for setting aside the order dated 11.7.2003 cancelling the bail granted by the Court of Additional Sessions Judge, Delhi (for short, 'ASJ') in case FIR No. 338/2002 under Sections 420/467/468/471/120B, IPC, P.S. Bawana (N.W. Distt.), Delhi.

2. Prosecution allegations are that: Smt. Ratni Devi died intestate; the Will dated 14.4.1989 purported to have been executed by Smt. Ratni Devi was forged by petitioner in connivance with the others; on the basis of this forged Will, petitioner got mutated the agricultural land measuring 27 bighas and 2 biswas, situated at village Bawana, Delhi, in the revenue record, in his favor on 19.3.1997. The land in question was acquired by the Government and the petitioner obtained compensation of about Rs. 45.00 lacs towards part of the land measuring about 20 bighas on 23.3.1998. The prosecution case further is that the Will in question has been found to be a forged document by the handwriting experts of Forensic Science Laboratory. They came to this conclusion after comparison of the thumb impression of Smt. Ratni Devi, vis-a-vis her thumb impression available on record of the Primary Co-operative Agricultural Development Bank Ltd., Bahadur Garh, Haryana.

3. On the last date of hearing, learned Counsel for petitioner argued that genuine thumb impression of Smt. Ratni Devi was not taken, as a basis for comparison and sought time to submit, as to in which public record, according to him, genuine thumb impression of Smt. Ratni Devi would be available. Learned Counsel for the petitioner submits that despite efforts petitioner has not been able to find out any genuine thumb impression of Smt. Ratni Devi. Learned Counsel submits that he would argue the matter on the basis of the material already on record. Learned Counsel argued that petitioner was arrested by the Police on 19.1.2003; after interrogation he was sent to judicial custody and was granted bail vide order dated 13.2.2003. On an application moved by the complainant, bail granted to the petitioner was cancelled by order dated 11.7.2003, which is under challenge,

4. Learned Counsel further argued that the complainant raised the issue, regarding grant of compensation and genuineness of the Will, in Civil Writ Petition No. 4560/1998. This writ petition was dismissed by the Division Bench of this Court observing as under:

"That was a suit for cancellation of Will of late Smt. Ratni Devi dated 14.4.1989 and decree for declaration that the plaintiff is entitled for mesne profit against defendant. Learned Judge hearing the suit has dismissed the suit. On preliminary issue, learned Judge after hearing the parties held that the suit is barred by limitation. We are not required to examine the merit or de-merit of the said judgment."

5. It was also held that the copy of the plaint filed by the respondent (complainant) dated 22.4.1998 (Annexure P-9), was not the true copy. Learned Counsel for the petitioner also argued that petitioner filed a detailed affidavit in the said writ petition on 19.3.1999, stating as to whether the compensation of Rs. 45 lakhs received by the petitioner, in respect of the land in dispute, was invested or spent. Copy of the affidavit given, was available to the complainant and the Investigating Officer.

6. Learned Counsel further submits that petitioner is still in possession of 6 bighas of land which belongs to Smt. Ratni Devi. Petitioner undertakes not to sell, transfer, alienate or part with possession the same, in any way, till the outcome of the trial and the petitioner is ready and willing to file an affidavit of undertaking in this regard. Learned Counsel next argued that order dated 11.7.2003, cancelling the bail is against the settled principles of law, and that observations made by learned ASJ while recalling the bail, that statement of Surinder Kumar, Notary Public, by whom the forged Will was allegedly attested and the opinion of handwriting expert of FSL was not brought to his notice earlier, are against the record. It is argued that both these documents were available with the IO and he was present at the time when the bail petition was argued. Thus, it is submitted that the order dated 11.7.2003, cancelling the bail is liable to be set aside.

7. Learned Counsel for the State submits that the impugned order dated 11.7.2003 cancelling the bail is legally valid and fully justified; that the petitioner is guilty of having obtained Rs. 45 lakhs as compensation on the forged Will, and that prima facie, there is material to show that the petitioner forged and fabricated the Will of Smt. Ratni Devi dated 14.3.1989; the FSL report is against the petitioner; amount of compensation has not yet been recovered, therefore, petitioner is not entitled to be released on bail. Learned Counsel for the complainant submits that the order dated 13.2.2003 was obtained by concealing material facts.

8. On being asked, whether any effort was made by the police, while the petitioner was in custody, to seize the amount of Rs. 45 lakhs obtained by the petitioner on the basis of forged Will, learned Counsel for State on instructions frankly concedes that no such effort has been made till date. Learned APP, however, submits that investigation is still in progress and appropriate steps in this regard would be taken.

9. I have considered the rival contentions. The case primarily depends on documentary evidence. The forged Will is dated 14.4.1989; the compensation was received on 23.8.1998 on the basis of mutation dated 19.3.1997 (about 6 years earlier); complainant's effort to stop the disbursement of compensation did not succeed. Admittedly police did not make any effort to seize the amount while the petitioner was in custody. The bail was granted to the petitioner after due notice to the State. The consideration which should weigh with the Court while granting bail are different from the circumstances required to be considered for cancelling the bail. There must be very cogent and overwhelming circumstances for cancellation of bail, as held by the Supreme Court in several authoritative pronouncements, including Bhagirath Singh Judeja, .

10. In view of above, order dated 11.7.2003 is not sustainable and the same is set aside. Petitioner is ordered to be released on bail on his furnishing personal bond in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of the Trial Court, subject to his filing an affidavit of undertaking before the Trial Court regarding remaining portion of the land measuring about 6 bighas of Smt. Ratni Devi as per the terms, within one week. Learned Trial Court shall give notice to the complainant before accepting the undertaking. The petitioner shall be bound by that undertaking. Petitioner shall not in any way tamper with the evidence. Any observation made herein would not affect the merits of this case during trial.

11. Petition stands disposed of. dusty.