Delhi High Court
Ramesh Mathur vs State on 7 March, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 275/2012
Date of Decision: 07.03.2012
RAMESH MATHUR ..... Petitioner
Through: Mr. Javed Alvi, Advocate
versus
STATE ..... Respondent
Through: Ms. Fizani Husain, APP for State
with Sehdev Singh, ACP, Anti
Corruption Branch
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. The present petition has been preferred by the petitioner under Section
482 Cr.P.C. read with Section 167(2) and Section 439 Cr.P.C. for grant of
bail.
2. The facts leading to the present petition in brief are that FIR No.
28/2010 was registered against the petitioner along with the co-accused
persons under Section 13 (1)(d) of Prevention of Corruption Act read with
Section 420,468,471 and 120 B , Indian Penal Code. The allegations against
the petitioner in the said FIR was that the petitioner along with other co-
accused persons was involved in illegal conversion of agricultural land into
residential land in the area of revenue sub Division of Saraswati Vihar. It was
alleged that the petitioner in connivance with officials of Revenue Department
and officials of RWA, misrepresentated to the innocent buyers that vacant
agricultural lands were part of the colonies which were about to be
regularized. It was also alleged that the petitioner had cheated not only the
innocent buyers, but also the Government by not registering the conveyance
documents.
3. As the documents relating to conveyance of property come under the
purview of Valuable Security as per Section 30 IPC and were alleged to be
forged by the petitioner, consequently Section 467 IPC was added in the FIR
during the investigation. The petitioner is in judicial custody since 7th
December 2011. Earlier bail application of the petitioner has been dismissed
vide order dated 10.2.2012.
4. Learned counsel for the petitioner submitted that no case under Section
467 IPC is made out against him and it has been added by the prosecution to
frustrate the right to bail of the petitioner which accrued to him after the
expiry of statutory period of sixty days on not filling of challan. It was
submitted that the statutory period prescribed for filing of challan in offences
other than those punishable with imprisonment with death, imprisonment for
life or imprisonment for a term not less than ten years is 60 days and the
challan having not been filed in this period, the petitioner was entitled to be
released as per Section 167 (2) (a)(ii) Cr.PC. Reliance has been placed on
State of Maharashtra vs. Mrs. Bharati Chandmal Varma @ Ayesha
Khan in Crl.App.No.1227 of 2001 and Som Nath and Anr. vs. State of
Punjab 2011(3) RCR (Criminal)515.
5. Per contra, the learned counsel for the State submitted that the
petitioner has been rightfully charged under Section 467 IPC which is
punishable upto life imprisonment and therefore clause (i) of proviso (a) to
sub section 2 of Section 167 Cr.P.C. is applicable. It was submitted that as per
this provision, the period of filing of challan being 90 days, and since the
same was not yet over, the bail application of the petitioner deserves to be
dismissed.
6. I have heard the learned counsel for the petitioner and State and
perused the record.
7. From the perusal of record , it is prima facie evident that the petitioner
in connivance with co-accused Umed Singh has sold agricultural land in the
shape of small plots to innocent persons representing and describing those to
be forming part of Udai Vihar Colony, knowing fully well that the
agricultural land could not be fragmented into smaller plots and used for
residential purpose and that these did not form part of Udai Vihar Colony. He
also knew that that these plots did not form part of the colonies figuring in the
list of colonies to be regularized as per the Scheme of Regularization. The
land still remains agricultural land and do not form part of the above named
colony and the plots were subsequently demolished by SDM, Sarawati Vihar.
These plots were sold by the petitioner by executing unregistered documents
such as GPA, Agreement to Sale, Possession letter, Affidavit etc. Hence, it
cannot be said that Section 467 IPC has been added with any malafide intent
and this contention of the counsel for the petitioner cannot be accepted.
8. The statements of various investors/purchasers have been recorded and
they have confirmed that the petitioner has misrepresented and cheated them.
As per the documents which have been collected during investigation and
placed on record, it is seen that the petitioner has consciously executed these
documents such as General Power of Attorney, Agreement to Sell, Will etc.
and has specifically mentioned the number of the plots. Since the petitioner
has sold large number of such plots by colonizing on different dates, the
possibility cannot be ruled out of his continuing in colonizing, if he is released
on bail. Notice can also be taken of the fact that illegal colonizing of
agricultural lands has become a menace for the city and it is still continuing
despite the fact that the cut-off date has already been announced by the
Government for regularization of such colonies.
9. Now coming to the contention of the counsel for petitioner that in the
present case Clause (ii) of proviso (a) of sub Section 2 of 167 Cr.P.C. is
applicable and the petitioner is entitled to be released on bail, it is relevant to
pay attention to Section 467 IPC which has been added during the
investigation.
"Section 467. Forgery of valuable security, will, etc.
"Whoever forges a document which purports to be a valuable
security or a will, or an authority to adopt a son, or which
purports to give authority to any person to make or transfer
any valuable security, or to receive the principal, interest or
dividends thereon, or to receive or deliver any money,
moveable property, or valuable security, or any document
purporting to be an acquittance or receipt acknowledging the
payment of money, or an acquittance or receipt for the delivery
of any moveable property or valuable security, shall be
punished with [imprisonment for life], or with imprisonment of
either description for a term which may extend to ten years,
and shall also be liable to fine".
10. Thus, it can be clearly seen that offence under Section 467 IPC is
punishable "with imprisonment for life, or with imprisonment of either
description of a term which may extend to ten years, and shall also be liable to
fine." It is a settled legal proposition that merely because minimum sentence
is provided that does not mean that sentence imposable is only the minimum
sentence. Where maximum and minimum sentence is prescribed, any
appropriate sentence can be imposed by the Court, depending upon the facts
and circumstances of the case. Thus, it is concluded that since offence under
Section 467 IPC is punishable upto life imprisonment, the case of the
petitioner is covered under Clause (i) of proviso (a) to sub section 2 of Section
167 Cr.P.C. and the maximum statutory period upto which the petitioner can
be kept in judicial custody is 90 days, which has not yet elapsed.
11. Coming to the judgments, cited by the petitioner, it is seen that in State
of Maharashtra vs. Mrs. Bharati Chandmal Varma @ Ayesha Khan
(supra), the question that was before the Court was that whether 90 days
would commence from the date of according sanction to investigate the case
under MCOCA or not, which is not the question raised in the present
proceedings. In Som Nath and Anr. vs. State of Punjab (supra), the challan
was not filed at all during the subsistence of statutory period of remand,
which is not the case in the present scenario. The judgments, being
distinguishable on facts and question of law, are not applicable to the present
case before this Court.
12. In view of the above discussion and considering the seriousness of the
offence, I am not inclined to enlarge the petitioner on bail. Petition is hereby
dismissed.
13. Nothing contained in this order shall amount to expression of opinion
on the merits of the case.
M.L. MEHTA, J.
MARCH 07, 2012
awanish
