Delhi High Court
Kulwinder Singh vs State Of Nct & Anr on 10 August, 2018
$~15 & 16
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 10th August, 2018
+ CRL.M.C. 1987/2016
KULWINDER SINGH ..... Petitioner
Through: Mr. Abhik Kumar with Mr. Rinku
Mathur, Advocates.
versus
STATE OF NCT & ANR ..... Respondents
Through: Mr. Akshai Malik, APP for State with
SI Madhurendra Kumar, P.S. EOW.
Mr. Rakesh Wadhwa, Advocate for
R-2.
+ CRL.M.C. 4155/2016
RESHAM SINGH LALLY ..... Petitioner
Through: Mr. Rakesh Wadhwa, Advocate.
versus
STATE & ANR .... Respondents
Through: Mr. Akshai Malik, APP for State with
SI Madhurendra Kumar, P.S. EOW.
Mr. Abhik Kumar with Mr. Rinku
Mathur, Advocate for R-2.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. On the complaint of Resham Singh Lally (the petitioner in
Crl.M.C. No. 4155/2016), the Chief Metropolitan Magistrate of South
District, by his order dated 09.05.2013, exercising his power and
jurisdiction under Section 156(3) of Code of Criminal Procedure, 1973
(Cr.P.C.) directed an investigation to be carried out by the police, the
complaint revealing cognizable offences having been committed.
Pursuant to the said order, the Economic Offences Wing (EOW) of
Delhi Police registered first information report (FIR) no.114/2013 and
took up the case for investigation into offences punishable under
Sections 406/420/120B of Indian Penal Code, 1860 (IPC).
2. The petitioner Kulwinder Singh is named as the accused in the
aforesaid FIR. By his petition (Crl.M.C. 1987/2016), he invokes the
inherent jurisdiction of this Court under Section 482 Cr.P.C. to seek
proceedings in the FIR to be quashed, particularly, the order dated
09.05.2013 in terms of which, the FIR was registered.
3. During the course of investigation, the police issued notices in
the wake of which the accused (petitioner in Crl.M.C. 1987/2016) was
constrained to move initially the court of sessions for release on bail.
Though it appears some protection was granted at some stage, his
application was dismissed eventually and he was arrested on
22.11.2013. He produced before the Metropolitan Magistrate on
23.11.2013. He remained in police custody for three days. His
application for release on bail was rejected by Chief Metropolitan
Magistrate on 03.12.2013. This was followed by certain further
applications and, then on 10.01.2014, he was enlarged on interim bail
for ten days. The said interim bail was extended from time to time,
eventually, the application being rejected on 11.04.2014. He failed to
surrender immediately, this leading to non-bailable warrants being
issued. Finally, he surrendered in jail on 21.04.2014.
4. It was against the above said backdrop that he moved an
application for release on bail in this Court, his Bail Application
No.938/2014 being granted by order dated 05.12.2014, a perusal
thereof would show the release on bail was passed on memorandum of
understanding (MoU) dated 04.12.2014.
5. The order dated 05.12.2014 passed on Bail Application
no.938/2014 may be quoted as under:-
"This is an application under Section 439 read with
Section 482(hereinafter referred to as "Cr.P.C." seeking
bail in case FIR No.114/2013 under Sections 406/420/120B
IPC registered at PS EOW, Delhi.
Learned counsel for the applicant submits that the
applicant was arrested on 22.11.2013 and he was released
on interim bail by learned Additional Sessions Judge, Saket
Courts, New Delhi vide order dated 10.01.2014. He also
submits that the parties could not settle the matter and the
interim bail granted to the applicant was cancelled by
learned Additional Sessions Judge, South, Saket
Courts, Delhi vide order dated 11.04.2014. He further
submits that the applicant surrendered on 21.04.2014.
Thereafter, the applicant filed the present application
seeking bail and the applicant was admitted to interim
bail on 06.05.2014 by this Court for a period of three weeks.
Learned counsel for both the parties submit that the
parties have settled the matter and a Memorandum of
Understanding dated 04.12.2014 has been placed on record.
In terms of the settlement, the petitioner has agreed to pay a
sum of Rs.2 crores (Rupees two crores), without prejudice to
the rights of both the parties. As per the settlement, the
first instalment of Rs.50 lakhs (Rupees fifty lakhs) will be
paid by the applicant to the complainant on or before
20.12.2014 by way of demand draft and another sum of
Rs.50 lakhs (Rupees fifty lakhs) shall be paid on or before
20.02.2015. The remaining amount of Rs.1 crore (Rupees
one crore) shall be paid to the complainant by way of fixed
deposit receipts which will be deposited before the trial
Court on or before 05.04.2015.
It is also agreed that the petitioner shall not leave the
country without prior permission of the trial
Court. Learned counsel for the respondent/complainant, on
instructions from the complainant, submits that he has no
objection if the applicant is admitted to bail, in terms of
settlement. The other issues would be decided by the trial
court during the course of trial.
Learned APP for the State submits that investigation is
complete and charge-sheet has already been filed.
Considering the facts and circumstances of the case
and the submissions made by learned counsel for both the
parties, the applicant is admitted to bail on furnishing a
personal bond in the sum of Rs.1 lakh (Rupees one lakh)
with one surety of the like amount to the satisfaction of the
trial Court. However, the petitioner shall not leave the
country without prior permission of the trial Court, as
agreed by both the parties and parties shall abide by the
terms of the compromise.
The application stands disposed of.
Dasti."
6. It is the admitted case of the complainant (petitioner in Crl.M.C.
No.4155/2016) that the amount of Rupees one crore in two
installments of Rs.50 lakhs was paid to him by the accused in terms of
the bail order. It is, however, also admitted that one of the conditions
of the bail, i.e. the remaining amount of Rupees one crore which was
to be deposited in the form of fixed deposit receipt with the trial court
on or before 05.04.2015, has not been complied with till date. In this
context, it may be added that on subsequent applications - Crl.M.A.
1773/2015 and 4722/2016 - the time for deposit of the said amount of
Rupees one crore in the form of FDR or bank guarantee was extended
by three more months and five more weeks respectively by orders
dated 08.10.2015 and 23.05.2016 by learned Single Judges of this
Court. The accused, by another subsequent application - Crl.M.A.
11160/2016 - had sought further enlargement of time, but his said
request was declined, it being devoid of merits, by order dated
04.08.2016. In spite of dismissal of the said application for extension
of time by order dated 04.08.2016, the accused did not make
compliance with the aforesaid (second) condition of bail order.
7. Referring to the above default, the complainant by his petition
(Crl.M.C. 4155/2016) has approached this Court under Section 439(2)
read with Section 482 Cr.P.C. to seek cancellation of the bail granted
to the accused.
8. During the course of hearing, it was pointed out that
investigation of the case has since been concluded and report under
Section 173 Cr.P.C. was submitted on 01.04.2014. The Chief
Metropolitan Magistrate has taken cognizance thereupon summoning
the accused, he having appeared, the case being ever since at the stage
of consideration of charge. The counsel for the accused on being
asked would not give any explanation as to why the question of charge
remains unaddressed till date.
9. The petition by the accused under Section 482 Cr.P.C.
(Crl.M.C. 1987/2016) questions the registration of the FIR on merits,
the contentions being that false accusations have been made. The
challenge to the order dated 09.05.2013 by such a petition presented in
May, 2016 after the investigation into the said FIR has been completed
and even a charge-sheet presented in the court of cognizance which
has issued process thereupon is improper as it asks for a departure to
be made from the normal course of criminal procedure without any
special reasons being set out.
10. The Chief Metropolitan Magistrate upon perusal of the
complaint found cognizable offences made out. He, thus, exercised
his jurisdiction under Section 156(3) to direct investigation by the
police. The police complied with the said direction and, upon
investigation, has found substantive material on the basis of which
prosecution of the accused for offences under Section 406/420/120B
IPC has been proposed. The Chief Metropolitan Magistrate, upon
perusal, found grounds to proceed against the said accused and, thus,
issued process taking cognizance of the offences in terms of the
Section 190 read with Section 204 Cr.P.C.
11. Against this backdrop, the proper course for the petitioner is to
raise his contentions before the criminal court where the matter is
pending and assist it in taking a proper decision on the question of
charge. Rushing to this court by a petition under Section 482 Cr.P.C.
in a manner that would call for inquiry into the facts under Section
482 Cr.P.C. is improper [ Rajiv Thapar vs. Madan Lal Kapoor (2013)
3 SCC 330]. The petition for quashing of the order dated 09.05.2013
directing registration of the FIR is, therefore, dismissed.
12. The accused while resisting the other petition - Crl.M.C.
4155/2016 - refers to Biman Chatterjee v. Sanchita Chatterjee and
Another, [(2004) 3 SCC 388] to argue that the non-fulfilment of the
terms of compromise cannot be the basis for cancelling the bail. The
situation here, however, is different. It is not a case where there is
mere breach of terms of MoU. It is a case where the court while
granting release on bail had put certain conditions that included
deposit of the amount of Rupees one crore in the form of FDR with
the trial court within specified period. It was, thus, a condition
attached to the bail order. The petitioner did not comply with the
directions within the period specified i.e. on or before 05.04.2015.
The court showed indulgence by enlarging the time on his applications
by orders dated 08.10.2015 and 23.05.2016. When he came up with
third application, it was found to be devoid of merits and, thus, request
for further enlargement of time was declined on 04.08.2016. With the
rejection of his prayer for further enlargement of time, there was no
occasion for the accused not to comply with the condition. Since he
has concededly not complied with the condition till date, there is a
willful breach of one of the material conditions of the bail order.
Consequently, the benefit of the bail order has been forfeited by him.
The order, thus, stands exhausted. The accused being in breach cannot
avail of its benefit and must surrender to custody forthwith. Ordered
accordingly.
13. The trial court is directed to take appropriate steps to ensure due
compliance with the letter and spirit of these directions.
14. The petitions are disposed of in above terms.
9. Dasti.
R.K.GAUBA, J
AUGUST 10, 2018
srb
