Punjab-Haryana High Court
Amandeep Singh vs State Of Punjab on 20 September, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
203
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-44536-2024
Date of Decision: September 20, 2024
AMANDEEP SINGH ....Petitioner(s)
VERSUS
STATE OF PUNJAB ....Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Gautam Dutt, Advocate with
Mr. Mehtab Kamboj, Advocate
for the petitioner.
Mr. Jaspal Singh Guru, AAG, Punjab.
****
SANDEEP MOUDGIL, J.(ORAL)
1. Relief Sought
The jurisdiction of this Court under Section 483 of Bhartiya
Nagrik Suraksha Sanhita, 2023 has been invoked seeking the concession of
regular bail for the petitioner in FIR No.510 dated 24.12.2023, under Sections
406, 420, 465, 467, 468, 471 and 120-B IPC registered at Police Station
Sohana, SAS Nagar, Mohali (Punjab).
2. Prosecution story set up in the present case as per the version in
the FIR read as under :-
'The Additional Chief Administration, GMADA, Room no. 226,
PUDA Bhawan, Sector 62 Mohali, SAS Nagar 160062, Subject:
Cancellation of CLU obtained by Nitin Khetan (for Funex Infra Pvt
Itd.) who mislead your office using forged documents of Rajmohan
Kaur (Trust) - Kindly scrutinize documents of CLU (vide letter no:
2095 DTP SAS Nagar dated 03.11.2022) on urgent basis. Respected
Sir, Since past one month have been running pillar to post, visiting
various offices of GMADA and facing total non-cooperation from
various GMADA offices located at PUDA Bhawan, Sector 62, Mohali
(SAS Nagar). A short while ago, on my regular visits to my land
located at village Kailon, Mohali, having khata no. 14/14, 119/144,
khasra no. 38//2 (8-0), 3(8-0), 8(1-15), 10(7-16), 36//19/1 (2-2), 23(8-
0), 22(8-0), 38//9(4-4), 38//11(2-0), 39//15/2(2-17), measuring 49
Kanal 9 Marla owner Rajmohan Kaur, The Anabhau Foundation
Charitable trust, I saw a labourer holding map of "Khetan English
County" Project Map and pamphlet showing CLU (vide letter no:
2095 DTP SAS Nagar dated 03.11.2022) at Sirhind-Chunni Road near
our land. When I inspected the map, it was showing our land as part
of "Khetan English County" Township project by Funex Infra Private
Limited which had plots, parks and roads. Upon asking the labourer
who gave them permission to show our land as part of their project he
ran away. Since then I have been visiting various offices of yours but
no one has answered my queries for reasons best known to them. I
never gave any permission to anyone to include my land in their
project. It seems Nitin Khetan for Funex Infra Private Limited /
Khetan Realty has obtained CLU for their project using forged
documents in your office. Kindly provide to me a copy of such
documents so I can initiate suitable action as per law. If still no action
is taken by your office, then I will have no other option but to go to
Police Officials, Punjab Vigilance Bureau and the Hon'ble Court
against you as it is my suspicion that Nitin Khetan carried out this
fraud using forged documents and GMADA issued the CLU without
verifying the owner (Rajmohan Kaur, Trust) of the land, neither did
you verify the persons whose consent letters was used, nor any official
of your office informed the owner (Rajmohan Kaur, Trust) about it. I
hope you will take my final request into consideration and take
prompt action. Any delay in action by you can cause massive damage
to my rights and it my humble prayer to you to please do not waste
one more second and handle my request on a priority basis. look
forward to hearing from you and request you to send all
communication my mobile no. 9569999556 through call / Whatsapp
and email [email protected]. I will only accept
communication/notice/queries sent at the above listed by your office
as it will allow me to communicate....'
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner contends that the allegation
against the petitioner is that he is not authorized to issue the resolution dated
08.12.2021 (Annexure P2) and letter of consent dated 22.02.2023 (Annexure
P3) on account of not being the trustees and/or chief patron of the trust. The
petitioner is ready to hand over the original copy of the resolution (Annexure
P2) for forensic examination.
He submits that in fact the de facto complainant Mrs. Rajmohan
Kaur had resigned from the trust on 19.05.2021 and she had no locus standi or
interest into the affairs of the trust on the date of execution of the above
resolutions (Annexures P2 & P3), however, she is insinuating that she never
resigned from the Trust and the resolution dated 8.12.2021 and letter of consent
have been issued without any jurisdiction or authority and as against her
allegations, the said Rajmohan Kaur never challenged the validity of the said
documents.
It is vehemently urged that there is no allegation qua the petitioner
in having any role for fraudulently obtaining CLU for the land of the trust and
these allegations have been attributed against Kanwaljet Singh Walia, Director
of M/s RKM Housing and Nitin Khetan, Director of M/s Funex Infra P.Ltd. and
these accused persons have been already granted the concession of anticipatory
bail by this Court vide orders dated 14.05.2024 and 05.08.2024 passed in
CRM-M-24123-2024 and CRM-M-37340-2024, respectively.
On behalf of the State
Notice of motion.
On the asking of the Court, Mr. Jaspal Singh Guru, AAG,
Punjab accepts notice. Mr. Ashutosh Gupta, Advocate has put in appearance on
behalf of the complainant. They opposed the prayer made on behalf of the
petitioner for grant of regular bail to him on the ground that the petitioner along
with co-accused persons have forged the documents and committed fraud with
the complainant. The Trust being a family Trust makes it unbelievable as
claimed by the petitioner that there will be no Trustee from the said family,
which was there earlier and as such, a big fraud has been committed and the
Trust deed, which was in existence creating the Trust, has been superseded by
allegedly involving the persons outside the family of the Trust and by forging
the documents.
It is argued that it is highly unbelievable that the trustees of the
Trust, who are all family members will sell or transfer their land without
getting any consideration and there is no proof of any consideration being
transferred to the original trustees or any of their family members inasmuch as
the documents of the Trust and their resignation letters have been forged.
Another argument raised on behalf of the complainant is that the
family members remained trustees for almost 19 years and suddenly resign and
total strangers to the family are appointed as trustees of the Trust whereas the
original trustees did not pay any amount for the land which they purchased 19
years back. He further averred that the Power of Attorney executed by
Rajmohan Kaur is not a forged document. In fact the petitioner has obtained
the CLU on the basis of a forged consent letter purported to be given by the
complainant.
4. Analysis
The case projected and argued by the learned counsel for the petitioner is
that the accused have been falsely implicated in the present case on the basis of
the complaint sent by the subordinate officer of the GMADA, though the Chief
Administrator, GMADA had rejected the complaint, which has been made the
subject matter of the FIR. The specific allegations in the FIR are that the
signatures of Rajmohan Kaur have been forged and the forged documents have
been used. Before sending the letter for the registration of the FIR, the detailed
inquiry has also been conducted and the opportunity to the accused side to
appear was given.
As can be seen that while obtaining CLU in the year 2016, RKM
Housing P.Ltd. produced the consent letter containing forged signature of Raj
Mohan Kaur. Whether or not the petitioner had any role to play in obtaining the
CLU issued in the name of RKM Housing P.Ltd. is yet to be ascertained and
even if it is assumed that if any forgery was done in getting the CLU, even then
the petitioner cannot be held liable.
Surprisingly, if any forgery was done in getting the CLU, it is not
understandable as to why Raj Mohan Kaur, alleging herself to be chief patron
of the Trust, kept mum till 2023 and no objection was raised at the time when
public notice was issued by the GMADA at the time of issuance and/or transfer
of CLU to RKM Housing P.Ltd.
As regards the resolution dated 15.06.2021 relied upon by the
complainant, it cannot be said that vide the said resolution any trustee have
resigned or any new members were inducted as new trustees. Moreover, the
said resolution was never challenged.
Be that as it may, looking into the totality of the facts, this Court
is conveniently of the view that a dispute has arisen out of Real Estate Business
between the petitioner and the complainant and the allegation with regard to the
forged and fabricated can be tested and examined by leading evidence at an
appropriate stage during the course of investigation, thus, the custodial
interrogation of the petitioner is not required.
In view of the discussions made hereinabove as also the fact that
the co-accused to the petitioner, namely, Nitin Khetan and Kanwaljit Singh
Ahluwalia who are the main accused are already given anticipatory bail; also
the petitioner has already suffered sufficient period in custody i.e. 01 month 10
days and as per the principle of the criminal jurisprudence, no one should be
considered guilty, till the guilt is proved beyond reasonable doubt, whereas in
the instant case, challan has not been presented, which is sufficient for this
Court to infer that the conclusion of trial is likely to take considerable time and
detaining the petitioner behind the bars for an indefinite period would solve no
purpose.
Reliance can be placed upon the judgment of the Apex Court
rendered in "Dataram versus State of Uttar Pradesh and another", 2018(2)
R.C.R. (Criminal) 131, wherein it has been held that the grant of bail is a
general rule and putting persons in jail or in prison or in correction home is an
exception. Relevant paras of the said judgment is reproduced as under:-
"2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences but
that is another matter and does not detract from the fundamental
postulate in respect of other offences. Yet another important facet
of our criminal jurisprudence is that the grant of bail is the
general rule and putting a person in jail or in a prison or in a
correction home (whichever expression one may wish to use) is
an exception. Unfortunately, some of these basic principles
appear to have been lost sight of with the result that more and
more persons are being incarcerated and for longer periods. This
does not do any good to our criminal jurisprudence or to our
society.
3. There is no doubt that the grant or denial of bail is entirely the
discretion of the judge considering a case but even so, the
exercise of judicial discretion has been circumscribed by a large
number of decisions rendered by this Court and by every High
Court in the country. Yet, occasionally there is a necessity to
introspect whether denying bail to an accused person is the right
thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best opportunity
to tamper with the evidence or influence witnesses. If the
investigating officer does not find it necessary to arrest an
accused person during investigations, a strong case should be
made out for placing that person in judicial custody after a
charge sheet is filed. Similarly, it is important to ascertain
whether the accused was participating in the investigations to the
satisfaction of the investigating officer and was not absconding or
not appearing when required by the investigating officer. Surely,
if an accused is not hiding from the investigating officer or is
hiding due to some genuine and expressed fear of being
victimised, it would be a factor that a judge would need to
consider in an appropriate case. It is also necessary for the judge
to consider whether the accused is a first-time offender or has
been accused of other offences and if so, the nature of such
offences and his or her general conduct. The poverty or the
deemed indigent status of an accused is also an extremely
2024.09.20 19:44 important factor and even Parliament has taken notice of it by
incorporating an Explanation to section 436 of the Code of
Criminal Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting section
436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted
by a judge, while dealing with an application for remanding a
suspect or an accused person to police custody or judicial
custody. There are several reasons for this including maintaining
the dignity of an accused person, howsoever poor that person
might be, the requirements of Article 21 of the Constitution and
the fact that there is enormous overcrowding in prisons, leading
to social and other problems as noticed by this Court in In Re-
Inhuman Conditions in 1382 Prisons, 2017(4) RCR (Criminal)
416: 2017(5) Recent Apex Judgments (R.A.J.) 408 : (2017) 10
SCC 658
6. The historical background of the provision for bail has been
elaborately and lucidly explained in a recent decision delivered in
Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609
going back to the days of the Magna Carta. In that decision,
reference was made to Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 in which it is observed that it was held way
back in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that
bail is not to be withheld as a punishment. Reference was also
made to Emperor v. Hutchinson, AIR 1931 Allahabad 356
wherein it was observed that grant of bail is the rule and refusal
is the exception. The provision for bail is therefore age-old and
the liberal interpretation to the provision for bail is almost a
century old, going back to colonial days.
7. However, we should not be understood to mean that bail
should be granted in every case. The grant or refusal of bail is
entirely within the discretion of the judge hearing the matter and
though that discretion is unfettered, it must be exercised
judiciously and in a humane manner and compassionately. Also,
conditions for the grant of bail ought not to be so strict as to be
incapable of compliance, thereby making the grant of bail
illusory."
Therefore, to elucidate further, this Court is conscious of the
basic and fundamental principle of law that right to speedy trial is a part of
reasonable, fair and just procedure enshrined under Article 21 of the
Constitution of India. This constitutional right cannot be denied to the accused
as is the mandate of the Apex court in "Hussainara Khatoon and ors (IV) v.
Home Secretary, State of Bihar, Patna", (1980) 1 SCC 98. Besides this,
reference can be drawn upon that the pre-conviction period of the under-trials
should be as short as possible keeping in view the nature of accusation and the
severity of punishment in case of conviction and the nature of supporting
evidence, reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is hereby directed to be released on regular bail under Section 483 of
Bhartiya Nagrik Suraksha Sanhita, 2023 on his furnishing bail and surety
bonds to the satisfaction of the trial Court/Duty Magistrate, concerned.
In the afore-said terms, the present petition is hereby allowed.
However, it is made clear that anything stated hereinabove shall
not be construed as an expression of opinion on the merits of the case.
(SANDEEP MOUDGIL)
JUDGE
20.09.2024
Sangeeta
Whether reasoned/speaking: Yes/No
Whether reportable: Yes/No
