JUDGMENT
S.K. Agarwal, J.
1. This petition under Sections 397/401 Cr.P.C. is
directed against the orders dated 26th and 27th July, 2000
passed by the court of Shri G.P. Thareja, Addl. Sessions
Judge, New Delhi, in the case FIR No. 152/95, under
Sections 448/380/411/406/420/468/467/471/120-B IPC,
P.S. Kotla Mubarakpur, whereby bail application of
petitioner No. 2-Smt. Suricha Rehman (wife of petitioner
No. 1) was rejected. Case of petitioner No. 1 is that the
impugned order also affects his rights, therefore, joint
revision by both the petitioners is maintainable.
2. Facts in brief are that on 9th May, 1995, Smt. Subhash
Devi lodged a report alleging that some bad characters
have entered ground floor of her house No. E-82, NDSE
Part-I, New Delhi, and taken control of the same
(hereinafter, “the property”); the police on the basis of
her report, registered above noted case. The
investigations revealed that the property was sold through
eight sale deeds, all dated 11.1.95, by the petitioner
No. 1 on the basis of unregistered General Power of
Attorney dated 24.1.87, (hereinafter, “the GPA”),
allegedly executed by the complainant, authorising him to
sell the property. All the sale deeds were witnessed by
petitioner No. 2 However, the complainant stated that she
never executed the GPA in his favor authorizing him to
sell the property; she never visited the office of the
Sub-Registrar; and that a fraud was played upon her, by
petitioners in connivance with the purchasers.
Investigations of the case were unduly delayed and
remained pending for more than four years, without any
substantial progress, for the reasons best known to the
Police. The complainant-Smt. Subhash Devi filed a Writ
Petition (Crl.Writ Petition No. 374/99) on 13.4.99,
impleading concerned police officials and petitioners as
respondent Nos. 9 and 10, praying directions for
expeditious investigations of the case. Writ Petition was
disposed of on 9.12.99 directing the police to complete
the investigations expeditiously and fairly within two
months. In January, 2000 when warrant against petitioner
No. 1 was obtained, he moved an application for grant of
anticipatory bail, which was dismissed; he did not join
the investigations and left India. The State through an
application (Crl.M.No. 932/2000), in the Writ Petition,
brought to the notice of the court above facts and sought
more time to complete investigations. The time was
granted. Petitioner No. 1 could not be arrested, and
proceedings under Sections 82 and 83 of the Cr.P.C.
against him were initiated. Challan was filed on
3.4.2000, against petitioners and purchasers, namely,
Ashok Chaudhary, B.M.N. Sehgal, Sanjay and Tinny Khanna.
Learned trial court took cognizance under the above-noted
Sections. Cognizance was also taken against other accused
persons, mentioned in column No. 2 of the challan, namely,
Baldev Kumar, Ramesh Aggarwal and Narayan Arora.
3. Petitioners challenged the order issuing non-bailable
warrants against him/them and filed several petitions for
grant of anticipatory bail, but without any success.
Reference to various petitions filed by them is not
necessary and it would be enough to refer to following
petitions.
(i) On 27th July, 2000, bail application of accused
Mrs. Suricha Rehman (petitioner No. 2) was dismissed by the
learned Addl. Sessions Judge with liberty to move bail
application again after she deposits the amount received
by her husband by selling the property along with
interest. She sent to judicial custody. It was held
as under:-
“It is admitted before me that the money
is with Abdul Rehman, the husband of the
accused. On the face of such a
situation, should bail be granted. The
good conscious directs me ‘No’ until and
unless equity is maintained by the
accused. Since good conscious directs
otherwise, I refuse bail to the
applicant. However, I give liberty to
the applicant who are present that if
they are ready to part with the money
along with interest up to date by way of a
bank draft at bank rate to move for bail
again. Application is disposed of
accordingly. Applicant be sent to
custody and produce before the MM
tomorrow.
Sd/-
ASJ, N. Delhi”
After two or three days she was granted bail by the
trial court. However, the bail was cancelled on
4.8.2000 by the trial court on the ground that it was
obtained by misrepresentation and that it was not
brought to the court’s notice that her bail application
was earlier dismissed on merits. (ii) On 20.9.2000 the
petitioner No. 1 moved an application
(Crl.M.No. 1790/2000) in the above-noted Writ Petition of
the complainant wherein in Crl.W.No. 374/99, they were
arrayed as respondents 9 and 10 and obtained interim
protection against arrest, he was directed to join the
investigation and to produce the original GPA. He
participated in the investigation on 21.9.2000, but did
not produce the original GPA and consequently on
29.11.2000, his application was dismissed and the
protection against arrest was vacated by the Division
Bench holding as under:-
“Respondent No. 9, in spite of directions
of 20th of September, 2000, has not
produced the original power of attorney.
Let the State draw inference, admissible
under law, to the same. The interim
protection that respondent No. 9 shall not
be arrested stands vacated. With the
observations, application stands disposed
of. dusty counsel for State.”
(emphasis supplied)
(iii) On 28.9.2000, petitioners filed above revision
petition against the order dated 27.7.2000 dismissing
bail application of petitioner No. 2, inter alia, on the
ground that the principle of “equity” does not apply to
the criminal courts and it cannot act as a court of
recovery; that the Addl. Sessions Judge did not take
into account that two civil suits between the parties
relating to the same properties were pending; that it
was not possible for the petitioners to fulfill the
condition for depositing of the amount and it amounts to
denial of bail. Notice was issued and interim
protection against arrest was granted again subject to
the condition that they will join investigation. this
interim order continues to operate. This petition is
being decided by this order.
4. At the outset it may be noticed that the petitioners
in above petition filed on 28.9.2000 concealed the fact
that the bail granted to petitioner No. 2 was cancelled
vide orders dated 4th August, 2000 by the trial court,
and that similar protection against arrest was operating
by the order of Division Bench. These facts came light
only during arguments. On 31.5.2001, when the matter
came up for hearing on, it was noticed that
investigations were carried out in a slip shod manner,
without adopting the scientific approach. Several
crucial aspects of the case were not investigated.
Looking into the nature of allegations and gravity of
the offence, and the fact that the petitioner No. 1 is
practicing advocate, DCP, South District was directed to
examine the matter. Thereafter, it appears that further
investigations were taken up. On 23.8.2001, Mr. P.
Kamraj, DCP, South District, filed an affidavit stating
that: (i) during the course of investigation sale deeds
executed by the petitioner Abdul Rehman in favor of
purchasers were collected & deposited with Forensic
Science Laboratory (hereinafter “F.S.L.”) Malviya Nagar
for opinion on the disputed signatures; receipts of
payment, were neither found with relevant papers in Sub
Registrar’s Office nor the purchasers produced the same.
Purchasers stated that Abdul Rehman admitted before
Sub-Registrar about the payment. This fact was also
corroborated by the then Sub Registrar. Sh. Shyam Chand
who registered the sale deeds; (ii) enquiries from
purchasers revealed that they had paid a sum of Rs. 15,10,000.00 out of which Rs. 7,70,000.00 was paid
through cheques and rest payment was made in Cash. The
details of various payment were also given. Ashok
Chaudhary (the purchaser) paid Rs. 2,00,000.00 through
Cheque No. 596789 issued form P.N.B. South Extn.
which was encashed by Abdul Rehman; B.M.N. Sehgal (the
purchaser), paid Rs. 2,00,000.00 through Cheque No. 484208
from his saving A/C No. 10273 of Syndicate Bank. Green
Park and Tinny Khanna (the purchaser) paid
Rs. 2,00,000.00 and 1,70,000.00 through Cheque No.
493338 & 493339 respectively issued from their account
were encashed by Abdul Rehman through his Account
No. 112148 in Allahabad Bank Krishana Nagar, Delhi;
(iii) in the course of further investigation original
sale deeds, possession letter given by Abdul Rehman to
BMN Sehgal (the purchaser) along with relevant documents
were deposited with FSL; (iv) it was found that out of
Rs. 7,70,000.00 received by Abdul Rehman through cheques
from the Purchasers in his A/c No. 112148 of Allahabad
Bank, Krishna Nagar Rs. 5,03,287 was available which was
seized; and (v) certified copies of sale deeds were
collected from the office of Sub-Registrar. Shri Shyam
Chand, Sub-Registrar stated that Abdul Rehman admitted
before him that he had received Rs. 15.10 lacs from the
purchasers. The petitioners did not produce original
GPA. The police sought more time to complete further
investigation. On 1.11.2001 another status report of
the investigation was filed incorporating the opinion of
the hand writing expert on the documents seized
including photocopy of the GPA on the basis of which
sale deeds were executed. The GPA and the affidavit
were opined to be not genuine.
5. Learned counsel for the petitioners took time to
file reply and to have instructions in the matter. On
23rd January, 2002, Shri K.B. Andley, learned Senior
Advocate, on instructions from petitioner No. 1,
submitted that without prejudice to his rights and
contentions, he was ready and willing to deposit the
entire sale consideration of Rs. 15.10 lacs received by
him, as the attorney of the complainant from the
purchasers while executing eight sale deeds and sought
two months’ time and that the petitioner does not claim
any right in the premises in dispute and would have no
objection if the premises in dispute are seized during
investigation. Petitioner was directed to file
affidavit in support of his submission. Petitioner No. 1
deposited the amount in the Court and on 28th May, 2002
filed an affidavit in support of his submission, which
reads as under:-
“(i) That I had executed eight Sale
Deeds on 11.1.1995 in respect of property
No. E-82, NDSE Part-I, New Delhi 110049 on
the strength of General Power of Attorney
dated 24.1.1987 executed by Subhash Devi
Ved Prakash in my favor. The GPA was
notarized only and not registered.
(ii) That I had handed over the
original General Power of Attorney to
Shri Ashok Kumar at the time of execution
of Sale Deeds on 11.1.1995. Shri Ashok
Kumar was accompanied by Shri B.M.N.
Sehgal at the time of the execution of
Sale Deeds.
(iii) That after 11.1.1995 I never came
in possession of original General Power
of Attorney.
(iv) That as per directions of the
Division Bench dated 20.9.2000 in
Criminal Writ Petition No. 374/99 I had
made sincere efforts to obtain the
General Power of Attorney from Shri Ashok
Kumar and Shri B.M.N. Sehgal but both of
them refused to oblige without assigning
any reason. The original General Power
of Attorney is still in their possession
or may have been misplaced by them. In
any case it was handed over by me to Shri
Ashok Kumar on 11.1.1995 at the time of
execution of Sale Deeds. Shri Ashok
Kumar and Shri B.M.N. Sehgal are the
main purchasers of the property and seems
to be unwilling to produce the original
General Power of Attorney for reasons
best known to them.
(v) That I have deposited the entire
sale consideration for property No. E-82,
NDSE Part I, New Delhi-110049 which is
in the sum of Rs. 15.1 lacs (Rupees
Fifteen lacs Ten Thousand only) in this
Court in the form of Bank Draft in favor
of the Registrar, High Court of Delhi,
without prejudice to the rights of the
parties.
(vi). That I have authenticated by
signing on each page a photo copy of the
original General Power of attorney dated
24.1.1987, a copy of which is on police
file. The photo copy authenticated by me
is the true copy of the original General
Power of attorney dated 24.1.1987 on the
strength of which I executed 8 Sale Deeds
on 11.1.1995 in respect of property
No. E-82 NDSE Part-I, New Delhi-110049.
All the original sale deeds executed by
me on 11.1.1995 were also authenticated
by me with my signatures on each page of
all the 8 sale deeds in question.
(vii). That the investigating officer
namely, Inspector Hanuman Dan, conducted
searches at my residence and my Chamber
in Tis Hazari Court, Delhi-54 on
25.5.2002. A proper Search Memo was
prepared by the Investigating Officer and
he got the same signed by me and my wife
Ms. Suricha Rehman who is petitioner NO. 2
in the Revision Petition. The petitioner
No. 2 also joined investigation on
25.5.2002 and was interrogated by the
Investigating Officer. On 27.5.2002 the
IO called me to his office where I was
confronted with Ashok Kumar and B.M.N.
Sehgal, who were present there. I said
it to their face that I had handed over
the original General Power of Attorney to
them and, more specifically, to Ashok
Kumar at the time of execution of the
sale deed on 11.1.1995. However, they
denied it and said that the original
document was not in either’s possession.
(viii). That I shall raise no objection
if the police seizes the disputed Ground
floor of the property in compliance with
this Hon’ble Court’s orders or otherwise
in accordance with the law, pending
further investigations, criminal trial
and further proceedings with regard to
the dispute.”
6. Learned counsel for State vehemently argued that
admittedly the GPA was not a registered document; on
the basis of an unregistered GPA dated 24.1.1987, sale of
immovable property could be made, much less by eight
registered sale deeds all dated 11.1.1995. As per the
FSL report, on the photocopy of the GPA dated 24.1.87
produced by the petitioners, the entire second page and
two lines in capital letters on page three are typed on
a different typewriter than the page number one and page
number three. The second page also does not bear any
notary seal; it is on this page that the power to sell
the property is contained. The affidavit dated 9.7.1994
which was used for effecting sale does not bear the
signature of the complainant; and the typewriter used
to type the affidavit is the same which is used for
typing of the entire second page and second line in the
capital letters of the third page on the GPA dated
24.1.87. He further argued that the original GPA is yet
to be recovered and in the absence of the original Power
of Attorney prosecution case may suffer, therefore,
custodial interrogation of the petitioners is necessary
and that in view of the conduct of petitioners and
nature of allegations the petition is liable to be
dismissed.
7. Learned counsel for complainant supporting learned
APP for State further argued that under Sub-section (1)
of Section 102 Cr.P.C. Police has the duty and the
power to seize the property which has been obtained
by commission of offence. In support of his submission
reliance is placed on State of Maharashtra v. Tapas D.
Neogy , wherein it was held:-
“A plain reading of Sub-section (1) of
Section 102 indicates that the police
officer has the power to seize any property
which may be found under circumstances
creating suspicion of the commission of any
offence. The legislature having used the
expression “any property” and “any offence”
have made the applicability of the
provisions wide enough to cover offences
created under any Act. But the two
preconditions for applicability of Section
102(1) are that it must be “property” and
secondly, in respect of the said property
there must have been suspicion of
commission of any offence.”
He argued that because of non-availability of
original General Power of Attorney investigating agency
was not able to obtain definite opinion of the FSL on
the forgery on the relevant page of the GPA and other
associates of the petitioners are yet to be arrested.
In support of his submission he also relied upon the
statement made by Abdul Rehman (petitioner No. 1) on oath
on 9.3.1998 in Civil Suit No. 2165/95 instituted by the
complainant where he produced photocopy of the purchaser. The
relevant portion of which reads as under:-
“Statement of Shri Abdul Rehman s/o Shri
Abdul Mazid age 48 years, Legal
Practitioner, R/o Z-2, Taj Enclave, Link
Road, Gita Colony, Delhi-31 on SA:-
Q. In your written statement, you have
pleaded in para 26 that you had
executed 8 sale deeds in respect of
property No. E-82, NDSE Part I, New
Delhi in favor of defendants No. 1 to
5. On what basis, that is, under what
authority you had executed the sale
deeds?
A. I had executed these sale deeds in
pursuance of a power of attorney
executed in my favor by the
plaintiff.
Q. Where is that power of attorney?
A. At the time of execution of the sale
deeds, I had given the original power
of attorney to defendant No. 5 on
11.1.1995.
Q. Had you mentioned in the sale deed
that the original power of attorney
had been handed over by you along with
the sale deed to defendant No. 5?
A. No. I have not so mentioned in any of
the 8 sale deeds executed by me.
Q. Had you obtained acknowledgement from
the defendant No. 5 in token of having
handed over the original power of
attorney of him?
A. No.
Q. When that power of attorney in you
favor was executed by the plaintiff?
A. On 24.1.1987.
Q. Wherefrom have you given this date.
A. I have given this date after verifying
them in the photocopy of that Power of
Attorney available with me.
(Defendant No. 6 is directed to produce
the copy of the Power of Attorney).
I am producing that copy of the Power
of Attorney duly signed by me now on each
page which is marked “A”.
Q. Was this power of attorney registered
under the Registration Act?
A. This power of attorney was not
registered under the Indian
Registration Act.”
9. Learned counsel for petitioners, on the other hand,
argued that the petitioners are a peace-loving and law
abiding citizen; petitioner No. 1 is a practicing lawyer
for the last 25 years; he was labouring under the
bona-fide impression that on the basis of unregistered
GPA dated 24.1.1987 photocopy of which was recovered by
the police (one copy of the GPA which was produced
before the Civil Court is Mark ‘A’), he could sell the
property in question; that petitioner at his own has
already deposited the entire sale consideration of
Rs. 15.10 lacs received by him, from the said purchasers
without prejudice to his rights and contentions; that
the original General Power of Attorney, is not with him.
he argued that it was stated by him before the Civil
Court that the original attorney was handed over by him
to the purchasers. It might have been mis-placed. He
further submits that the petitioner had also given an
attested photocopy of GPA to the investigating officer,
on the basis of which he had sold the property; and the
search of his house and office has already been
conducted. he further submits that petitioner has filed
an affidavit stating the above facts; he does not
object the property being seized during investigation;
that no case for subjecting the petitioner for custodial
interrogation is made out after seven years of
registration of the FIR. He argued that petitioners are
ready and willing to abide by any other condition that
may be imposed.
10. I have considered the rival contentions. There is
no dispute that petitioner No. 1 is a practicing lawyer
and he has already participated in the investigation;
the search of his house and office has already been
conducted and total sale consideration received by him
has been deposited in the court; further petitioners
have no objection if the property is sealed by the
Police during investigations. Attested photocopy of the
GPA, on the basis of which he had sold the property to
the co-accused persons, has been given to the Police.
The photocopy of the same was earlier produced in the
civil court and copy of the same was given to the
police. Petitioner No. 2 was sent to judicial custody on
27th July, 2000, The co-accused/purchasers are already
on bail; no serious effort appears to have been made to
interrogate them in this regard. Learned counsel for
State has failed to point out any disclosure statements
either of the petitioner or the co-accused persons to
make out a case for custodial interrogation.
11. Now coming to the apprehension that in the absence
of original GPA, the prosecution case would be adversely
affected, it may be noticed that case of the petitioners
is that the property was sold on the basis GPA alleged
to have been executed by the complainant. This is a
fact which is especially within their knowledge.
Original is supposed to be with either of them. Prima
facie the burden of proving that eight sale deeds were
executed by the petitioners on the basis of the genuine
& valid GPA would be on them. This principle is
embodied in illustration (b) of Section 106 of the
Evidence Act, which reads as under:
“Burden of proving fact especially within
knowledge:-
When any fact is especially within the
knowledge of any person, the burden of
proving that fact is upon him.
Illustration
(a) xxx xxx
(b) A is charged with traveling on a
railway without a ticket. The burden of
proving that he had the ticket, is on
him.”
12. It is true that as a general rule this Section does
not absolve the prosecution from the primary burden of
proving its case and that burden of proof remains on the
prosecution as contained in Section 101 of the Evidence
Act, but Section 106 is designed to make an exception,
where it is difficult for the prosecution to establish
facts which are especially within the exclusive
knowledge of the accused persons. In such a case the
prosecution would not be required to eliminate all
possible defenses. It is not the law that prosecution
has to eliminate all possible defenses or circumstances
which may exonerate them. If some facts are within
their knowledge then they have to prove them. Of
course, prosecution has to establish a prima facie case
in the first instant. For this purpose, prosecution can
rely upon material noticed above. If that is done, then
it would be for the accused to prove that there was a
genuine GPA authorizing him to get the sale deed
executed in favor of the purchasers. The Division
Bench while dismissing application of the petitioners on
29.11.2000 (Crl.M. No. 1790/2000 in Crl.W.No. 379/99)
had permitted the State to draw inference admissible
under the law.
13. To sum up, the case was registered in the year 1995. Police slept over the matter for over four years. The challan was filed on 3rd April, 2000, only after the complainant filed a writ petition in the High Court for expeditious investigation. It was found that the investigations were not carried out on scientific basis. Thereafter further investigations were taken up under the supervision of DCP during the pendency of this petition. Petitioner No. 2 Smt. Suricha Rehman remained in judicial custody after 23rd July, 2002. The purchasers are already on bail. The amount of the sale consideration of Rs. 15.10 lacs has already been deposited. No disclosure statement has been brought to my notice to support the prayer for custodial interrogation of the petitioners. They have already supplied attested photocopy of the GPA to the police on which FSL report has been obtained. The house and office search has already been conducted. Seven years have elapsed after registration of FIR. In the facts and circumstances of this case, the objections raised by learned APP for State opposing the grant of bail are not sustainable.
14. In view of the above, petitioners are ordered to be
released on bail, on each one of them furnishing
personal bond in the sum of Rs. 25,000/- thousand with
one surety each in the like amount to the satisfaction
of the SHO/Arresting Officer, subject to the condition
that they shall not tamper with the evidence in any way
and shall not leave India without prior permission of
the Court.
It is further directed that the amount of
Rs. 15.10 lacs deposited by the petitioners with the
Registrar General of this Court shall be kept in a fixed
deposit and would be released only after adjudication of
the rights of the parties by the competent court. The
investigating agency is directed to complete further
investigation at the earliest and it would be free to
seize the property in accordance with law, if the
circumstances so warrant.
With the above directions, the petition stands
disposed of. Record be sent back forthwith. Trial
court is directed to proceed with the trial
expeditiously. Any observations made herein would not
affect the merits of the case during trial.