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2004 DIGILAW 1219 (PNJ)

Hardev Singh v. State Of Haryana

2004-11-02

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. The instant petition filed under Section 438 of the Code of Criminal Procedure, 1973 (for brevity, Criminal Procedure Code) prays for pre-arrest bail to the accused-petitioner in case FIR No. 229 dated 12.6.2004, registered under Sections 419, 467, 468, 471 and 120-B of Indian Penal Code (for brevity, `Indian Penal Code), with Police Station, City Thanesar, District Kurukshetra. 2. The prosecution case as disclosed in the FIR is that after the death of one Smt. Indrawati on 9.9.1983, the petitioner has falsely set up an Agreement dated 10.2.1992 with her in respect of some dispute. There are allegations that the agreement constituted the basis of an award of the same date pronounced by one Shri Naranjan Singh Saini, Advocate. The petitioner is alleged to have produced some other woman impersonating as Indrawati for execution of a false agreement and the award. The aforementioned impersonator was identified by two other Advocates, namely, Naranjan Singh Saini and Lal Ram Saini before the Court and by Lambardar, Gurcharan Singh before the Revenue Authority at the time of mutation. When these facts were revealed at the time of hearing of Civil Appeal No. 33 of 2003, titled `Hardev Singh versus Rameshwar Das and others before the Court of Additional District Judge, Kurukshetra, the learned Additional District Judge addressed a letter to the District and Sessions Judge, Kurukshetra for registration of a criminal case against the petitioner as well as the others. It is pertinent to mention that one Rameshwar Dass had filed a criminal complaint with similar allegations before the Chief Judicial Magistrate at Kurukshetra and the investigation by the police under Section 156(3) Criminal Procedure Code was ordered. The learned Sessions Judge, Kurukshetra, rejected the pre-arrest bail application on the ground that the custodial interrogation of the petitioner was necessary because only he could reveal the name of the woman who impersonated Indrawati for procuring Agreement and Award dated 10.2.1992. The argument of the petitioner with regard to compromise and affidavit dated 26.8.2004 alleged to have been executed by the legal representative of Rameshwar Dass son of late Smt. Indrawati exonerating the petitioner of all the allegations, was also rejected as the veracity to two documents, namely, Agreement and Award dated 10.2.1992 was yet to be established and the legal representatives had not produced the original compromise alongwith their affidavit before the Investigating Officer. 3. Ms. 3. Ms. Gargi Kumar, learned counsel for the petitioner has argued that no complaint could have been filed by the learned Additional District Judge for the registration of the FIR against the petitioner because under Section 340 Criminal Procedure Code, the only remedy with the Additional District Judge was to file a complaint. According to the learned counsel, the offences disclosed in the FIR have not been committed before the Court of learned Additional District Judge who lodged the FIR. Therefore, the bar created by Section 195 Criminal Procedure Code would come in the way of such a Court to file the FIR. The learned counsel has also argued that already a complaint was filed by Rameshwar Dass son of deceased Indrawati on similar facts. The complainant did not pursue the matter and no action was initiated by the police. The learned counsel has also pointed out that if any offence is alleged to have been committed, it was in 1992 and the FIR having been filed after such a delay, would not warrant a serious consideration and the concession of bail under Section 438 Criminal Procedure Code deserves to be extended. In support of her submissions, the learned counsel has placed reliance on a Division Bench judgment of Kerala High Court in the case of Thankamani v. Inspector General of Police, 2002(2) RCR(Criminal) 470, and argued that a Sessions Judge cannot direct the police to make inquiry/investigation. 4. Having heard the learned counsel at considerable length, I am of the considered view that no case for exercising discretion under Section 438 Criminal Procedure Code is made out. During the course of hearing of Civil Appeal No. 33 of 2003, titled `Hardev Singh versus Rameshwar Dass and others, the learned Additional District Judge came across a fraud committed by the petitioner. On the basis of record before the learned Additional District Judge, a letter was addressed by him to the learned District and Sessions Judge which constituted the basis for recording the FIR. The petitioner is alleged to have produced a woman in 1992 impersonating one Indrawati, who has died on 9.9.1983. The impersonator has been duly identified by other Advocates and an agreement was got executed from the impersonator in the name of Indrawati on 10.2.1992 and on the same day, award was announced by Shri Naranjan Singh Saini, Advocate. The petitioner is alleged to have produced a woman in 1992 impersonating one Indrawati, who has died on 9.9.1983. The impersonator has been duly identified by other Advocates and an agreement was got executed from the impersonator in the name of Indrawati on 10.2.1992 and on the same day, award was announced by Shri Naranjan Singh Saini, Advocate. The petitioner is alleged to have played a pivotal role in the execution of the fraud. It is also evident that the petitioner alongwith his other associates has misused his status as Advocate. Who was the woman produced for impersonating Indrawati ? Whether any consideration was paid to her by the petitioner in cash or kind. The aforementioned questions and many other related questions remain unsolved. In order to unfold the mystery, custodial interrogation of the petitioner would obviously be required. The Supreme Court in the case of State (CBI) v. Anil Sharma, 1997(4) RCR(Crl.) 268 (SC) : (1997)7 SCC 187, has observed that custodial interrogation is qualitatively more elicitation-oriented than questioning an accused who is armed with a cushioned order of pre-arrest bail. The following observations of their Lordships in the aforementioned case are also applicable to the facts of the present case, which read as under :- "Custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders." 5. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders." 5. The argument of the learned counsel that there is a bar on the power of the Additional District Judge or the District Judge from filing an FIR has not impressed me because filing of a complaint under Section 340 read with Section 195 Criminal Procedure Code is entirely a different matter because the offences under Section 419 Indian Penal Code or Section 468 Indian Penal Code which are allegedly committed by the petitioner are not covered by Section 195(1)(a) and (1)(b) Criminal Procedure Code. Moreover, complaint has been filed in writing through the District Judge to whom the Court of Additional District Judge is subordinate. The judgment of the Kerala High Court in Thankamanis case (supra) on which reliance has been placed, does not advance the case of the petitioner because there, the investigation has been ordered by the Sessions Judge in respect of offences covered by Section 195(1)(b) Criminal Procedure Code. In such a case, Division Bench recorded the conclusion that the complaint could have been filed by the Sessions Judge before the Magistrate under Section 340 Criminal Procedure Code. There cannot be any dispute with the aforementioned proposition of law. However, the cases involving impersonation alongwith forgery of documents as blatant as the present case are not covered by the provisions of Section 195(1)(a) and (1)(b). Therefore, I am not impressed with the arguments raised by the learned counsel. I am also not persuaded to accept the other arguments of delay. Indrawati died in 1983. Two documents have been executed when the petitioner is alleged to have procured a woman to impersonate Indrawati on 10.2.1992 who has been used as the basis for pronouncement of award. Rameshwar Dass son of deceased Indrawati has also died and was not able to pursue his complaint. Despite the fact that the same was referred to the police by the Magistrate for investigation under Section 156(3) Criminal Procedure Code. Neither the delay nor filing of earlier complaint would help the petitioner in getting an order of pre-arrest bail because the investigating agency has to find out numerous facts which could be possible only if custodial interrogation of the petitioner is undertaken. Neither the delay nor filing of earlier complaint would help the petitioner in getting an order of pre-arrest bail because the investigating agency has to find out numerous facts which could be possible only if custodial interrogation of the petitioner is undertaken. Therefore, I do not find any substance in the arguments raised by the learned counsel. For the reasons aforesaid, this petition fails and the same is dismissed. However, any observations made in this order shall not be considered as an expression of opinion on the merits of the case and the trial Court shall not be influenced by the same.