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2010 DIGILAW 2354 (PNJ)

Dharambir v. State of Haryana

2010-08-17

GURDEV SINGH

body2010
JUDGMENT Mr. Gurdev Singh, J.:- This petition under Section 482 of the Code of Criminal Procedure(hereinafter referred to as “the Code”) invoking the inherent jurisdiction of this Court has been filed by Dharambir-petitioner, for cancellation of the Investigation Report dated 17.3.2009 in FIR No. 83 dated 30.6.2007 registered under Sections 419, 420, 467, 468, 471 and 120- B of the Indian Penal Code in Police Station Shadaura District Yamuna Nagar and for issuance of direction for re-investigation by some independent agency. 2. It has been averred in the petition by Dharambir-petitioner complainant, that he got lodged the above said FIR. He stated therein that he entered into an agreement dated 18.9.2006 with one Faquiria, for the purchase of the land situated in village Chanchak at the rate of Rs.2,30,000/- per acre. At that time a sum of Rs. 6 lacs was received by Asludeen by telling his name as Faquiria. The date for registration of the sale deed was fixed as 30.7.2007 and he got his presence marked before the Sub Registrar on that date by getting an affidavit attested to that effect. He served a legal notice through his counsel upon the owner, Faquiria, and only thereafter he came to know that it was Asludeen, who executed the agreement by impersonating himself as Faquiria, thereby committing the fraud. When he asked Asludeen about the fraud, he replied that he had not executed any such agreement. During the investigation of that FIR, statements of attesting witnesses to the agreement to sell were recorded by Sultan Singh, Investigating Officer on 30.6.2007 and at that time both of them supported the version given by him in the FIR. Statement of Faquiria was also recorded by the Investigating Officer and he had stated that Asludeen and Gulab Singh connived with each other to commit the fraud in order to grab his money. It was on the basis of that statement that Asludeen was arrested on 1.7.2007 and was released on bail. In respect of this investigation the report was not submitted under Section 173 of the Code for a period of about two years. After the expiry of that period, the Investigating Officer was changed, who suddenly changed the flow of investigation and diverted the same so as to make him as an accused. In respect of this investigation the report was not submitted under Section 173 of the Code for a period of about two years. After the expiry of that period, the Investigating Officer was changed, who suddenly changed the flow of investigation and diverted the same so as to make him as an accused. That Investigating Officer, who is the SHO of the police station, again recorded the statements of the witnesses containing entirely different version. Their second statements were recorded without any cogent reason. On the basis of their second statements, he was arrested and was produced before the Court. The report under Section 173 of the Code has already been submitted against him as an accused. No reason has been given as to why the earlier statements of the above said witnesses had been changed suddenly after two years. In fact he is victim but has been made an accused. 3. The petition was contested by the respondent. It has been stated in the reply that the petitioner was joined in the investigation and he has stated that the agreement was struck at the house of Gulab Singh. On 1.7.2007, Asludeen was arrested and suffered a disclosure statement that he along with Gulab Singh had prepared the forged document and shared the sum of Rs. 6 lacs. Faquiria moved an application on 16.7.2007 and in order to verify the facts stated in that application, an enquiry was conducted by the DSP, who joined 65 persons during the course of investigation. All these persons stated that Faquiria did not enter into the agreement to sell with Dharambir and, Asludeen and Gulab Singh in connivance with each other prepared the forged agreement. The DSP issued directions to the SHO of the police station to arrest Gulab Singh,. Asludeen and one Mushtak tendered their affidavits dated 25.11.2008 making the request to send the signatures of Asludeen for comparison with his purported signatures on the agreement to sell as Faquiria. Accordingly, those signatures were sent to the FSL, Madhuban for comparison. Rameshwar and Ashwani Kumar, attesting witnesses of the agreement were joined in the investigation and their statements were recorded. Both of them stated that it was Dharambir, who obtained their signatures on the agreement by saying that he has purchased the land and wants their signatures as witnesses. It was only thereafter that the petitioner was arrested on 7.3.2009. Rameshwar and Ashwani Kumar, attesting witnesses of the agreement were joined in the investigation and their statements were recorded. Both of them stated that it was Dharambir, who obtained their signatures on the agreement by saying that he has purchased the land and wants their signatures as witnesses. It was only thereafter that the petitioner was arrested on 7.3.2009. After Gulab Singh was joined in the investigation, he disclosed that he along with the petitioner and Asludeen hatched a conspiracy to grab the land of Faquiria by fabricating agreement to sell dated 18.2.2006. In the aforesaid investigation, statements of other witnesses were recorded and after sufficient evidence was collected, the final report under Section 173 of the Code was submitted. 4. I have heard learned counsel for both the sides. 5. It has been submitted by learned counsel for the petitioner that after the registration of the FIR, the investigation was conducted by Sultan Singh, SI, who recorded the statement of Ashwani Kumar and Rameshwar, and they fully supported the version of the petitioner as given in the FIR. Both of them stated that it was Asludeen, who impersonated himself as Faquiria and executed the agreement to sell in favour of the petitioner. Once that evidence has been collected, the Investigating agency was to submit the challan against Asludeen. The Investigating agency took a somersault and again recorded the statements of these witnesses to the effect that the agreement to sell has been forged by the petitioner himself. The same was not permissible. That itself is a ground for quashing the report submitted against the petitioner under Section 173 of the Code and for ordering reinvestigation by some independent agency. 6. It has been submitted by learned State counsel that an application was moved by Asludeen, in which enquiry was conducted by DSP and during that enquiry it transpired that in fact the petitioner conspired with others to fabricate the agreement in question in order to usurp the land of Faquiria. Thereafter, the statements of the attesting witnesses of the agreement were recorded and they come out with the statements that the agreement to sell has been fabricated by the petitioner with their connivance. 7. The questions raised in the present petition are disputed questions of facts and the same cannot be decided while dealing with the present petition. The remedy of the petitioner lies before the trial court itself. 7. The questions raised in the present petition are disputed questions of facts and the same cannot be decided while dealing with the present petition. The remedy of the petitioner lies before the trial court itself. In case he is not satisfied with the report submitted under Section 173 of the Code, he can file a private complaint under Section 200 of the Code. This Court cannot order re-investigation as the same is not permissible. There can only be an order of further investigation. When the petitioner has an alternative remedy, the present petition is not competent. The petition is dismissed accordingly. ------------