In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.M-8248 of 2010 ..... Date of decision:1.4.2010 Rakesh Garg .....Petitioner v. State of Haryana .....Respondent .... Present: Mr. Atul Lakhanpal, Senior Advocate with Mr. Rohit Sharma, Advocate for the petitioner. Mr. Vikas Malik, Assistant Advocate General, Haryana for the respondent-State. Mr. Naresh K. Joshi, Advocate (Amicus Curiae). ..... S.S. Saron, J. Heard learned counsel for the respective parties and Mr. Naresh K. Joshi, Advocate (Amicus Curiae). The petitioner Rakesh Garg seeks pre-arrest bail in a case registered against him on 12.12.2009 for the offences under Sections 406, 420, 467, 468, 471/120-B IPC. The facts of the case are that Joginder Singh was facing trial for uxoricide of Smt. Laxmi Devi. His four minor daughters, namely, Usha Devi, Karamjeet Devi, Rajni Devi and Kajal through their maternal uncle Balwant Singh filed a suit for maintenance against Joginder Singh. The learned Civil Judge, Pehowa vide order dated 8.2.2005 directed aforesaid Joginder Singh who was defendant in the suit to pay interim maintenance of Cr. Misc. No.M-8248 of 2010 [2] Rs.3,000/- per month out of the income of the property. In terms of a separate order passed on the same date, Joginder Singh defendant was allowed to alienate the suit property subject to the condition that the maintenance of his daughters would be a first charge on the suit property i.e. agricultural land measuring 40 Kanals. Joginder Singh, however, vide sale deed dated 1.9.2006 sold the suit land measuring 40 Kanals to the petitioner Kashmir Singh and his co-accused Manjit Singh for a sale consideration of Rs.20 Lacs without making a recital in the sale deed regarding creation of charge. The possession of the land was also delivered. After one day of the execution of the sale deed i.e. on 2.9.2006, Joginder Singh-the seller and Manjit Singh-the purchaser recorded another agreement in which it is mentioned that Manjit Singh had purchased the land which was owned by Joginder Singh. It is further mentioned that a case between them with respect to the land was pending before the Court at Pehowa. Manjit Singh had kept with him an amount of Rs.15 Lacs of the seller-Joginder Singh as trust money. The purchaser Manjit Singh agreed that till the case of Joginder Singh was not decided, the aforesaid amount of Rs.15 Lacs would be retained in trust. Out of the said amount of Rs.15 Lacs the expenses meaning thereby the expenditure incurred on the case would be deducted, besides, Manjit Singh would be bound and responsible to return the remaining amount to the second party after the decision of the case. An interest would be charged on the balance amount. It may also be noticed that the time of registration of the sale deed on 1.9.2006 Manjit Singh-the purchaser furnished an affidavit before the registration authority which is to the effect that the civil suit filed by Usha Devi and the three other daughters of Joginder Singh seller regarding sale of the land had been settled and no case/appeal had been filed and if in case an appeal is filed he (Manjit Singh) Cr. Misc. No.M-8248 of 2010 [3] shall be responsible for the same. Thereafter, the petitioner and his co- accused Manjit Singh sold the land to Smt. Vijay Kumari, Smt. Kusum Kansal and Smt. Shalu for an amount of Rs.20,50,000/- vide sale deed dated 30.3.2007. An amount of Rs.15 Lacs was, however, retained by the aforementioned vendees, namely, Smt. Vijay Kumari, Smt. Kusum Kansal and Smt. Shalu in lieu of the charge of maintenance of the minor daughters of Joginder Singh. The surreptitious manner in which the property of the minor daughters of Joginder Singh, namely, Usha Devi and others was being misappropriated was noticed by this Court during the hearing of Civil Revision No.4919 of 2009 which was filed by Smt. Vijay Kumari and others, the subsequent vendees from Manjit Singh and Kashmir Singh against Usha Devi and three other daughters of Joginder Singh. The revision petition was against an order dated 17.4.2009 passed by the learned Civil Judge (Junior Division), Pehowa whereby an application under Order 1 Rule 10 of the Code of Civil Procedure filed by Vijay Kumari and others- subsequent vendees for their impleadment in the civil suit filed by the daughters of Joginder Singh for the grant of maintenance against their father Joginder Singh had been dismissed. This Court vide order dated 31.8.2009 passed in Civil Revision No.4919 of 2009 was of the view that not even a penny had been paid to the poor girls i.e. the daughters of Joginder Singh. Besides, Joginder Singh had sold the land to one Manjit Singh on 1.9.2006 from whom the petitioners therein i.e. Vijay Kumari and others had purchased the land vide sale deed dated 30.3.2007. The petitioners Vijay Kumari and others were directed to file an affidavit explaining (i) the source of their income; (ii) income tax returns, and (iii) the mode of the payment of the sale consideration to Manjit Singh. Since the rights and very survival of Cr. Misc. No.M-8248 of 2010 [4] the poor minor sisters was involved and the suit land was likely to exchange more hands to strengthen the conspirated plea of `bona fide purchasers’, the petitioners in the Civil Revision i.e. Vijay Kumari and others were restrained from alienating or creating any kind of encumbrances of the suit land. The Deputy Commissioner, Kurukshetra and Naib Tehsildar, Ismailabad were directed to make necessary entries in the revenue records, if not already made and not to entertain any transaction whatsoever in respect of the suit land till further orders. A restraint was also put on Joginder Singh from selling /transferring and/or creating any encumbrances on the suit land. The Deputy Commissioner, Kurukshetra and Naib Tehsildar, Ismailabad were asked to file their affidavits in compliance. The Naib Tehsildar, Ismailabad was asked to remain present in Court to explain why penal action be not taken for his prima facie collusion with Joginder Singh and the subsequent vendees when the sale deeds were registered without recital regarding charge for maintenance. Manjit Singh was impleaded as respondent No.6 to the said petition. Thereafter, vide order dated 8.9.2009 compliance of the earlier order dated 31.8.2009 regarding entries in the revenue record were submitted in this Court. Mr. Lehna Singh, Naib Tehsildar, Ismailabad and Mr. Rakesh Garg (petitioner), the then Naib Tehsildar, Ismailabad were present in Court. The sale deed dated 1.9.2006 executed by Joginder Singh in favour of Manjit Singh and the Kashmir Singh and also the sale deed dated 30.3.2007 executed by Manjit Singh and Kashmir Singh in favour of Vijay Kumari and others were placed on record. This Court was of the view that the then Naib Tehsildar, Ismailabad (petitioner) appeared to be hands in glove and had concealed the order of the Civil Court creating charge over the land and made no entry in the revenue record. Before issuing further directions, this Court deemed it Cr. Misc. No.M-8248 of 2010 [5] appropriate to enable the State Government to get the element of mens rea examined from the Deputy Commissioner, Kurukshetra. The Deputy Commissioner vide his report dated 24.9.2009 held that there was conspiracy, collusion and cheating between the vendor, vendees, Naib Tehsildar (petitioner) and other officials. It was concluded by the Deputy Commissioner that the two conspirators, namely, the Naib Tehsildar (petitioner) and the Registry Clerk being Government servants, the State Government was competent to take action against them under Rule 7 of the Haryana Civil Service (Punishment and Appeal) Rules, 1987. The copy of the inquiry report was also endorsed to the Superintendent of Police, Kurukshetra with a request to lodge a FIR and take immediate action against the officers and persons found liable as mentioned in the inquiry report. This Court vide order dated 20.11.2009 modified the order dated 25.9.2009 to the extent that the Superintendent of Police, Kurukshetra was to act upon the report dated 24.9.2009 of the Deputy Commissioner and register an appropriate case against the suspects (except the three lady petitioners) and appoint a senior police officer as investigating officer who would take immediate action against all the suspects. In consequence of the said directions FIR No.142 dated 12.12.2009 for the offences under Sections 406, 420, 467, 468, 471 and 120-B IPC has been registered at Police Station Ismailabad, District Kurukshetra. The petitioner-Rakesh Garg was Naib Tehsildar, Ismailabad at the relevant time when the sale deed dated 1.9.2006 was registered. The sale deed was executed by Joginder Singh in favour of Mohinder Singh and Kashmir Singh. The petitioner moved an application to recall the order dated 20.11.2009 in terms of which the Superintendent of Police, Kurukshetra was directed to act on the report dated 24.9.2009 of the Deputy Cr. Misc. No.M-8248 of 2010 [6] Commissioner, Kurukshetra and register an appropriate case against the suspects (excepts the three ladies Smt. Vijay Kumari, Smt. Kusum Kansal and Smt. Shalu) who were the purchasers of the land from Manjit Singh and Kashmir Singh. The petitioner also prayed for ad interim bail against his arrest. This Court issued notice on 24.12.2009 on the said application but did not provide any interim protection. The petitioner thereafter by concealing material facts including the series of orders passed by this Court in Civil Revision No.4919 of 2009; filed a petition i.e. Criminal Misc. No.M-37127 of 2009 during the winter break of the High Court on 31.12.2009. The complete position and information was not mentioned in the said petition. The petitioner succeeded in getting said petition admitted with an interim order that further proceedings qua him only shall remain stayed. This Court thereafter vide order dated 15.1.2010 was of the view that the said direction staying the proceedings against the petitioner were directly in conflict with the earlier directions passed from time to time in Civil Revision No.4919 of 2009. As a consequence of the order dated 31.12.2009 granting stay it was noticed that the on going investigations as well as the proceedings in the revision petition had been brought to hold. It was observed that material facts noticed in the interim order dated 31.12.2009 passed in Criminal Misc. No.M-37127 of 2009 during the winter break were totally against the record. The records of the said criminal miscellaneous petition were ordered to be placed before the Hon’ble the Chief Justice for immediate listing of the said petition for final hearing before an appropriate Bench. In Civil Revision No.4919 of 2009 the State counsel, on instructions from Inspector Rajinder Singh, State Vigilance Bureau, Ambala Range, Ambala informed that challan in FIR No.3 dated 16.1.2009 registered at Police Cr. Misc. No.M-8248 of 2010 [7] Station State Vigilance Bureau, Ambala was being presented on 15.1.2010 before the Special Court at Kaithal. The Criminal Misc. No.M-37127 of 2009 for quashing the FIR has since been dismissed vide order dated 26.2.2010. The petitioner has, therefore, sought pre-arrest bail. It may be noticed that in the inquiry dated 24.9.2009 conducted by the Deputy Commissioner, Kurukshetra as regards the petitioner, it was held that the order dated 8.2.2005 passed by the Civil Judge (Senior Division), Pehowa was submitted to the Naib Tehsildar, Ismailabad (petitioner). It was even otherwise not disputed that the said order dated 8.2.2005 had been received in the office of the Naib Tehsildar, Ismailabad as the petitioner in his statement admitted that the order was dated 8.2.2005 of the Civil Court was enclosed with the sale deed prosecuted for registration but the same was wrongly misinterpreted and the sale of land was allowed to be registered. The Deputy Commissioner, Kurukshetra in his report observed that the petitioner not only failed to get the revenue records changed by recording the fact of charge of maintenance over the suit land as per the Civil Court order but also allowed the sale deed to be registered. He was not only duty bound to obey the Court order as a public servant but was also responsible to secure the legal rights of the girls when the facts of the Court orders were received by him. It was observed by the Deputy Commissioner, Kurukshetra that no doubt that most of the witnesses stated that no illegal gratification was demanded or paid to the Naib Tehsildar (petitioner) but that does not enable him to be set free. It was observed that it was the duty of the petitioner to comply with the directions of the Civil Court. It was also observed that the petitioner had not only not discharged his duty but had also disobeyed the Court order thereby depriving the girls (daughters of Joginder Singh) of their legal rights of Cr. Misc. No.M-8248 of 2010 [8] maintenance in collusion with Joginder Singh and others. The case of the petitioner was recommended to the State Government for initiating departmental action under Rule 7 of the Haryana Civil Service (Punishment and Appeal) Rules, 1987. It is stated in the petition that at the time of registration of sale deed dated 1.9.2006 executed by Joginder Singh in favour of Manjit Singh and Kashmir Singh, the petitioner was shown the order and since Joginder Singh had been permitted to alienate the land the petitioner taking into consideration the pending litigation directed the vendor and vendees to furnish affidavits which were furnished and attached with the sale deed. The affidavits (Annexures-P.3 to P.5) are attached with the petition. The petitioner, it is stated, was under the bona fide impression that since the charge had been created on the suit property it would remain even after transfer as per order of the learned Civil Court. Besides, under the provisions of the Indian Registration Act, 1908 the petitioner being the registering authority cannot refuse to register a document coupled with the fact that the vendor had been permitted to sell the land by the competent Court and also to deposit Rs.15 Lacs in the names of his daughters and even Manjit Singh had paid Rs.5 Lacs to the daughters and had undertaken to pay Rs.10 Lacs. In this regard, it may be noticed that the affidavits (Annexures- P.4 and P.5) on which reliance is placed by the petitioner had been deposed by Joginder Singh and Manjit Singh respectively on 1.9.2006 i.e. on the date of registration of the sale deed. In the said affidavits, it is stated that after the judgment dated 8.2.2005 no appeal had been filed against the said judgment in any Court and if there was any such appeal in any Court then the respective deponents would be responsible for the same and the revenue Cr. Misc. No.M-8248 of 2010 [9] Officer/Naib Tehsildar would not be responsible for that. In fact the question of appeal being filed or not was wholly inconsequential as in fact it was to be ensured that the charge that had been created by the Civil Court on the suit property was to be kept intact and a recital to that effect was to be mentioned in the sale deed. However, the petitioner allowed the same to be avoided and registered sale deed dated 1.9.2006. The purpose of the same appears to be to give advantage to Joginder Singh and the vendees to raise a plea of bona fide purchaser without notice express or implied of any right of charge. The subsequent sales by Manjit Singh and Kashmir Singh in favour of Smt. Vijay Kumari, Smt. Kusum Kansal and Smt. Shalu was without the rider of the charge being created on the properties. Therefore, the stand that has been taken that the petitioner had obtained the affidavits Annexures-P.4 and P.5 is of no consequence. The petitioner had also suppressed the facts of the various orders passed by this Court at the time of filing Criminal Misc. No.M-37127 of 2009. The said criminal miscellaneous petition has since been dismissed by this Court vide order dated 26.2.2010. The remedy of pre-arrest bail is somewhat extra-ordinary in character and in the facts and circumstances of the present case the petitioner is not entitled to the grant of concession of pre-arrest bail. Accordingly, the criminal miscellaneous petition is dismissed. However, in case the petitioner surrenders before the Police within three days of the receipt of copy of the orders and files an application for regular bail with advance copy to the Public Prosecutor, his application for regular bail shall be considered by the concerned Court immediately after the period of Police remand, if any. April 1, 2010. (S.S. Saron) Cr. Misc. No.M-8248 of 2010 [10] Judge *hsp*