Crl. Rev. No. 35 of 2005 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 35 of 2005 (O&M) Date of decision:- 15.2.2011 Tarlochan Singh ... Petitioner Versus State of Punjab ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Ms. Monika Jalota, Advocate as Amicus Curiae, for the petitioner. Mr. P.S.Paul, D.A.G., Punjab. Gurdev Singh, J (oral) The Punjab State through its Junior Engineer, Office of Administrator Urban Estate Punjab, Jalandhar, filed complaint against the present petitioner/accused-Tarlochan Singh and Jarnail Singh under Section 11(1) read with Section 3(1) and 8(1) of the Punjab Regulation of Colonies Act, 1975 (hereinafter referred to as the 'Act'). As per the contentions made in the complaint-Jarnail Singh was the owner of the land comprised Khasra Nos.4331/566, 567, 568, 569, 589 and 590, situated in village Pharala, Tehsil Phagwara, District Kapurthala, as entered in the Jamabandi for the year 1990-91. That Jarnail Singh had appointed Tarlochan Singh as his General Attorney. Both the accused divided the land in dispute into more than five plots for the purpose of transfer for residential, commercial and industrial purposes and thus set up a "colony" as described in Section 2(1) of the Act. They sold those plots to Neelam, Talban Singh, Jagan Nath, Crl. Rev. No. 35 of 2005 (O&M) -2- Asha Rani, Gurdial Singh, Ram Pal, Santosh Rani, Usha Rani and Mohinder Partap Singh, vide different registered sale deeds. The details of the areas of those plots, the date of the sale deed and the price for which those plots had been sold were given in para No.3 of the complaint. Before setting up the colony the accused did not obtain any license as required by Section 4 (2) of the Act and thus committed aforesaid offences. Before filing the complaint sanction was duly obtained from the competent authority. As the complaint was filed by a public servant in the discharge of his official duties, so the accused were summoned without recording any preliminary evidence. Jarnail Singh-accused did not appear before the trial Court in spite of the issuance of processes and proclamation under Section 82 of the Cr.P.C and was declared as proclaimed offender. Tarlochan Singh-accused appeared. The complainant produced pre-charge evidence and on the basis thereof, the Judicial Magistrate, Ist Class, came to the conclusion that the said accused prima facie committed offence punishable under Section 11(1) of the Act. He was charged accordingly, to which he pleaded not guilty and claimed trial. After the framing of the charge, an opportunity was given to the accused to further cross-examine the witnesses already examined by the complainant in pre-charge evidence. The complainant examined Manish Kumar, Kamal Kishore, Ajaib Ram, Sukhdarshan Singh Patwari and Daljit Singh J.E. After the evidence was closed by the complainant. The accused was examined and his statement was recorded by the trial Court under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to Crl. Rev. No. 35 of 2005 (O&M) -3- explain the same. He denied all those circumstances and pleaded his false implication. He was called upon to enter on his defence, but the did not produce any evidence in his defence. After going through the evidence so produced and hearing learned counsel for the accused and complaint, the Judicial Magistrate, Ist Class, Phagwara convicted the accused for the offence under Section 11(1) of the Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.3000/- and in default thereof to further undergo rigorous imprisonment for three months, vide judgment dated 17.2.2004. Against that conviction and sentence the accused preferred an appeal, which was dismissed by Sessions Judge, Kapurthala, vide judgment dated 17.12.2004. Now the present revision petition has been preferred by the accused against that conviction and sentence. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner that from the evidence produced by the complainant, it cannot be said that accused set up a colony within the meaning of Section 2(c) of the Act. There is no evidence for concluding that the transfer of the plots was for the residential, commercial or industrial purposes. Therefore, the accused could not have been convicted. The sanction order was passed only in respect of two khasra Nos. i.e. 589 and 590, whereas the allegations against the accused are that the land was sold from other khasra numbers also. Therefore, this sanction order could not have been used in respect of other khasra numbers and that also creates a doubt, if the accused could have been prosecuted under the Act for setting up colony. She also submitted that the Crl. Rev. No. 35 of 2005 (O&M) -4- present accused had sold the land of Jarnail Singh- accused only as attorney and he could not be made criminally liable for the acts which were committed by the other accused through him. In the last, it was submitted by her that in case this Court is not inclined to acquit the accused then he be granted the benefit of probation as he is not a previous convict and he was not the beneficiary, but only acted as attorney of Jarnail Singh-accused, who was declared as proclaimed offender and no further proceedings have been taken against him by the complainant. The learned State counsel made her submissions in order to counter the arguments raised on behalf of the accused. According to her the purpose of the sale of plots is reflected from the contents of the sale deed itself. There was no question of transferring the plots of small areas only for agricultural purposes. The areas of the plot so sold itself suggest that the transfers were made for residential purposes. Even more than five plots were sold out of khasra Nos. 589 and 590 and in case the sanction order is taken only in respect of those khasra numbers, even then it was vaild sanction for the prosecution of the accused for the offence under the Act. The attorney is equally liable as was held by the Apex Court in Crl. Appeal Nos. 840-841 of 1998 (arising out of S.L.P (Criminal) No. 4035-36 of 1996 decided on 21.8.1998). She also submitted that keeping in view the benefit drawn by the accused by making sale for commercial purposes, he is not entitled to the benefit of the probation and the same was validly disallowed by the trial Court and the appellate Court. The colony has been defined in Section 2(c) of the Act and it means compact area of land, which has been divided for the purpose of Crl. Rev. No. 35 of 2005 (O&M) -5- transfer, otherwise by way of gift into five or more plots for residential, commercial, industrial or any other building purpose, other than for agriculture or any purpose subservient to agriculture. In the complaint nine sale deeds have been mentioned, which were so executed by Jarnail Singh, through its attorney Tarlochan Singh – accused. Those sale deeds were proved on the record as Ex.PW2/1, PW2/3, PW2/5, PW2/7, PW2/9, PW2/11, PW2/13, PW2/15 and PW2/17. Vide those sale deeds small plots of the areas ranging from 5 ½ marlas to 22 ½ marlas were sold. Such like small plots cannot be said to have been sold for the purposes of agriculture. It is mentioned in all the sale deeds that the vendee can use the plots for any purpose as per his choice. Previously this was a compact land as is depicted from the Jamabandi for the year 1990-91 Ex.PW5/2. A presumption can easily be drawn that the compact area was divided into plots of small areas either for residential purposes or for commercial purposes. From the evidence produced by the complainant it stands proved that the accused set up a colony within a meaning of Section 2(c) of the Act. According to Section 13 of the Act, no prosecution under the Act can be instituted without previous sanction. The Sanction order has been proved on the record as PW4/1. No doubt it is mentioned in the first part of that order that the accused has sold the plots out of his land bearing Khasra No. 589(7-7) and 590 (9-0), but in the subsequent part of that sanction order the details of sales are mentioned. That sanction order is to be read along with sale deeds mentioned therein. Khasra numbers are mentioned in those sales and non-mentioning of other khasra numbers in the first part of the order will not make that sanction order illegal or defective. The sanction Crl. Rev. No. 35 of 2005 (O&M) -6- was granted for the prosecution of the accused for dividing compact area of his land into nine plots for the residential, industrial or commercial purposes. It is the case of the complainant himself that the land was owned by Jarnail Singh and the sale deeds were executed by him through Tarlochan Singh, as his general attorney. So far as criminal liability of the general attorney is concerned the matter is no more res integra, in view of the above referred judgment of the Hon'ble Supreme Court, which was followed by this Court in Crl. Revision No. 1217 of 1997, decided on 1.12.1998. It was held by the Hon'ble Supreme Court that attorney is equally responsible for the act as that act does not distinguish between the owner and the attorney. In view of that authoritative pronouncement the argument that the attorney cannot be made liable under the Act is not available to the accused. From the above discussion, I concluded that no ground is made out for interfering in the findings of conviction recorded by the trial Court and upheld by the appellate Court. Therefore, conviction of the accused is upheld. It was neither alleged by the complainant nor it was proved on the record that the accused is a previous convict. The maximum sentence provided under Section 11(1) of the Act is three years. Thus, as per the provisions of Section 360 Cr.P.C, the accused was entitled to the benefit of probation and the lower Courts were required, as per Section 361 Cr.P.C, to record special reasons for denying that benefit. No such special reasons were recorded by the trial Court. However, the appellate Court recorded in Crl. Rev. No. 35 of 2005 (O&M) -7- the judgment that benefit of probation cannot be extended to the accused as his sole object was to have commercial gain by the sale of the compact land after carving out the plots therefrom. It is pertinent to note that this accused sold the plots only as attorney of the original owner and the beneficiary was the real owner itself. Keeping in view the nature of the accusation against the accused and the nature of the offence, I think it proper and expedient to release him on probation instead of sentencing him at once to any punishment. Accordingly, the sentence so imposed upon him is set aside and he is ordered to be released on probation under Section 360 Cr.P.C on his executing personal bond in the sum of `10,000/- with a surety of the like amount for a period of three years to receive the sentence as an when called upon to do so during that period and to keep peace and be of good behavior in the meanwhile. He is directed to pay to the complainant a sum of `10,000/- as compensation under Section 357 Cr.P.C. The amount of fine, if already deposited, shall be adjusted towards that compensation. The bonds are to be furnished and the compensation is to be paid/deposited in the trial Court within two months of the passing of this judgment. In the event of the failure of the accused to furnish those bonds and to pay compensation, this revision petition shall stands dismissed. Records be returned forthwith. February 15, 2011 (Gurdev Singh) tripti Judge