CRM-M-29352-2011 [ 1 ] :::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-29352-2011 Date of decision:16.11.2011 Rajvinder Singh ...Petitioner Versus State of Punjab ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Bipan Ghai, Senior Advocate, with Ms. Anju Sharma, Advocate, for the petitioner. Mr. A.S.Rai, DAG, Punjab. Mr. Vikram Bali, Advocate, for the complainant. ***** RAKESH KUMAR JAIN, J. The petitioner has prayed for regular bail under Section 439 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”] read with Section 437(6) of Cr.P.C. in a case registered vide FIR No.21 dated 13.02.2011, under Sections 420, 467, 468, 471, 120-B of IPC at Police Station Sadar, Ludhiana. The FIR is registered by one Boota Singh in which he has alleged that the petitioner alongwith his wife approached him and Harminder Singh for sale of land measuring 13 Kanals 2/3 Marlas claiming themselves to be owners thereof on the basis of sale deed dated 26.07.2010, registered vide Vasika No.4298, by one Jasjit Singh Gill through his attorney Mohinder Singh vide Power of Attorney dated 19.05.1987 registered vide Vasika No.785 in the office of Sub Registrar, Ludhiana. Accordingly, an agreement to sell dated 06.08.2010 was executed for a sum of `2 crores against which `30 lacs was paid and the sale deed was agreed to be executed on 21.02.2011. It is further alleged that the complainant came to know that Power of Attorney dated CRM-M-29352-2011 [ 2 ] :::::::: 19.05.1987 allegedly executed by Jasjit Singh Gill in favour of Mohinder Singh on the basis of which the petitioner and his wife are alleged to have become owners of the property in dispute by virtue of sale deed dated 26.07.2010 was actually not executed by Jasjit Singh Gill as his signatures were forged on the said Power of Attorney. It was, thus, alleged that the complainant has been duped of a sum of `30 lacs which has been paid as earnest money. It was also alleged that the said Jasjit Singh Gill, who happens to be an NRI, had already lodged FIR No.384 dated 14.09.2010, under Sections 419, 420, 465, 467, 468, 471, 120-B IPC at Police Station Division No.5, Civil Lines, Ludhiana City about the forgery of the General Power of Attorney. Learned counsel for the petitioner has submitted that the sale deed in favour of the petitioner was executed on 26.07.2010 and the FIR No.384 dated 14.09.2010 was registered against the petitioner as well but in that case, he has been granted bail by the learned Judicial Magistrate 1st Class (D), Ludhiana vide his order dated 29.08.2011 in terms of Section 437(6) of the Cr.P.C. The petitioner had applied for bail under Section 437(6) of the Cr.P.C. in the present case, i.e. FIR No.21 dated 13.02.2011, under Sections 420, 467, 468, 471, 120-B of IPC at Police Station Sadar, Ludhiana which has been dismissed by the same Judicial Magistrate vide his order dated 10.08.2011 (Annexure P-4A) although Section 467 IPC is a part of both the FIR Nos.384 and 21. He has further submitted that against the said order of rejection of bail application dated 10.08.2011, the petitioner had filed criminal revision which was dismissed by the learned Additional Sessions Judge, Fast Track Court, Ludhiana vide his order dated 10.09.2011. It is also submitted that in 2 other cases, which are alleged to have been registered against the petitioner, the untraced report has already been accepted vide Annexures P-7 and P-8 and despite the fact that the charge was framed on 04.06.2011 and more than 60 days have expired without there being any fault on the part of the petitioner, the prosecution has failed to lead any evidence as till today no PW has been examined. He has also submitted that even on merits, the petitioner deserves concession of bail because he had purchased the suit land from Jasjit Singh Gill who had sold it through his general power of attorney and a civil suit is also pending wherein it is yet to be determined as to whether the said general power of attorney was forged or not? In order to prove prima facie that there is no CRM-M-29352-2011 [ 3 ] :::::::: fault of the petitioner in delaying the trial of the case, he has referred to the zimni orders w.e.f. 04.06.2011 till 26.08.2011 from which it is apparent that the prosecution witnesses had never been present for the purpose of their examination leading to unnecessary incarceration of the petitioner. On the other hand, learned State Counsel has submitted that the petitioner cannot be granted concession of bail under Section 437(6) of Cr.P.C. because the offence committed by the petitioner is not only heinous but Section 467 IPC also attracts the punishment which could be up to life imprisonment. Learned counsel for the complainant has also vehemently opposed the bail application and has contended that the delay in trial could not be a solitary ground for the purpose of grant of bail under Section 467(6) Cr.P.C. if the petitioner is a habitual offender or the offence is heinous. I have heard learned counsel for the parties and perused the available record from which I have found that the petitioner is in custody since 30.04.2011; the charge was framed on 04.06.2011 and the prosecution evidence had started on 01.07.2011 and despite the case having been adjourned for 15.07.2011, 29.07.2011, 12.08.2011 and 26.08.2011, the prosecution has failed to lead any evidence and it is admitted by the learned State Counsel that no prosecution evidence was examined till the case was heard and reserved for orders by this Court. It is also worthwhile to mention here that as per the zimni orders, there is no fault of the petitioner in delaying the trial and as per Section 467(6) Cr.P.C., since the case is triable by the Magistrate, therefore, he has the jurisdiction to grant bail. In this regard, learned counsel for the petitioner has also relied upon a decision of the Sukhdev Singh v. State of Punjab, 2009(3) RCR (Criminal) 291. Moreover, on the same set of circumstances, the learned Judicial Magistrate has granted bail to the petitioner under Section 437(6) of Cr.P.C., in FIR No.384 dated 14.09.2010 and the same Judicial Magistrate has declined the bail application filed under Section 437(6) Cr.P.C. while dealing with the FIR No.21 dated 13.02.2011, while observing that Section 467 IPC provides punishment for life. The same Court in the same set of circumstances cannot adopt different yardsticks for dealing with the bail application. Insofar as the pendency of the other cases against the petitioner is CRM-M-29352-2011 [ 4 ] :::::::: concerned, copy of Annexures P-7 and P-8 on record show that the said two cases against the petitioner have already been closed as the untraced report has already been accepted by the learned Magistrate. Even on merits, the petitioner is the purchaser and with regard to the alleged fraud pertaining to the forged general power of attorney dated 11.05.1987 on the basis of which the property in dispute has been sold, a civil suit is already pending. Keeping in view the facts and circumstances of the case, but without making any observation on the merits, the present petition is allowed. The petitioner is ordered to be released on bail on his furnishing bail bonds to the satisfaction of the learned Trial Court. November 16, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE